Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

New South Wales Land and Housing Corporation and Anor v Frances Joy Reilly and Anor [2012] NSWCA 286

Hearing dates:

13 August 2012

Decision date:

12 September 2012

Before:

Beazley JA

Decision:

Notice of motion dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - Pleadings - Application for leave to further amend notice of appeal - Prejudice - Party should be bound by the case run at trial - Proposed amendments address matters not in issue at trial - Whether new point can be raised on appeal - Discretion of the court - Forensic considerations - Cost implications - Uniform Civil Procedure Rules 2005, rr 19.1, 51.1 - Application dismissed.

PRACTICE AND PROCEDURE - Pleadings - Leave required to withdraw express admissions in pleadings - Leave not sought in application to further amend notice of appeal - Uniform Civil Procedure Rules 2005, r 12.6.

Legislation Cited:

Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Dust Diseases Tribunal Regulation 2007
Uniform Civil Procedure Rules 2005

Cases Cited:

Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Drabsch v Switzerland General Insurance Co Ltd and Ors (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported)
Maile v Rafiq [2005] NSWCA 410
University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481
Wyer v Hunt [2005] ACTSC 15

Category:

Interlocutory applications

Parties:

New South Wales Land and Housing Corporation (First Appellant)
State of New South Wales (Second Appellant)
Frances Joy Reilly (as legal personal representative of the estate of the late Terry James Reilly (First Respondent)
Malabar Electric Pty Limited (Second Respondent)

Representation:

Counsel:
D Higgs SC; J Burn (Appellants)
J McIntyre SC (First Respondent)
Solicitors:
Crown Solicitor (Appellants)
Turner Freeman (First Respondent)
Moray & Agnew (Second Respondent)

File Number(s):

CA 2012/48209

Publication restriction:

Decision under appeal

Citation:

Reilly v Malabar Electric Pty Limited & Ors [2011] NSWDDT 9

Before:

Kearns J

File Number(s):

DDT 383/2009

Judgment

1HER HONOUR: The appellants in this matter have appealed from the verdicts and judgments in a total sum of approximately $250,000 ordered against them by Kearns J in the Dust Diseases Tribunal on 10 November 2011. By notice of motion filed on 17 July 2012, the appellants seek leave of the Court to file a further amended notice of appeal. Leave is required pursuant the Uniform Civil Procedure Rules 2005 (UCPR), Pt 19, r 19.1 and Pt 51, r 51.1(3). The application is opposed by the first respondent, the estate of the late Terry James Reilly (Mr Reilly's estate). The second respondent (Malabar) has filed a submitting appearance.

2It is necessary for the proper determination of the notice of motion to understand the history of the matter in the Dust Diseases Tribunal and the statutory scheme that operates in the Tribunal for the resolution and determination of claims. The appellants have provided a helpful written summary and chronology to assist in that task. The factual matters set out in those documents are not the subject of challenge by the respondents. Accordingly, the background facts which follow are derived by reference to that material.

3Terry James Reilly claimed that he had contracted asbestosis as a result of exposure to asbestos during the course of his employment with Malabar between 1960 and 1980. The employment with Malabar was mainly carried out at Housing Commission sites under the control of the first appellant or for the Department of Public Works under the control of the second appellant. Mr Reilly further claimed that he had been exposed to asbestos in 1987 during the course of his employment with John Goss Projects Pty Limited (Goss).

4On 23 December 2009 Mr Reilly commenced proceedings in the Dust Diseases Tribunal alleging that he had contracted asbestosis due to the negligence and breach of statutory duty of the appellants and Goss. Malabar was not initially joined as a party, as it had been deregistered as a company in January 1993.

5Mr Reilly died on 27 January 2010 and the proceedings were continued by Mr Reilly's estate.

6On 15 March 2010, Malabar was reinstated to the register by order of the Supreme Court: see Corporations Act 2001 (Cth), s 601AH(2). Upon re-registration, Malabar was wound up. Mr Reilly's estate was granted leave nunc pro tunc to commence the claim against it in the Dust Diseases Tribunal. An amended statement of claim in which Malabar was joined as a defendant was filed on 2 March 2010, claiming damages against it.

7The matter proceeded through the Tribunal's claims resolution processes. I will deal with those processes in more detail below. It is sufficient at this stage to note what happened to each of the claims.

8The appellants filed their reply to the particulars to the claim on 12 May 2010 in which they expressly admitted the diagnosis of asbestosis: cl 2.1A; the medical evidence as to Mr Reilly's diagnosis: cl 2.2A; that Mr Reilly's claimed condition of asbestosis was caused by exposure to asbestos: cl 2.3A; and the disabilities claimed: cl 2.4A. The appellants noted in their reply that they had not obtained any medical evidence at that time and reserved the right to provide evidence at a later time: cl 2.5A.

9Goss also filed its reply to the particulars to the claim on 9 July 2010.

10The Dust Diseases Tribunal Regulation 2007 (the Regulation), Pt 4, Div 7, cl 60 requires that where there is more than one defendant to a plaintiff's claim, the defendants must choose a single claims manager (SCM) to negotiate the resolution of the claim on behalf of all defendants. The appellants were appointed as the SCM on 19 July 2010.

11Defendants are also required by the Regulation to agree as to the apportionment of their respective contributions to the plaintiff's claim. Failing agreement, a Contributions Assessor is appointed to determine apportionment between the defendants. As there was no agreement between the defendants, on 19 July 2010 a Contributions Assessor apportioned responsibility between the defendants as follows: Malabar 60 per cent, the appellants 15 per cent each and Goss 10 per cent. It needs to be noted at this point that Malabar had not entered an appearance.

12The proceedings against Goss settled on 10 September 2010 on the basis of a judgment in favour of Goss with each party to pay its own costs.

13On 15 September 2010, a mediation between Mr Reilly's estate and the appellants was conducted without resolution of the claim.

14Malabar did not file an appearance in the matter until 31 May 2011. On 9 June 2011, Malabar filed its reply in which it denied that Mr Reilly had contracted asbestosis and, alternatively, if he had, his condition had not been caused by its negligence. The reply was filed well outside the 30 day period prescribed by the Regulation, cl 26(4).

15As the matter did not settle at the mediation, the proceedings were heard and determined by Kearns J. His Honour ordered verdicts and judgments against the appellants in the total sum to which I have referred.

16At the hearing, there was a contest between Mr Reilly's estate and Malabar as to whether the condition from which Mr Reilly suffered was asbestosis or another lung condition unassociated with exposure to asbestos. Opposing medical evidence was adduced on that issue. Judgment was delivered on 10 November 2011.

17The trial judge accepted the evidence adduced on behalf of Malabar and a verdict was entered for Malabar on the claim against it. The result, therefore, was that as between the parties in the proceeding determined by the trial judge, Mr Reilly's estate succeeded against the appellants but failed against Malabar. The fact that there are different verdicts against the defendants at first instance is at the heart of the complaint brought by the appellants on their appeal.

The scheme for the resolution of disputes in the Tribunal

18I have referred in the factual background to certain of the provisions relating to the manner in which claims are brought and prosecuted within the Tribunal. For the purposes of determining whether the appellants should be granted leave to amend their notice of appeal, further reference needs to be made to the mediation provisions. Those provisions are contained in the Regulation, Pt 4, which provides for a claims resolution process for asbestos-related conditions.

19Asbestos-related claims are subject to the resolution process prescribed in the Regulation, cls 12, 14 and 18. Clause 31 provides that a claim that is subject to the claims resolution process must be referred for mediation under Pt 4, Div 4. Clause 32 prescribes a timetable for referral for mediation. So far as is presently relevant, a claim is not to be referred to mediation until the Contributions Assessor has determined the apportionment of liability amongst the defendants: cl 32(5).

20Clause 36(1) provides that a defendant to a claim must be present or represented at a mediation session. Subclause (1) does not apply where a defendant is represented by an SCM: cl 36(2). A party to the mediation must be represented by a person with authority to make decisions in respect to the claim: cl 35(5).

21Clause 37 applies where the mediation has been unsuccessful. In particular, the mediator is to notify the Registrar that the claim has not been settled and is to require the parties to the mediation to agree on which issues are in dispute and the facts that are relevant to those issues: cl 37(1). The mediator is also required to certify what the parties have agreed are the issues in dispute and the facts relevant to those issues. The mediator's certification is to be filed with the Registrar and a copy is provided to the parties: cl 37(2).

22Clause 37(3) then provides:

"(3)When a claim that is the subject of a mediator's certificate under this clause is before the Tribunal for determination:

(a)the Tribunal must determine the claim on the basis that the issues agreed to be in dispute are the only issues in dispute between the parties and on the basis of the agreed facts, as certified by the mediator, and

(b)the parties are not permitted to raise any other issue as an issue in dispute between the parties."

23If the parties to the mediation do not agree on which issues are in dispute, each party is required to lodge with the Tribunal a statement as to the issues the party considers to be in dispute and the facts alleged to be relevant to those issues: cl 37(4).

24By letter dated 16 September 2010, the mediator reported to the Registrar of the Dust Diseases Tribunal that the mediation had been unsuccessful and that the only issue as between Mr Reilly's estate and the appellants was quantum. The letter noted that there had been no appearance for Malabar. The appellants accepted, as I understand their position, that this letter was the certificate required to be lodged by the mediator under cl 37(2).

25As has already been noted, Malabar did not appear in the proceedings until 31 May 2011 and did not file its reply until 9 June 2011, in which it challenged the diagnosis of asbestosis. Malabar also put causation in issue.

26Subject to one matter to which I will refer, the appellants proceeded at first instance on the basis that the only issue between them and Mr Reilly's estate was quantum. The appellants did not adduce any medical evidence, nor did it cross-examine either of the expert medical witnesses called by each of Mr Reilly's estate and the appellants.

27Mr Reilly's estate's expert witness was Professor Clarke, who had diagnosed asbestosis. Malabar's expert was Professor McKenzie, whose opinion was that Mr Reilly had suffered from the non-asbestos caused pleural disease of interstitial pulmonary fibrosis.

28Professor McKenzie had originally provided a report to Goss' then legal representatives, Moray & Agnew, who had served the report on Mr Reilly's estate at the time that Goss was an active party to the proceedings. There was no evidence as to whether the appellants were served with the report at that time. However, the rules of court required it be served: UCPR, Pt 31, r 31.28. Moray & Agnew were subsequently retained by Malabar. At the hearing, Malabar sought to rely on Professor McKenzie's report. Mr Reilly's estate objected to the report being tendered in Malabar's case on the basis of late service. On the second day of the hearing, the trial judge ruled that Malabar was entitled to rely on the report and to call Professor McKenzie to give evidence.

29Although the appellants conducted their case before the trial judge on the basis that liability was admitted and did not cross-examine either expert, they stated in their closing written submissions:

"Diagnosis is not disputed by [the appellants]. But if the Court accepts the opinion of Professor McKenzie, then there can be no judgment against any defendant."

30The appellants also contended in their closing written submissions that an appropriate apportionment between Malabar and the appellants was 75 per cent to Malabar and 25 per cent in combination to them. An alternate apportionment was also an advanced on the basis that Mr Reilly had worked on other sites which did not involve Malabar.

31In oral closing submissions, counsel for the appellants made the following submission:

"Your Honour, our submissions are manifestly much shorter than those of the other parties. First, because there is no dispute to the diagnosis that [Mr Reilly] presents. Secondly, that there is no challenge, at least in a general way, to the exposure that is claimed. We do, however, claim, with respect, that if your Honour were to accept the opinion of Professor McKenzie, then your Honour would give a verdict to [Malabar] but would not, we would submit, find in damages against [the appellants]. The situation, if the Court took a different view, if the Court took the view that it might discharge [Malabar] because of no proof of asbestosis, but still find against [the appellants] because they have admitted asbestosis, that would be, we would submit, elevating the pleadings to a more important role than that of the evidence or the findings of the Court.

Although it does look distinctly odd, if the matter fell out that way, we would submit that as a matter of logic that would be the outcome. [Mr Reilly's] case stands or falls on his proof of asbestosis. If your Honour finds against that, then [Mr Reilly] should not have damages because the damages can only arise if asbestosis is established. In saying we admit exposure, which we obviously do, we also submit that the disease being a divisible one, your Honour will differentiate between the three defendants in the findings. Now I am not urging upon the Court the manner in which that should be done."

32Senior counsel for Mr Reilly's estate responded to this submission by pointing out that the causes of action against each defendant were separate, so that:

"... whatever your Honour might find in relation to the case against [Malabar] the case against [the appellants] should be determined, in our submission, on the issues that are before your Honour."

33In his judgment, the trial judge accepted that there was no issue of diagnosis as between Mr Reilly's estate and the appellants. His Honour considered that the mediator's certificate had the effect of confining the contested issues in the case as between Mr Reilly's estate and the appellants to those specified in the certificate. His Honour noted that counsel for the appellants had accepted, in his submissions, that Mr Reilly had contracted asbestosis: judgment at [3]-[4].

34At [95], his Honour held that he was not satisfied that it had been established that Mr Reilly had asbestosis. The result was that claim against Malabar was dismissed. His Honour then considered the case as against the appellants. He noted that as asbestosis was a divisible condition, it meant each defendant was liable only to the extent of the damage caused by that defendant's tort. His Honour considered, at [96], that it was necessary "to determine the extent to which [the appellants] caused injury and damage to Mr Reilly". His Honour noted that various factors "could come into the determinations" but that the case:

"... was conducted on the basis that one factor only had to be considered. That factor was the period of time over which Mr Reilly did work for each defendant in comparison to his total period of exposure to asbestos which caused his condition."

35His Honour then turned his attention to apportionment as between each of the appellants and separately apportioned their liability on the basis that the first appellant should bear 1/6 of the damages he proposed to award and the second appellant 5/6 of such damages. There is no issue between the appellants as to this apportionment.

The notice of appeal

36In the original notice of appeal, the appellants appealed against that part of his Honour's decision whereby they were found liable for damages for having caused or contributed to the condition of asbestosis Mr Reilly alleged he had suffered. In their original notice of appeal, the appellants raised the following grounds:

"1.The primary judge erred in finding that:

(a)the issues in the case were confined to those specified in the certificate issued by the mediator;

(b)the appellants accepted that Mr Reilly had contracted asbestosis; and

(c)the issue of diagnosis only related to the case against [Malabar].

2.The primary judge erred in considering the appellants were bound by their admission of the diagnosis of asbestosis, in circumstances where by his own determination he found that such diagnosis was wrong.

3.The primary judge erred in making contradictory findings of fact in the same proceedings, namely that it had not been established that Mr Reilly had asbestosis but that nevertheless the appellants were liable on the basis that Mr Reilly contracted asbestosis.

4.The primary judge erred in reaching two inconsistent findings or verdicts with respect to the liability of the appellants and the second respondent arising from a common set of facts.

5.The primary judge erred in rejecting the submission of the appellants that if he were to find that the diagnosis of asbestosis had not been established, there could be no judgment against any defendant or any finding of damages against the appellants.

6.The primary judge erred in speculating that the appellants may have had their own reasons for admitting the diagnosis, including perhaps the possession of compelling evidence, without identifying the basis for such speculation or the nature of such evidence, especially given the appellants position as model litigants.

7.The primary judge should have found that:

(a)the appellants were not bound by their admission of diagnosis of asbestosis;

(b)the issue of diagnosis was alive with respect to the case against the appellants;

(c)as the first respondent had not established that Mr Reilly had asbestosis, the appellants could not be liable to the first respondent; and

(d)the appellants were entitled to verdicts in their favour on the same basis as that granted to the second respondent.

8.The primary judge's orders in relation to costs should be set aside."

37The appellants seek leave to amend their grounds of appeal so as to include the following:

"1.(a)... [the addition of] 'dated 16 September 2010'. [There is no objection to this amendment.]

(b)the issues against the Appellants were so confined because of the mediator's certificate and clause 37 of the Dust Diseases Tribunal Regulation 2007 ('the Regulations') ..."

The earlier grounds 1(b) and 1(c) were consequently renumbered 1(c) and 1(d).

An amended ground 2 as follows:

"2.The primary judge erred in failing to proceed on the basis that:

(a)the mediation of 15 September 2010 was not a mediation in accordance with the Regulations because all parties to the proceedings did not appear and participate in the mediation;

(b)the certificate issued by the mediator dated 16 September 2010 was not a certificate issued in accordance with the Regulations and was void and/or voidable;

(c)further and alternatively, that the claims resolution process under the Regulations did not come to an end until the Appellants, in written closing submissions, submitted that there should be a verdict and judgment in their favour in the event of [Malabar] succeeding (as occurred), those written submissions being a statement of issues which the Appellants considered were in dispute as provided for in clause 37(4) of the Regulations; and that by reason thereof the issues referred to in that statement (those written submissions) were issues for determination by the Tribunal ..."

New paragraphs 8 and 9, as follows:

"8.The primary judge erred in finding the mediator's certificate of Ms Wendy Strathdee dated 16 September 2010 with respect to the mediation of 15 September 2010 was binding on the Appellants so as to prevent them from denying causation and liability to the First Respondent;

9.The primary judge erred in finding that mediation had occurred of a type as contemplated by the Act and/or one that compelled a finding of causation and liability against the Appellants."

An amendment to paragraph 7 (but renumbered 10), as follows:

"10....

(b)the appellants were not bound by their agreement as certified by the mediator in her purported certificate under the Regulations of 16 September 2010 that the only issue between the First Respondent and them was quantum;

...

(f)the mediation of 15 September 2010 was not a mediation as contemplated by the Act and Regulations and/or a mediation as would prevent the Appellants from resisting judgment against them as occurred.

(g)the mediator's certificate of 16 September 2010 was void and/or voidable and of no effect;

(h)the mediation of 15 September 2010 was not a mediation as contemplated by the Act and/or one that compelled a finding of causation and liability against the Appellants."

38The appellants initially sought the following orders:

"1.Appeal allowed.

2.Verdicts and judgments in favour of the first respondent given on 10 November 2011 should be set aside, and in lieu thereof there should be verdicts and judgments for the appellants.

3.Orders of the primary judge made on 16 December 2011 should be set aside and in lieu thereof an order should be made that the plaintiff should pay the appellant's costs below as agreed or assessed.

4.First respondent to pay the appellant's costs of the appeal."

39If granted leave to further amend the notice of appeal, the appellants seek the following additional or alternative orders:

"3.In lieu thereof order there be verdicts and judgments for the appellants.

...

5.In lieu thereof an order that the plaintiff should pay the appellants' costs below as agreed or assessed.

6.Declaration that the mediator's certificate of 16 September 2010 is void and/or voidable and of no effect.

7.Grant leave to the Appellants to file amended Notices of Grounds of Defence putting in issue the issues of diagnosis and causation as raised by the Second Respondent at trial and in its Notice of Grounds of Defence.

8.Declaration that the compulsory resolution process under the regulations had not come to an end at the time of the hearing.

9.Declaration that the tribunal had no power and/or was prohibited from hearing the matter by reason of the provisions of the Regulations with respect to the compulsory resolution process not having come to an end.

10.In the alternative to orders sought in paragraphs 3 and 5 above, order the matter be remitted to the Tribunal for the compulsory resolution process to be finalised and rehearing."

The parties' submissions

40The appellants submitted that the following considerations were relevant to the favourable exercise of the Court's discretion.

41First Mr Reilly's estate did not assert that the proposed amended grounds of appeal were not arguable. Rather, its complaint was that the subject matter of the amended grounds was not put in issue in the court below and to raise those grounds now could cause it prejudice.

42Secondly, the certificate issued by the mediator was not a certificate in accordance with cl 37 and, accordingly, on its face was void or voidable. It followed that the certificate was "invalid" in one of those senses. Accordingly, the issues at trial could not be confined to the issues identified in the certificate.

43Alternatively, as all parties were not present at the mediation, the claims resolution process under the Regulations had not come to an end within the time specified in the rules. Clause 37(4) then operated with the effect that the appellants were not confined by the issues specified in the mediator's certificate.

44Mr Reilly's estate opposed the grant of leave to further amend the notice of appeal. Its principal opposition to the grant of leave to amend is that the issues sought to be raised in the new grounds of appeal were not raised at trial. That is conceded by the appellants. Senior counsel for the respondent submitted that it is a fundamental principle of appellate procedure that a party should be bound by the way it ran the case at trial. He further contended that there may be prejudice to Mr Reilly's estate if the appellants are permitted to conduct the appeal on a different basis from that conducted at trial. In particular, the estate contended that it may have qualified additional medical experts relating to the issue of diagnosis. Mr Reilly's estate was thereby prejudiced on the appeal should the amendments be allowed. It emphasised that the appellants had admitted the diagnosis of asbestosis on the pleadings. It also submitted that to the extent the proposed amendments raise questions of law, they show little, if any, merit.

Raising a new point on the appeal

45The principles relating to the raising of a new point on appeal are well established. In Coulton v Holcombe [1986] HCA 33; 162 CLR 1 the High Court reiterated what it had said in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 at 483:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

46In Coulton v Holcombe the plurality, at [9], referred to the position where a party may have adduced evidence to meet the point sought to be raised on the appeal:

"In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219." (emphasis added)

47I will return to the principal argument in opposition to the grant of leave to amend. It is convenient first to deal with the complaints raised in respect of the individual grounds of appeal the appellants now seek leave to advance.

Ground 1(b)

48The error to which the proposed amended para 1(b) is directed was the trial judge's statement, at [2], that Malabar was joined to the proceedings after the mediation between the estate and appellants on 15 September 2010. That was not correct. Malabar had been joined as a defendant at that time but had not entered an appearance or filed a defence. Mr Reilly's estate objects to this amendment on the basis that the trial judge had merely recorded the pre-trial mechanism whereby the issues to be tried had been identified.

49Ground 1(b) needs to be considered in the context of the existing ground 1. Ground 1(a) challenged his Honour's finding that the issues in the case were confined to those specified in the mediator's certificate dated 16 September 2010. As the certificate is clear in its terms, the challenge in ground 1(a) is unlikely to involve any factual issue. It is difficult to discern what remains in this ground. It may underpin the argument that there should not be inconsistent verdicts in the same proceedings. Alternatively, the challenge may be to the underlying legal question concerning the efficacy of the certificate in circumstances where all parties were not parties to the mediation. It is not appropriate to make any assessment on this application as to whether the latter possible argument will be permitted to be advanced.

50Ground 1(b) (renumbered 1(c) if the amendment is allowed) challenged his Honour's finding that the appellants had accepted that Mr Reilly had contracted asbestosis. Ground 1(c) (renumbered 1(d)) challenged his Honour's finding that the question of diagnosis was only in issue in the case against Malabar. These are difficult challenges in light of the formal admission made by the appellants in their pleading. Presumably, however, this ground will rely upon the reservation the appellants made in their final submission that if Malabar was successful, no order ought to be made against it. As I explain below, that reservation was made in the face of admissions in respect of which the appellants had not sought leave to withdraw.

51If the Court was to permit an amendment to ground 1 in terms of the proposed amended ground 1(b), the appellants would need leave to amend their reply to the claim and would also need leave to withdraw the express admissions made as to diagnosis and causation. The appellants have recognised the need to amend their reply: see proposed amended order 7. However, the proposed amended orders contain no acknowledgement of the need for leave to be granted to withdraw the admissions made in the pleadings. The need to withdraw the admissions is no mere formality in order to bring the pleadings into line with the argument. The requirement for leave to withdraw the admissions would involve the independent exercise of a discretion over and above the leave presently sought to further amend the amended notice of appeal: UCPR, Pt 12, r 12.6(2).

52The discretion to allow the withdrawal of an admission is conferred on the court in general terms. In Drabsch v Switzerland General Insurance Co Ltd and Ors (Supreme Court of New South Wales, 16 October 1996, unreported) Santow J identified various considerations that have been held to be relevant to the exercise of that discretion. Those principles were adopted in the following summarised form in Maile v Rafiq [2005] NSWCA 410 (in turn adopting the propositions stated in Wyer v Hunt [2005] ACTSC 15 at [21]):

"(a)Where a party makes a clear and distinct admission which is accepted by the opponent and acted upon, an application to withdraw the admission should not be freely granted.

(b)The question is to be considered in the context of each individual matter, but the general guideline is that the party seeking to withdraw should provide some good reason why the court should disturb what was previously conceded.

(c)Where the court is satisfied that an admission has been made after consideration and advice such as from an expert and after a full opportunity to consider its case and whether the admission should be made, admissions made with deliberateness and formality would ordinarily not be permitted to be withdrawn. The court will not approve the withdrawal of an admission where the application to withdraw is actuated by purely tactical reasons.

(d)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 the admission was made inadvertently or without due consideration of material matters. Leave may be refused if the other party has changed its position in reliance on the admission."

These matters now have to be considered in light of the provisions of the Civil Procedure Act 2005, ss 56-60, which declare in statutory form the overriding purpose of the court's procedures, namely, the just, quick and cheap determination of disputes.

53Against this background, the question needs to be asked as to what might occur if leave to further amend is granted. Should leave be granted, and the appellants are successful on the appeal, the Court may enter judgment for the appellants as sought in order 1. Alternatively, it may order that there be a new trial, as sought alternatively in proposed order 10. If the Court orders a new trial, the appellants will need leave either of this Court or of the court below to withdraw its admissions of diagnosis and liability. I would observe that leave may be required in any event before leave to amend the notice of appeal is granted. Such leave has not been sought. Whilst I do not propose to determine the application for leave to amend the notice of appeal on that basis, it is appropriate to consider what might follow should such an application be made.

54If leave was given to withdraw the admissions, Mr Reilly's estate would, undoubtedly, be given the opportunity to meet the new case thus brought by the appellants where all issues of liability were in issue. Mr Reilly's estate may be successful in its claim on the further hearing on the basis of any additional evidence it may adduce. Should that occur, there would still be inconsistent verdicts as between the appellants and Malabar. Accordingly, the concern which underlies the appellants' wish to further amend the notice of appeal, namely, to avoid the legal ignominy of inconsistent verdicts, may not be achieved.

55As the appellants have not sought leave to withdraw their admissions in the reply, it is not appropriate to form any view as to the likelihood of leave being granted. However, as I have already indicated, the Court's consideration of any such application would involve a separate exercise of discretion from that involved in the question of leave to amend. In accordance with the principles to which I have referred, relevant considerations in that application would include whether and when the appellants had access to Malabar's medical evidence, the fact that they had legal advice before making the admissions and that they had engaged in a dispute resolution and trial process which will be rendered nugatory. The costs implications to Mr Reilly's estate would thus be another consideration, as would the real cost to the administration of justice to which s 56 is directed.

Grounds 2 and 10

56Mr Reilly's estate resisted the proposed amended paragraphs (2) and (10) on the basis that the issue raised in each of the sub-paragraphs was not raised at trial. Arguments were advanced as to why such grounds would not succeed. Given the limited basis upon which the parties advanced their arguments, it would be inappropriate to reach a concluded view on that matter. However, it could not be said that the issues raised in the proposed grounds 2 and 10 are unarguable.

57I should add the appellants indicated that a possible argument underpinning these grounds was that the mediation provisions of the Regulation are a jurisdictional pre-condition to a contested hearing. It is not necessary to make any comment on that, as this argument was raised but not amplified, nor was it advanced as a certain basis upon which this ground would be argued, if leave to further amend was granted.

Grounds 8 and 9

58Mr Reilly's estate opposed leave in respect of proposed amended grounds 8 and 9 on the basis that the issue raised therein was not raised at trial. Mr Reilly's estate also submitted that the appellants had conceded that Mr Reilly had contracted asbestosis and at no time foreshadowed that they proposed to adopt a different position. This submission is correct save for the short submission made by counsel in the course of final written and oral submissions to which I have referred.

59The question whether Mr Reilly contracted asbestosis involved factual matters that called for expert evidence. Although Mr Reilly's estate adduced expert evidence to prove its case as against Malabar, its position was that it may have adduced further evidence if the diagnosis of asbestosis was in issue between them. I deal with this below.

60Grounds 8 and 9, in my opinion, are restatements of proposed amended grounds 2 and 10 and the comments I have made in respect of these grounds apply equally here.

61In my opinion, proposed grounds 2, 8, 9 and 10 seek to attack what was not in issue at trial as between the appellants and Mr Reilly's estate, namely, liability, in any of its aspects. The appellants' real contention, however, is that it should not be liable to pay damages in circumstances where, in the course of the same hearing, in proceedings against a different respondent, the trial judge held that Mr Reilly did not suffer from the condition of asbestosis. The proposed amendments seek to redress the position they find themselves in as a result of admitting liability. In other words, these grounds are another way of advancing its already pleaded challenge that inconsistent verdicts ought not be allowed to stand. However, they do so in ways that would undermine the basis upon which the matter was conducted at trial. As I have indicated, even if the amendments to the notice of appeal were allowed and the appeal was successful, the likelihood of the appellants being successful on a retrial is not a foregone conclusion.

Prejudice to Mr Reilly's estate

62The appellants contended that Mr Reilly's estate had not suffered prejudice in the sense referred to above in Coulton v Holcombe. The question of diagnosis was in issue as between Mr Reilly's estate and Malabar. In short, the appellants submitted that the case had been fought on the very issue in respect of which Mr Reilly's estate now contends it is prejudiced.

63The question of prejudice was dealt with by Ms Seaton, solicitor with the carriage of the matter for Mr Reilly's estate, in her affidavit sworn 6 August 2012. In particular, Ms Seaton stated at para (28):

"If the appellants had sought and obtained leave at the trial to withdraw their admissions concerning diagnosis, the plaintiff would have had the opportunity to consider whether any further evidence was available to be called in her case against the appellants on this issue. If the appellants in addition had sought to challenge the efficacy or validity of the mediator's certificate, the plaintiff would have been in a position to call evidence supporting her case that the parties at the mediation had agreed that the only issue at trial of the proceedings the subject of the mediation was the issue of the quantum of the plaintiff's damages."

64The essential matter upon which the medical experts reached different diagnoses was the rate of onset of the disease. The medical expert retained by Malabar considered that the speed with which the fibrosis in the lung tissue developed was less consistent with the normal pattern of asbestosis. Mr Reilly's estate's medical expert was of a contrary view.

65Senior counsel for Mr Reilly's estate said that there would have been available medical evidence that could have been called in relation to the significance of the speed of onset of symptoms. He pointed out that the retention of medical experts comes at a significant cost and submitted that Mr Reilly's estate was in a position where, prior to trial, it could be reasonably satisfied that the apportionment as between the appellants and Malabar would be in the order of 85 per cent to 15 per cent, but certainly in a proportion of greater than 50 per cent as to the appellants' liability.

66The essence of this submission was that in those circumstances, forensic considerations, including questions of costs, were in play as to whether to engage additional medical experts to counter the view propounded by Malabar's expert. Given that the matter in issue as between Mr Reilly's estate and the appellants was quantum and given the likely apportionment as between the appellants and Malabar, the costs involved in engaging additional evidence had to be balanced against the possibility of losing 15 per cent or so of the damages to which Mr Reilly's estate would otherwise be entitled.

67If there were a possibility of a verdict against it, the forensic considerations for the estate would have been very different. Thus, if the appellants had sought leave to withdraw the admission of liability and argued that they were not bound by the mediator's certificate, Mr Reilly's estate would, as Ms Seaton stated in her affidavit, have had the opportunity to ascertain whether any further evidence was available to be called in support of the claim.

68Senior counsel's submissions went further than the affidavit evidence, in that he submitted there was medical evidence available that would have supported Mr Reilly's estate's claim that the correct diagnosis was of asbestosis. No objection was taken to senior counsel advancing the submission in those terms. However, it is sufficient for the purposes of considering whether a new point should be allowed to be taken on the appeal to base my decision on Ms Seaton's evidence. Her evidence was sufficient to satisfy the test in Coulton v Holcombe.

69I am prepared, however, to accept senior counsel's statement that the case was assessed on the basis that the likely apportionment between the appellants and Malabar was well in excess of 50 per cent and in the order of 85 per cent to 15 per cent. Senior counsel is an experienced counsel with expertise in the Dust Diseases Tribunal. No objection was taken to the making of the submission, other than as to its likely inaccuracy, given that the Contributions Assessor apportioned liability as to 60 per cent to Malabar and 15 per cent to each of the appellants. However, senior counsel for Mr Reilly's estate explained that the Contributions Assessor's determination is only binding on defendants for the purposes of settlement of a plaintiff's claim. Once the matter proceeds beyond the claims resolution process, the contributions assessment becomes irrelevant. In any event, the proposition that the appellants would be found liable for the major portion of the claim was borne out by the judgment.

70In my opinion, Mr Reilly's estate would be prejudiced within the principles stated in Coulton v Holcombe and I would not grant leave to further amend the amended notice of appeal.

71Accordingly, I make the following order: