Meston v Hutton [2003] WADC 51

Clarke v Yorke (1882) 31 WR 62

Davey v Harrow Corporation [1958] 1 QB 60

Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18

Hollis v Burton [1892] 3 Ch 226

Ketteman v Hansel Properties Ltd [1987] AC 189

Lowther v Heaver (1889) 41 Ch D 248

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Cropper v Smith (1884) 26 Ch D 700

Kripintiris v The Nominal Defendant (Qld) [1998] QCA 46

Sali v SPC Ltd (1993) 67 ALJR 515

1 NISBET DCJ: By a writ of summons filed in this Court on 28 September 2001 the plaintiff claimed "... damages arising out of injuries sustained by the plaintiff on 7 May 1999, which injuries were caused by the negligent driving of the defendant." The statement of claim was not filed in this Court until 6 February 2002. The first four paragraphs of the statement of claim read as follows:

"1. The Plaintiff is aged 33 years, having been born on 27 August 1968.

2. The Plaintiff is a secondary school teacher and was at all material times employed by the Education Department of Western Australia.

3. On the 7th day of May 1999 the Plaintiff in the course of her employment with the Education Department of Western Australia was a passenger in a double-decker bus ('the bus'). The bus was being driven by the Defendant. The Plaintiff was at the top of the staircase in the bus. The bus jolted severely and the Plaintiff lost her balance and fell down the staircase ('the accident').

4. The accident was caused solely by the negligence of the Defendant. The Defendant was a party to a contract of insurance as defined in the Motor Vehicle (Third Party Insurance) Act 1943-1976. By letter dated 8 November 1999 from the Insurance Commission of Western Australia ('ICWA') to the Plaintiff's solicitors, ICWA admitted liability and negligence for the accident on behalf of the Defendant but have put in issue the quantum of damages."

2 By par 1 of his defence filed 5 March 2002 the defendant pleaded:

"The defendant admits paragraphs 1 to 4 of the statement of claim and admits that he was negligent."

3 Subsequently the matter was entered for hearing and in accordance with the usual practice of the court, the matter was listed for a pre-trial conference which was held before a Registrar of the Court on 14 June 2002. In that conference the defendant was given leave to bring an application for leave to amend his defence so as to withdraw the admission of liability. That application was filed on 19 June 2002.

4 The proposed amended defence withdrew its admission of the facts pleaded in pars 3 and 4 of the statement of claim and further withdrew the admission of negligence. It then goes on as follows:

"2. Save that the defendant admits that on 7 May 1999 the plaintiff was a passenger in a double-decker bus being driven by the defendant, the defendant denies that he was negligent as alleged in paragraphs 3 and 4 of the statement of claim or at all and denies the plaintiff is entitled to the relief claimed or any relief.

3. If, which is denied, the defendant was negligent, then the defendant pleads in the alternative that the injuries sustained by the plaintiff were caused or alternatively contributed to by the plaintiff's own negligence.

(a) Standing at the top of the stairs in the bus without making use of any of the handgrips;

(b) Endeavouring to make her way down the stairs without using the handrail when she knew or ought to have known that the bus was about to move off from the traffic lights;

(c) Failing to take any or any sufficient steps to prevent herself falling down the stairs by holding onto the handrails provided;

(d) Moving around on the top floor of the bus whilst the bus was stationary when she knew or ought to have known that the bus would move off at any time."

5 On 29 August 2002 a Deputy Registrar of the Court granted the defendant leave to amend his defence in accordance with the proposed amended defence and made some other consequential orders and directions.

6 In "Pleadings: Principles and Practice" Jacob and Goldrein at p 200 the learned authors write in respect of the withdrawal of an admission:

"Where an amendment seeks to withdraw an admission, the court will inquire into the circumstances in which the admission was made. It will grant such leave only:

(b) where new facts have come to light justifying its withdrawal."

This is the law.

7 It has been applied in Western Australia for as long as I have been in practice. It is echoed by the author of "Civil Procedure in Western Australia" in his commentary on O 21 r 5 at par 21.5.42 although he adds the mantra replete throughout that particular work that leave to amend to withdraw an admission will be more difficult to obtain having regard to the principles of caseflow management. For my part, with the greatest respect, the principles of caseflow management have nothing to do with the matter. As the High Court observed in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353 at 357:

"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

8 Further, in another setting but equally as apt, it has been held that the Rules of Court are intended to be servants of justice not its master.

9 It should be observed in Queensland v J L Holdings Pty Ltd the High Court cited with approval Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220:

"... justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes ..."

10 Now it seems to me that here we have a plaintiff who fits within the description of personal litigant as used by Lord Griffiths in the passage cited above, and a defendant, who, whilst being sued in his private capacity is nevertheless represented by the compulsory statutory insurer, the Insurance Commission of Western Australia, a large corporation indeed.

11 In addition to "Pleadings: Principles and Practice", other works on practice and procedure (the White Book, Civil Procedure in Western Australia) cite Clarke v Yorke (1882) 31 WR 62 and Hollis v Burton [1892] 3 Ch 226 in support of the proposition that an admission may only be withdrawn with leave where it was made inadvertently or when new facts have come to light justifying its withdrawal.

12 In Hollis v Burton the infant beneficiary of a trust sued to enforce payment from the defendants of a sum of £2,000 which he said had been received by them as solicitors to the account of the trust and which they failed to re-invest upon proper mortgage security to the account of the trust. One of the partners of the defendant firm of solicitors, namely Jennings, was also one of the original trustees of the trust and he, having fallen into financial difficulties, appears to have acted alone in calling in the £2,000 which had been properly invested in a mortgage, and receiving the funds, had failed to re-invest it on behalf of the trust. Jennings admitted by his defence that the £2,000 had been paid by him to the firm, received by them and paid into the firm's account at the bank. Burton, the other partner in the firm and the other defendant, pleaded in his defence that the money was in fact received by Jennings on his own account as trustee of the trust and was paid by him into the banking account of the firm but without any connivance by or with him. Further, Burton in answer to an interrogatory affirmed that the money had been paid into the account of the firm. On the pleaded defence and the answers to interrogatories the court was moved for an order for payment into court. That order was made and after its making the defendant Burton gave notice of motion that the order as against him be discharged because he had subsequently examined all of the relevant business records of the firm and had discovered that the sum of £2,000 had never been paid into the firm. He had said that what in fact had happened was that the mortgage was settled in Burton's room at the firm by payment of the cash sum of £2,000 which was laid on the table but taken up by Jennings and not by the firm. Jennings denied this in an affidavit and said that Burton had taken the money and retained it. The fact of the money having been paid on the mortgage was verified upon affidavit by the transferee of the mortgage. It was in this situation then that Stirling J at first instance and later the Court of Appeal dealt with Burton's application for leave to withdraw the admissions in his defence and answers to interrogatories. Each of Stirling J and the Court of Appeal held that there having been sufficient evidence of mistake the defendant was permitted to withdraw his admissions, amend his defence and his answer to interrogatories.

13 Clarke v Yorke is somewhat more obscure. In an action for damages in the Chancery Division of the Supreme Court of England the plaintiff claimed that by reason of fraudulent misrepresentations he had been induced to enter into a contract for the purchase of land in respect of which it had been falsely represented that the land was fully drained when it wasn't. When during the course of argument the court held that an action for fraudulent misrepresentation, being an action founded upon a tort, is not a continuing cause of action and no further damages could be awarded, the plaintiff applied to amend his claim to re-cast his action but was refused, Pearson J saying:

"Until corrected by the Court of Appeal I shall always hold that leave to amend should be given when there is a slip, but I see no reason for permitting it in this case and at this stage of the proceedings."

14 But as a reading of these old cases will demonstrate, there was no discussion of the principles upon which the decisions rested.

15 More guidance can be obtained from Lowther v Heaver (1889) 41 Ch D 248. Whilst the facts of this case are somewhat complex essentially there was a building contract whereby a builder was to build some houses on land owned by the defendant Heaver. When the roofing on the houses was complete Heaver was to grant to the builder a lease of each house. The builder assigned the benefit of the lease to the plaintiff, Lowther and shortly after, the builder died. The plaintiff, Lowther brought an action to compel the defendant Heaver to grant leases and in his statement of claim alleged that the houses were roofed in by March 1887. The defendant Heaver did not deny this in his defence. During the trial before Kekewich J the evidence showed that the main buildings of the houses were completely roofed in before June 1887 but that the flat wooden roofs of some annexes had not been covered with zinc up to the time of trial. At this point Heaver then applied for leave to amend his defence so that he could deny that the buildings had been roofed in by March 1887. Kekewich J refused leave and held that Heaver was bound by his defence and by his admission on the pleadings that the houses had been roofed in by March 1887. On an appeal from this and other findings Cotton LJ dealing with the leave to amend point said:

"The plaintiff by his statement of claim alleged that the houses had been roofed in by March 1887, and Mr Heaver by his statement of defence did not traverse this, so that on the pleadings he must be taken to have admitted it. Then at the trial he asked leave to amend in order to raise this point, that putting on the planking without putting on the zinc to protect it from the weather was not roofing within the terms of the agreement. I think that Mr Justice Kekewich was right in refusing to give him any such leave. Mr Heaver was, at least from June, 1887, residing constantly in the neighbourhood of this property, was frequently seeing it, and knew what the state of it was, and yet when he comes to defend and account for his refusing to grant leases he does not allege that these buildings were not roofed in as required by the agreement. If in fact they were not roofed in at the time when he took possession, then the plaintiff would have no right to have leases granted. Mr Heaver took possession on 1st September 1887, and when leases were asked for he did not say, 'You are not entitled to leases because these buildings are not roofed in as the agreement required.' In my opinion, as he has taken that course, and has not referred to want of roofing in in paragraph 10 of his defence, we ought not to allow him to amend his pleadings in order to raise that question. He must have known the facts, and it must be considered that he determined not to raise as against the plaintiff the contention that the omission of the zinc prevented what had been done from being a roofing in under the terms of the agreement."

16 Whilst not expressly stated in any of the judgments in this case, it seems that the principle which can be extracted from the judgment of the Court of Appeal is that where a party, in full knowledge of a state of affairs elects to craft his defence to a claim in a certain way, then there comes a time when no matter what the point, he will not be given permission to amend his defence to withdraw an admission. This seems to explain why in subsequent authorities, a defendant seeking leave to amend a defence was required to go on affidavit to explain the circumstances in which an admission was made, it being presumed that an admission would only be made by a defendant fully appraised of all relevant facts. Hence, if it could be shown by a defendant that he had misapprehended a fact or alternatively new information had come to light which changed his apprehension of a fact, then that may give rise to leave being granted to amend.

17 Again, whilst the principles behind the decision were not explained, the Court of Appeal confirmed its attitude to the late withdrawal of admissions on pleadings in Davey v Harrow Corporation [1958] 1 QB 60. In this case the plaintiff claimed damages for nuisance caused by the penetration of roots from trees which he pleaded were growing on the adjoining land which was the property of the defendants. As Lord Goddard CJ said at 68:

"The defendants, in the course of correspondence which had continued for a considerable time before action, had always contended that the trees in question were their property, and in the defence originally delivered they made this admission; but some two years later they obtained leave to amend and alleged that the trees were at all times material on the land belonging to the plaintiff and his predecessors in title. After judgment it was found that material letters and memoranda had not been disclosed by the defendants. Accordingly, application was made to the Court of Appeal, who directed further discovery and gave the plaintiff leave to call further evidence. Having seen these documents and heard the further evidence, this Court has no doubt whatever that the trees were at the material time growing on the defendants' land.

...

It is regrettable that the defendants attempted to resile from the attitude which for years they had taken up with respect to ownership, and we regret that they were given leave to amend after their admission had stood on the record for so long. It was this question of fact more than anything else which accounts for the length of time the case took in the court below and in this Court, and led to the necessity of applying for leave to call further evidence."

18 In Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18 at 20 McPherson J said:

"... it would be necessary for the second defendant first to obtain leave to amend by withdrawing the admission in its defence to which I have referred. On appeal, both the plaintiff and the first defendant opposed the granting of such leave to amend. The discretion to allow amendments is wide; but one would not expect it to be readily exercised in the case of an admission in the pleadings upon which others, who objected to it, might be presumed to have acted, particularly where, as here, the relevant limitation period has expired. There are surprisingly few reported decisions concerning leave to amend involving withdrawal of admissions in pleadings; but such as there are do not conduce to the belief that it will be granted where prejudice is likely to result to those who oppose it."

19 Accordingly, it seems to me that a review of the authorities compels one to the opinion that where an admission of a relevant fact has stood on the pleadings for a considerable time, a court will not permit that admission to be withdrawn unless it can be shown that it was made without a full appreciation of the facts and circumstances upon which it was based. The underlying philosophy appears to be that a party to litigation should not be permitted to change the course of the litigation at a late stage because to do so would increase costs and delay and put the other side to investigation well after the trail had gone cold. As the admission in question here was made with full knowledge of all the surrounding circumstances, it may not be withdrawn simply because the defendant's counsel has persuaded his client that the admission, made against his advice, was wrongly made.

20 What then of the proposed counterclaim which pleads contributory negligence? In my opinion the same principles apply. It is too late to bring in a counterclaim. When the particulars are examined, one can see that they allege facts which will require investigation by the plaintiff long after the trail has gone cold, when she has been led to believe that her claim is confined to an assessment of her damages, a belief induced by the defendant's admission of liability and failure to plead contributory negligence in a timely fashion.

21 The appeal will be allowed and the orders of the learned Deputy Registrar set aside.