Philip Karadaghian v Big Beat

Judgment 1HIS HONOUR: The first defendant in these proceedings, Big Beat (Australia) Pty Ltd (Big Beat), seeks leave of the Court to withdraw certain admissions made in pleadings. It is necessary to describe the substantive proceedings and the facts giving rise to the original admission. 2Philip Karadaghian sues Big Beat, largely in negligence, arising from an assault on 20 October 2007. The assault is alleged to have occurred in circumstances where Big Beat, being the owner and occupier of premises known as Home Nightclub, engaged security services, an employee or agent or subcontractor of which assaulted the plaintiff. 3The plaintiff commenced proceedings by the filing of a Statement of Claim on or about 22 October 2010 naming Big Beat as the first defendant and Ambiant Pty Ltd (Ambiant) as the second defendant. The proceedings were initially filed in the District Court of New South Wales and transferred to this Court in August 2011. 4On 2 May 2011, Big Beat filed a defence admitting that at all material times, and in particular relevant to the incident on 20 October 2007, it made arrangements for the provision of security services at Home Nightclub. The first defendant, Big Beat, also admitted that they contracted with Ambiant for Ambiant to provide security services and security personnel to the Home Nightclub. 5On 31 May 2011, Ambiant filed a defence admitting that they were contracted to provide security services on the relevant date. Ambiant was not insured or licensed under the Security Industry Act 1997 as at 20 October 2007. 6It is appropriate to recite that the original Statement of Claim was filed approximately two years after the plaintiff's solicitor, Gregory Masselos of Steve Masselos & Co, had written to Big Beat seeking particulars of the identities of the occupier of Home Nightclub and the entity responsible for the provision of security services on the relevant date. In a letter dated 25 November 2008, Big Beat, over the signature of its Financial Controller, Edward Waterson, responded to the earlier letter from the plaintiff's solicitor to the effect that the relevant security provider was Ambiant. It was on the basis of this representation that Ambiant was named as the second defendant and the pleadings were framed asserting, as fact, that which had been admitted in the letter of 25 November 2008. 7In or about June 2012, Big Beat formed the view that the admission should not have been made and that the contract for security services was with Victor Moraitis and/or another company, Southland Security and Protection Pty Ltd (now in liquidation) (Southland). On 27 September 2012, Big Beat filed and served an amended notice of motion seeking leave to withdraw the admission in paragraph 5 of its Defence of 2 May 2011, pursuant to r 12.6 of the Uniform Civil Procedure Rules 2005. That motion also sought leave to amend the Defence regarding the security entity contracted on the relevant date. 8Apart from the procedural issues mentioned above, evidence has been adduced relating to the manner in which the admission was originally made and what now purports to be a different scenario to that to which Big Beat and Ambiant admitted. It is necessary to deal with that evidence. 9Before doing so, it is necessary to stress that which may be obvious from the foregoing, namely, that the admission as to the identity of the security contractor was first made by letter dated 25 November 2008, some two years prior to the filing of the Statement of Claim. Big Beat then reiterated the admission when it filed its Defence on 2 May 2011. Ambiant also admitted that fact. 10It is only Big Beat that seeks to withdraw the admission. Ambiant, which has admitted the same facts, does not seek to withdraw its admission. Ambiant, it is reiterated, is said to be the contracting party. 11There are two essential circumstances which require acknowledgment, before detailing some of the evidence that had been adduced. First, Mr Simon Page was a Director of Big Beat and was the Principal Director of Big Beat. It was Mr Page who, it seems, was the person responsible for arranging contracts in relation to security at Home Nightclub. Mr Page suffered a head injury on 2 May 2010 which has arguably rendered him incompetent to give evidence. Nevertheless, Mr Page was the Principal Director (and competent) on 25 November 2008 when Big Beat first admitted the identity of the security provider at Home Nightclub. 12Mr Waterhouse, by affidavit sworn 20 November 2012, attests to the process he recalls following in order to answer the letter from Steve Masselos & Co dated 5 November 2008. It is noteworthy that Mr Waterhouse does not attest to the proposition that he did not discuss the matter with Mr Page. Nor does he deny that he received instructions from Mr Page as to the answer to be given. 13The second factual aspect to which reference must be made, before dealing with the evidence before the Court, is that Victor Moraitis was the director of a number of companies including Ambiant (at least at some stage), Southland and PGP Security. Mr Moraitis has dealt with Mr Page in the period since his injury and disagrees with the assessment of Mr Page's wife (and the neurologist, occupational therapist and speech pathologist reports currently before the Court) as to his ability to communicate and/or give evidence, even if only by affidavit. 14I have no doubt that Mr Waterson had authority to make the admission in the letter of 25 November 2008. There can be no doubt that solicitors acting on behalf of Big Beat had the authority to make the admission in the Defence filed in the proceedings.