Their Honours went on to consider the relationship of those principles to the decision of the High Court in The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146.
9 In reality, in my view, there is no conflict between the statements of principle in the withdrawal of admissions cases that I have cited and in J L Holdings, since the governing consideration in each instance is the requirement of justice or of ensuring there is a fair trial. There had been an earlier formulation of the principles as to the withdrawal of admissions by the Full Court of the Federal Court of Australia in Celestino v Celestino FCAFC unreported 16 August 1990. But this statement of principle predated J L Holdings and has been held unsound by Gillard J in McKenzie v Commonwealth [2001] VSC 361 at [46] and by the Full Court of Western Australia in Hutton v Meston [2004] WASCA 178 at [18]. This disavowal was in part because of a conflict between the earlier case and J L Holdings. In any event, I take Santow J's statement in Drabsch, approved by the Full Court of the Federal Court in Jeans, as representing a correct statement of the applicable principles.
10 Among the propositions that flow from the statements of Santow J and of the Federal Court, are that withdrawals will not be allowed as a matter of course; and that, as the applicant for withdrawal is seeking an indulgence, it is for that applicant to establish that there is a case for withdrawal. Mr T G R Parker, of counsel for the defendants, put it to me that the withdrawal would be allowed unless it was futile and that it was for the opponent to establish the futility, which the plaintiffs had not done. On the contrary, it is my view that, if the matter is to turn on onus, the onus is on the applicant to establish that there is utility in the withdrawal. Thus, in Australia & New Zealand Banking Group Ltd v Bechely-Crundall NSWSC unreported 11 June 1996, Sperling J said that relief would be granted by way of leave to withdraw an admission "provided that the matter is seriously in question in the proceedings". That is, the utility of the withdrawal of the admission must be established, not its futility.
11 Were it not for one factor, which I shall advert to below, I am firmly of the view that the withdrawal should not be allowed. The defendants, who have been as frank as the plaintiffs in the presentation of their case on the application, clearly state that the admission was made on the advice of counsel after consideration of material factors and at least in part to gain a tactical advantage in the presentation of their cross claim. They do not establish that refusal of the application will lead to the conduct of the case on a factual basis that is different from reality. They simply say that new counsel now deems it advantageous to the defendants to deny par 20 of the statement of claim. Furthermore, I find that the plaintiffs would be prejudiced by withdrawal of the admission at this stage and that that prejudice could not be cured simply by a costs order. As things stand, they would wish to have Mr Yu's evidence, if the issue were contested. Their preparation for a trial a month off would be disrupted by the effort to get that evidence and it is far from certain whether it could be obtained in time in acceptable form. His evidence appears to me to be very material on the issue sought to be raised. Save for what follows, in my view, refusal of the application to withdraw would be in accordance with the requirements of justice.
12 The only countervailing consideration is that the plaintiffs seek to rely on new causes of action which were not in play when the admission was made. It is clear that par 20 is material to those new causes of action. In Demasi v Linfox Transport (Aust) Pty Ltd NSWSC unreported 14 June 1995, McLelland CJ in Eq would not have permitted admissions made in a defence to be withdrawn except that the statement of claim was amended "in a way which may arguably cause the admitted fact to have an added or different significance in relation to a claim first brought forward by the amendment to the statement of claim." There the allegation sought to be put in issue (whether a lease expired on 29 or 30 September) had a totally different significance in respect of the added, as opposed to the existing, claim. Here the significance of the admitted fact is of the same nature in relation to the proposed new claims as to the old, but that does not alter the fact that the plaintiffs seek to rely on new claims that were not propounded at the time the admission was made. I do not propose to hold an inquiry into whether the defendants' decision would have been the same had the new claims already been in play at that time. Like McLelland CJ in Eq in Demasi, I do not think that defendants should be held to their admission in respect of claims not under consideration at the time it was made. If they are not held to the admission in relation to some claims, they should not be held to it at all.
13 I propose to follow the course followed by his Honour in Demasi, namely, to put the plaintiffs to an election as to whether or not they wish to persist in their amendment application, so far as it relates to the new causes of action. If they do, since no other prejudice is suggested to flow from that amendment, I shall allow that amendment, but also allow the withdrawal of the admission. If they do not persist with that amendment, I intend to refuse the defendants' application to withdraw the admission.
14 In fact, this election was debated during submissions on the motion and the plaintiffs indicated to the Court that, if I put them to that election, they would retract their application to amend by adding the additional representations.
15 The result is that the plaintiffs will be granted leave to file a further amended statement of claim in the form propounded omitting the amended paragraphs between 53A and 56A and also omitting prayer 11A. The defendants' application for leave to withdraw the admission will be refused.
16 This decision will result in some, but not all, of the originally sought amendments being allowed, both to the statement of claim and to the defence. The parties should bring forward for formal leave to be granted to their filing in court further versions of the amended pleadings which are in accordance with this ruling.