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Evidence, admissions

Manpower PL v Harris [2011] NSWWCCPD 10. Roche DP.

94. Once it is accepted that the words “without admission of liability” are of no effect (Ashenden), the consent orders “necessarily involved” the admission by Manpower that Mr Harris was a “worker” employed by it, that he received an “injury” in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions follow from the face of the consent orders and the history of the matter.

Sutherland v Woods [2011] NSWSC 13. Hallen AsJ.

159 Relevant definitions in the Dictionary to the Evidence Act 1995 are as follows:

'admission' means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and(b) adverse to the person's interest in the outcome of the proceeding.

'previous representation' means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

'representation' includes:(a) an express or implied representation (whether oral or in writing) ..."

160 A defendant may admit facts pleaded in the statement of claim by an express plea or by a failure to traverse.

Where the defendant admits facts in either of those ways, they cease to be in issue in the proceedings and need not be proved at the trial.

A traverse may be made by denial, or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation (UCPR r 14.26).

161 An admission made under this Part in connection with any proceedings:

(a) may not be used in those proceedings except in favour of the party in whose favour it was made; and

(b) is taken to have been made for the purposes of those proceedings only.

162 As Campbell JA pointed out in The Nominal Defendant v Gabriel [2007] NSWCA 52; (2007) 71 NSWLR 150 at [110] - [111].

[110] As it is the pleadings that define the issues for trial, if an admission is made in a defence, there is no issue at the trial about the truth of the fact admitted, and therefore no evidence may be led, or submission made, for the purpose of controverting that admitted fact.

Similarly, an assumption that underlies the requirement for leave to withdraw a formal admission made in court proceedings by one of the means prescribed by the Rules, other than admission on the pleadings, is that, unless and until leave to withdraw that admission is given, the matter that is admitted cannot be controverted by other evidence in the case.

However, pursuant to UCP Rule 17.6, such an admission operates only in favour of the party in whose favour it was made, and is taken to have been made for the purpose of those particular proceedings only.

[111] It is only because admissions made by a formal step in proceedings, of the various types I have just mentioned, prevent there being any issue in the proceedings about the correctness of the matter admitted that any question arises about such admissions being "withdrawn".

Granting leave for such an admission to be withdrawn is, in effect, granting permission for an issue to be raised in litigation about the correctness of the matter that had been admitted."

163 Of course, what are said to be admissions, have not been made in the present proceedings, but in the 2007 proceedings.

Accordingly, the short answer to the question is that, even if they do constitute admissions, the admissions have not been made in the present proceedings and would be taken to have been made for the purposes of the 2007 proceedings only.

164 However, since some time was spent on this issue, I shall deal with it in a little more detail.

165 In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Mason CJ and Brennan J said:

"A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal ...(86)."

166 In my view, by his non-admission, Mr Sutherland put Dr Woods to proof of the contents of Para 10.15.6(a) of the Statement of Claim in the 2007 proceedings. That does not constitute an admission. In the pleadings, he put Dr Woods to proof on the matters in that Paragraph, as he was entitled to do. Accordingly, the evidence and validity of the WSF was a matter that remained in dispute between the parties.

Scott Cole v DIB Group &c [2008] NSWDC 201. Goldring DCJ.

"Ms Skelly, and Mr Byrd, her counterpart employed by DIB, produced a report on Mr Cole's accident, recommending that the pit and its cover be changed to prevent future accidents of the same type, and this was done, but not immediately. The changes appear in photographs taken later. They could, if necessary, constitute an admission that the pit cover was dangerous," his Honour said [6].

Satisfied the pit was a hidden trap, Goldring DCJ said: "Ms Skelly gave evidence, without objection, that Mr Byrd told her that he had fallen himself, when he put his weight on the corner of the pit cover. This is evidence that DIB had actual knowledge that the pit cover, as it was on 30 June 2005, was not reasonably safe. This constitutes a breach of the duty of the occupier to those who, like Mr Cole, were lawfully on its premises."

Turner & Townsend Pty Ltd v Berry [2012] FCA 111. Jagot J.

14. The parties are not in disagreement as to the relevant principles. All rely on the judgment of Sackville J in Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 at [28] to [35].

In particular, the parties rely on his Honour’s citation of the decision of Santow J in Drabsch v Swiss General Insurance Co Ltd (16 October 1996, unreported, Supreme Court of New South Wales) in which Santow J summarised the relevant principles. Most relevant for present circumstances are the principles contained in paragraphs 1 and 4, as identified by Santow J:

 


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...

2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines 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...

3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn...

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...

5. Following Cohen v McWilliam & 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 costs 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”.

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