Walsh v KC & WL Brain Pty Ltd

Judgment

1. HIS HONOUR: Currently before me are two applications made by the Defendant. The first application is for leave to withdraw certain admissions that were made in evidence given on 4 March 2022. At that time, the Plaintiff, Mr Alan David Walsh, was being cross-examined by Mr O'Connor for the Defendant. He was being cross-examined about a number of items in a Scott Schedule that relates to various quantum meruit claims.
2. The relevant admissions concern items 6, 8, 9, and 10, in the Scott Schedule. Item 6 is a claim for two passes of Roundup/Weedmaster and Agritone per hectare, a total of $3,540. Item 8 is an application of another chemical, Majister, at the rate of 500 mls per hectare at a total cost of $5,520. Item 9 is the application of another chemical, Gramoxone, at 2 litres per hectare, being a total cost of $1,420.50. The final item is item 10, again, the application of a chemical known as Stopm/Rifle at 3.5 litres per hectare at a total cost of $5,190.50.
3. Concerning item 6, at page 53 line 11, the learned Counsel for the Defendant is recorded as saying this: "O'CONNOR: Just in relation to the first item, your Honour, that is agreed. That's the two passes of Roundup/Weedmaster and Agritone? WITNESS: Yes. O'CONNOR: Q. I'm just informing his Honour that my clients agree with that claim."
4. As to item 8, Mr O'Connor stated that that was agreed at T53.48. As to item 9, Mr O'Connor said that item was agreed at T51.01. As to Item 10, Mr O'Connor advised me that item was also agreed at T54.06. It is clear from the actual words that he initially used that he was making those admissions on instructions from his clients. When he referred to his clients in the plural, he was referring to the principals of the Defendant, Mr Ken Brain and his wife, Mrs Wendy Brain.
5. The principles relating to the withdrawal of admissions can be conveniently found in the judgment of Campbell J in Candy v GIO General Limited [2013] NSWSC 810. Commencing at [53] his Honour said this: "53 In Drabsch Santow J said (pp. 7 - 8): I set these principles out as follows: 1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted; Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 per Rogers CJ Comm D, followed in IOL Petroleum Ltd v O'Neill per Young J (Young J, 17 November 1995, unreported) and Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (full Supreme Court of Victoria, 8 April 1988, unreported), and in that respect not following H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703. 2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded; IOL Petroleum Ltd v O'Neill (supra), in the context of withdrawing a concession made before the Registrar. 3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admissions should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn; Coopers Brewery Ltd v Panfida Foods Ltd (supra) at 745 and 748. Thus a court will not lend its approval to the withdrawal of admissions where, by analogy with the making of amendments, this is actuated by purely tactical reasons; compare Devae Prufcoat Pty Ltd v Altex Industrial Paints Ltd (Cole J, 15 March 1989, unreported). 4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission; H Clark (Doncaster) Ltd v Wilkinson (supra), in that respect not doubted. 5. Following Cohen v Mc William and Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with cost orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party. 54 In Deangrove at [35] Sackville J said: Consistent with what was said by Santow J in Drabsch v Switzerland Insurance, a party who makes a clear and distinct admission on a factual question, which is accepted and acted upon by the opponent, should not be permitted freely to withdraw that admission. Whether or not it is appropriate to grant leave will depend upon the particular circumstances of the case and an assessment of the interests of justice. The relevant circumstances include the nature of the admission, how it came to be made (for example, whether it was made deliberately or inadvertently), when and why the party seeks to withdraw the admission and the impact of any withdrawal on the other parties to the litigation. 55 In Clark v. Wilkinson at 703 Lord Denning MR said: An admission made by counsel in the course of proceedings can be withdrawn, unless the circumstances are such as to give rise to an estoppel. If the other party has acted to his prejudice on the faith of it, it may not be allowed to be withdrawn (citations omitted). 56 And at 704 Salmon LJ said: No doubt a statement made by counsel, just like a statement made by the client, if acted on by the other side to their prejudice, cannot be withdrawn. This is because an estoppel would then arise. 57 As Santow J pointed out in Drabsch, other statements of their Lordships in Clark v. Wilkinson have been perceived to be too lenient in more modern Australian cases: eg. Coopers Brewery Limited v. Panfida Foods Limited (1992) 26 NSWLR 738; Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; Deangrove at [29] - [30]. However, it cannot be doubted that where the circumstances of the case engage the legal principles of estoppel by representation (for example) the party will be precluded from withdrawing the admission. 58 Albeit in dissent, in Cropper v. Smith at 710 Bowen LJ said: Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. 59 All of these statements of principle, of course, precede the enactment and commencement of the Civil Procedure Act and the discussion of the legal effect of similar efficiency provisions of the Court Procedure Rules 2006 (ACT) in Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27; 239 CLR 175. The principle enunciated by Bowen LJ in the passage I have quoted has survived the realignment of relevant considerations effected by ss.56 - 58 Civil Procedure Act. Later comments by his Lordship about the curative effect of costs orders have not (AON at 189[25] per French CJ; at 211[93] and 213[99] - 214[101]). 60 The statutory imperative, and the High Court's explanation of it in AON, may require an approach somewhat different from that explained by Santow J. In particular, his reference to case management considerations not being decisive obviously needs to be reviewed; clearly in some, perhaps many, cases such considerations will be decisive. AON provides a clear example. However, only the plaintiff, of all the parties opposing Zurich's application, argued case management considerations were of other than some, not decisive, relevance. GIO, the party entitled to the benefit of the admission, as it were, did not argue that such considerations were decisive in the present case. 61 Too much should not be read into Santow J's observations about admissions "contrary to the actual facts". An application for leave to withdraw will most often be made before the facts have actually been determined following a trial. Sometimes at an interlocutory stage, the true facts will appear with certainty. But usually, the best that can be said is that they are contestable. Consistently with the approach taken to other instances of interlocutory relief, it may be sufficient if it appears from the material presented in support of the application that there is a reasonable prospect that evidence will be lead at the trial which, if accepted, will support a finding which contradicts the admitted fact: Yu v Speirs [2001] NSWCA 373. Naturally, a consideration expressed this way could rarely be decisive."