Freitas v Bluescope Steel (AIS) Pty Ltd [2012] NSWSC 1194

Freitas v Bluescope Steel (AIS) Pty Ltd [2012] NSWSC 1194

Leave to withdraw the admission and file an amended defence should be granted because a real factual dispute exists as to the existence and operation of the relevant contract, and allowing withdrawal would allow the case to be decided on its factual merits rather than on the basis of pleadings. The amendment is not clearly futile or an abuse of process, and no substantial prejudice would result to the opposing party.

Parties
Plaintiff: John Freitas; First Defendant: Bluescope Steel AIS Pty Ltd; Second Defendant / Fourth Cross Claimant: Transfield Services (Australia) Pty Ltd; Third Defendant / Fourth Cross Defendant: K&R Fabrications (W'Gong) Pty Ltd; Cross Defendant: Mr Stiles; Cross Defendant: G Polczynski
Jurisdiction
Australia
Judgment Date
21 September 2012
Procedural Posture
Application (notice of Motion) Within Personal Injury Proceedings / Interlocutory (motion for Leave to Withdraw Admission and Amend Defence)
Outcome
Leave granted for withdrawal of admission and to amend defence; related procedural orders as to reply and evidence; indemnity costs ordered against the third defendant.
Legal Topics
Leave to Amend Pleadings, Futility or Abuse of Process, Discretion to Allow Amendment
Civil Procedure Leave to Amend Pleadings Futility or Abuse of Process Discretion to Allow Amendment

Case Brief

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Parties

John Freitas

Plaintiff

Bluescope Steel AIS Pty Ltd

First Defendant

Transfield Services (Australia) Pty Ltd

Second Defendant / Fourth Cross Claimant

K&R Fabrications (W'Gong) Pty Ltd

Third Defendant / Fourth Cross Defendant

Mr Stiles

Cross Defendant

G Polczynski

Cross Defendant

Procedural Posture

Application (notice of Motion) Within Personal Injury Proceedings / Interlocutory (motion for Leave to Withdraw Admission and Amend Defence)

Legal Issues

  1. 1 Should the third defendant (K&R) have leave to withdraw an admission in its defence?
  2. 2 Should the third defendant be permitted to file and serve an amended defence?
  3. 3 Would such amendment be futile or an abuse of process?

Ratio Decidendi

Leave to withdraw the admission and file an amended defence should be granted because a real factual dispute exists as to the existence and operation of the relevant contract, and allowing withdrawal would allow the case to be decided on its factual merits rather than on the basis of pleadings. The amendment is not clearly futile or an abuse of process, and no substantial prejudice would result to the opposing party.

Court Disposition

Leave granted for withdrawal of admission and to amend defence; related procedural orders as to reply and evidence; indemnity costs ordered against the third defendant.

Orders

  • The third defendant has leave to withdraw the admission contained in its defence;
  • The third defendant has leave to file and serve an amended defence on or before 4pm 28 September 2012;