MACONACHIE: It could but I do not think it will because we would say that the overwhelming probability is that it was all of the applications of Gil Gil and Rimanui, mainly Rimanui, which was causative of the damage. So it really does not matter whether it is joint or not. I am not going to come here and fight fights I do not have to fight. We put it on both bases, jointure is not an issue and if it is they are both in it and if we want to get really interested in the two causatives we will get down to the two hunters firing and hitting one victim and what do you draw from that. As I said earlier, there is the possibility of a difference in scientific opinion about what was the cause, how did it happen and the like."
26 Mr Donohoe of counsel for Rimanui and Mr Loukas of counsel for Gil Gil contended that Mr Maconachie's statement that he did not think withdrawal of the admissions would have any practical consequences, was significant and arguably determinative of the applications. Mr Maconachie for the plaintiff insisted that the passage above when read as a whole made it clear that from the plaintiff's point of view Rimanui and Gil Gil should not be permitted to lead evidence that was inconsistent with the admissions, particularly as they had been made at an early stage of the proceedings and had not been revisited since.
27 In my opinion the plaintiff's position at that time was clear. It would not consent to any application to withdraw the admissions. The statements by Mr Maconachie contain some references that are arguably capable of being understood in another way. However, on balance and quite persuasively, the burden of what was said was consistent with the position that the plaintiff now seeks to maintain. It is not without significance that the issue was raised by Mr Maconachie for the express and stated purpose, in his words, that there could not "be any doubt about where we stand on the issue of jointure".
Submissions by Rimanui and Gil Gil
28 Rimanui and Gil Gil contended that the admission did not go to a matter or question that was material to any issue in the case, such as liability (presumably in the sense of a breach of duty) or contributory negligence. In Maile, for example, the moving party was seeking to withdraw an admission of liability, and was permitted to do so in the circumstances of that case. It was submitted, in plain contrast to the enthusiasm with which the present applications are being pursued, that the admission itself is comparatively insignificant. It was said not to go to any substantive issue in the proceedings. Rimanui and Gil Gil emphasised that there were clearly two separate contracts and that it was a fiction to permit the admissions to stand. Moreover, they stressed that the admissions did not change the plaintiff's case in any appreciable manner. This was because, according to this submission, the plaintiff determined upon a particular course for the conduct and prosecution of its case some three years prior to the commencement of the proceedings when it commissioned the services of Ms Woollams, Mr Somervaille and Mr Combellack. Their respective and particular investigations and enquiries were not predicated or dependent upon the assumed contractual relationship between Rimanui and Gil Gil.
29 Even though this is the first time that Rimanui and Gil Gil have sought leave to amend their defences in this way, notified no earlier than 9 August 2010 when the hearing resumed before me, they submitted that the proposed amendment would not cause any prejudice to the plaintiff or occasion any significant delays or waste of the Court's time or resources. They contended that the withdrawal of the admissions would allow the Court to determine the real questions raised in the proceedings. The withdrawal of the admissions and the consequent amendment of the defences would also "bring the pleadings into line with the evidence adduced by the plaintiff and that which is yet to be adduced by the defendants [sic]".
30 Rimanui and Gil Gil submitted that nothing that was said by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 was authority for the proposition that modern case management rules created a default position of not permitting any amendments, which the party seeking to amend must first overcome. That case demonstrated that the question of whether amendments are permitted is a balancing exercise, which includes appropriate weight being given to the case management rules. That is said to be clear from what was said at [102] in these terms:
"[102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment."
31 Aon did not deal with the withdrawal of an admission. Rimanui and Gil Gil submitted that its authority and utility in the present case, other than by analogy, was therefore reduced.
32 Rimanui and Gil Gil also submitted that the question of the contractual interrelationship of the various alleged tortfeasors was of marginal, if any, significance or relevance to the question of whether or not they were liable as such. They contended that even if only theoretically it had some legal effect of importance on the plaintiff's case in negligence, one might have expected the existence of some detailed case law that had considered the issue. None is referred to by the plaintiff.
33 Rimanui and Gil Gil submitted that the plaintiff would not be prejudiced if the admissions were withdrawn, saying that the "exact arguable prejudice from a legal standpoint … by reason of the contractual relationship between [them] remains only one of conjecture". Moreover, any reading of the totality of the pleadings, including the cross claims, would leave no one surprised or able to allege prejudice caused by uncertainty as to what were the precise contractual relationships or arrangements. Rimanui and Gil Gil submitted that it was quite clear on the face of the pleadings that what was being ventilated was the existence of separate contracts between Gwydir and Rimanui and Gil Gil respectively.
The plaintiff's submissions
34 The plaintiff's submissions were to a considerably different effect.
35 The application to withdraw the admissions was made on the 15th day of a complicated hearing. The first day of the hearing was almost 13 months before that. On that occasion the plaintiff made its position clear in unambiguous terms. On 27 July 2009 when the plaintiff did so, per medium of Mr Maconachie's words quoted earlier, Rimanui's defence and Gil Gil's defence had each relevantly been in the form they are now in for approximately five and a half years. With joint engagement of Gwydir by Rimanui and Gil Gil not in issue, Gil Gil gave discovery on 22 July 2004 and Rimanui did so on 3 August 2004.
36 Rimanui filed its defence to the amended statement of claim on 4 December 2006. Mr Grellman verified it on its behalf before its solicitor Mr Moylan. The plaintiff advances the inference that Mr Moylan must be taken to have informed Mr Grellman of the significance of his solemn deposition before he made it. Mr Grellman gave evidence on 23 August 2010 but he did not take, or was not given, the opportunity to explain the circumstances in which he came to swear an affidavit verifying the defence in its current form.
37 Mr Colley verified Gil Gil's defence to the amended statement of claim on 16 November 2006.
38 The plaintiff's case is all but closed. The evidence it deployed in proof of its case was led in circumstances in which it was not an issue, and could not be addressed by evidence, that Rimanui and Gil Gil jointly engaged Gwydir. The third defendant, the insurer of Gwydir, made the same admission. The only three parties capable of knowing the true position took a uniform approach to the issue.
39 The fifth proposition identified by Santow J in Drabsch should be qualified. First, s 56 to s 60 inclusive of the Civil Procedure Act 2005 have altered the common law so that issues of case management now have greater force and importance: see Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28] - [29]. Secondly, Aon reasserts the importance of case management and court efficiency considerations. Since the decision in Aon, the matters raised in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 regain their significance.
40 Furthermore, Aon discussed the importance of an explanation being given for delay in a party seeking to amend: see [106] to [109]. If no explanation is provided, the Court is not entitled to speculate that there is a satisfactory explanation and should infer that one does not exist.
41 The plaintiff contended that there could be no suggestion of confusion, misunderstanding or oversight as a cause for the admission having been made in the first place or no application to withdraw it having been made earlier in the second place. The way in which paragraphs 10 and 11 of the amended statement of claim and their predecessors were dealt with in the subsequent pleadings filed by all defendants makes it clear that they were well understood and deliberately answered with knowledge of the true facts.
42 The plaintiff also submitted that on or after 27 July 2009 Rimanui and Gil Gil consciously, purposefully and deliberately maintained their defences in their original form, containing the admissions, even after their attention had been drawn on that day to the fact that the plaintiff placed reliance upon them. They had been in that form for many years. The plaintiff submitted that those circumstances bespeak a perception that Rimanui and Gil Gil pursued that course for some forensic advantage, and that such perception tells against a grant of leave to withdraw the admissions. The plaintiff submitted that there has been no explanation, or certainly no adequate explanation, of why the admissions were made otherwise than intentionally, deliberately and accurately.
43 Mr Scott Kennedy of Curwoods signed the 4 December 2006 defence. That firm was at that time the solicitors on the record for Rimanui. Mr Kennedy is a partner of that firm and easily contactable. No evidence was called from Mr Kennedy to explain why the defence was in that form and no explanation for the failure or omission to call him has been provided. The plaintiff asserts that it is entitled to the benefit of an inference that nothing Mr Kennedy could have said would have assisted Rimanui in the present application.
44 The plaintiff submitted that the only conclusion that is available in the circumstances is that at the time the defences were verified and filed they were true and accurate. Indeed, the solicitors for Gil Gil corresponded on the very topic of an application to withdraw the admissions with the plaintiff's solicitors on 30 September 2009, enclosing a proposed amended defence, denying paragraph 10, and yet nothing came of it. The last word in that chain of correspondence was a letter dated 22 October 2009 from Maria Crocker for the plaintiff to Mr Wilson for Gil Gil. Part of what Ms Crocker said is as follows:
"A matter which is of central importance to your proposal to withdraw the admission is the consequences it will have for the proceedings. As a result of the admission by both the first and second defendants, the litigation has been conducted on the basis that it is unnecessary for a distinction to be drawn between the herbicide which was targeted at the first defendant's crops and the herbicide that was targeted at the second defendant's crops. The evidence has been prepared by all parties based on this premise and your client and the first defendant have even engaged the same expert witnesses.