Kislyakova v Pointon[2015] QSC 158

SUPREME COURT OF QUEENSLAND 

1. ATKINSON J:   The applicants are the second and first fourth parties in litigation which was commenced in 2012.  They seek to withdraw admissions made by them in their original defence of a claim made against them by the third parties to this litigation.

2. The background to the litigation is set out in the submissions made by the parties to this application, being the second and first fourth parties as first and second applicants respectively and the first third party as respondent.  The original proceeding was filed in this court on 30 March 2012.  Those proceedings comprise a claim by Orchid Avenue Pty Ltd, as vendor of four units in the Hilton Development situated in Surfers Paradise, against the defendant, Mikhail Fuflygin, as purchaser of those units.  It is alleged that the defendant failed to complete contracts for the sale of those units.
3. The defendant commenced third party proceedings against the first third party, Q Property Lawyers, who had acted for him in respect of his purchase of the units, alleging that he was not advised, amongst other things, of the fact that the contracts were not subject to finance.  He alleged that had he been so advised, he would not have entered into the contracts.  He further alleges that he could not speak or understand English and that he relied upon the second fourth party, Irina Kislyakova (“Irina”), for advice and assistance.
4. The second third party is a company which is alleged to have undertaken marketing on behalf of the vendor and to have made various misrepresentations as to the attributes or otherwise of the units.  The defendant also contends that the second fourth party was appointed as the vendor’s agent and that she made misrepresentations for which the plaintiff is said to be liable.
5. Proceedings were commenced against the first and second fourth parties on 5 May 2014, more than two years after the commencement of the original proceeding.  A defence was filed in which it was admitted that the second fourth party, Irina, had translated what was said by an employee of the first third party from English into Russian for the defendant when requested to do so by the defendant.  The fourth parties have, however, changed solicitors and wish to withdraw that admission, swearing that in truth it was the second fourth party’s daughter, Olga Kislyakova (“Olga”), and not the second fourth party who translated some of what was said from English into Russian for the defendant when requested to do so by the defendant.  There is currently no allegation by the first third party or anyone else that Olga was the person who did the translation.  However, it is asserted by both Olga and Irina that that is the true state of affairs and they have each sworn to that.
6. The making of an admission in pleadings is, of course, a very serious matter.  The Uniform Civil Procedure Rules 1999 (Qld) do provide that admissions may be withdrawn by leave of the court, but only in certain circumstances. 
7. In Hanson Construction Materials Pty Ltd v Davey,^[1] Chesterman JA quoted at length from the judgment which was the subject of appeal in that case, in effect endorsing the learned trial judge’s approach to determining whether leave to withdraw admissions should be granted.^[2]
8. The first instance decision had been made by Margaret Wilson J.  In it, her Honour set out what has become the generally accepted test for the withdrawal of admissions under the Uniform Civil Procedure Rules 1999 (Qld).  Her Honour held:

“The following matters are generally relevant to the exercise of the discretion whether to grant leave:

• how and why the admission came to be made;
• the evidence surrounding the issues the subject of the admission;
• whether there is likely to be a real dispute about the evidence;
• any delay in making the application for leave to withdraw the admission;
• prejudice to the other party.”^[3]

9. Her Honour continued,

“Leave to withdraw admissions is not obtained for the asking.  It will rarely be granted in the absence of evidence that there is a genuine dispute about the matters deemed to have been admitted”.^[4]

10. It is perhaps obvious that deemed admissions, made as a result of a failure to plead, might be thought to be more readily subject to a successful application for leave to withdraw than admissions which appear, as here, to have been consciously made.  It is therefore most important in this case to examine how and why the admissions came to be made.
11. Mr Garlick, the barrister engaged by the new solicitors retained by the fourth parties, was reluctant to be critical of the solicitors who had previously acted for the second fourth party.  It appears nevertheless from the submissions and the evidence led before me, both of Irina and Olga, and of the solicitor now acting for the second fourth party, that the explanation for the admission which is now said to have been incorrectly made was the difficulty that the second fourth party has understanding English, which is her second language.  She is a native Russian speaker and her present solicitor attests to her need for clear explanations of matters associated with the litigation.  The solicitor further says that the second fourth party’s daughter, Olga, has a much better understanding of English and that he therefore always takes the precaution of having Olga present at any meetings he has with Irina to take instructions.
12. The solicitor has now taken specific instructions from them both, identifying that it was Olga, rather than Irina, who was translating from Russian into English and from English into Russian at what is said to have been the critical meeting on 27 January 2010.
13. It is not possible for me to tell from the material whether or not this explanation as to what occurred in that meeting will be found to be true, but that is a matter to be determined by the trial judge who hears the evidence properly tested.  It is certainly the case that, if that is said to be the true state of affairs, then the pleadings do need to be amended and the admissions withdrawn so that the pleadings accurately state the case which the fourth parties wish to litigate in answer to the claim made against them.
14. It is also said by the fourth parties’ solicitor that it was only when he concentrated on the date of the crucial meeting that he was able to get proper instructions from the second fourth party and her daughter, who is an employee of the first fourth party, as to what happened at that meeting.
15. I am satisfied that this is an explanation as to how and why the admissions came to be made.  There is now sworn evidence before the Court surrounding the issues the subject of the admissions that have been made which clearly puts those admissions into dispute.  There is a real dispute about the evidence, but that will have to be the subject of the trial.  There has been some delay in making the application, however the pleading which commenced the action against the fourth parties was commenced only last year, not in 2012 as was the original claim. 
16. Additionally, it is appropriate to recognise the difficulties experienced by those for whom English is not their first language, where English is the dominant language in use.  That issue lies at the centre of this litigation, on which I make no comment generally but which, as I have referred to earlier, arises out of a failure to complete contracts by a defendant who required assistance with the English language in business transactions.  The observation was made by Kirby P, as he then was, in Adamopoulos v Olympic Airways SA^[5] that:

“The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person’s own pace does not necessarily mean that he or she is able to cope [when confronted] with … added stresses …”^[6]

17. His Honour made that statement in relation to witnesses in courts of law, as that was the issue with which the court was there concerned. However, in so doing, His Honour drew a distinction between formal environments, of which the courtroom is an example, and those which are casual or relaxed, in which language may more easily flow.  Giving legal instructions appears to fall into the formal category, given the stress and anxiety that often attach to being a party to litigation.  Cases like the present serve to show that legal practitioners must always take care to use appropriate language and ensure that their client fully comprehends their advice and its consequences.  This is especially so where an individual may have particular difficulty in understanding them, by reason of language or otherwise.

18. Counsel for the first third party in his helpful submissions has set out the prejudice which the first third party is likely to suffer.  This includes a necessity for the first third party to consider whether it should join Olga to the fourth party proceedings on the basis that, if it is found that she provided the translation services, she did so without exercising reasonable care.  The first third party may need to amend its third party defence and fourth party statement of claim to take account of an alternative claim that it was Olga who provided translation services, to guard against the prospect of a finding that it was so.  This will cause further delay and expense in the conduct of this case.
19. Nonetheless, the litigation as a whole is subject to case flow management because the parties who were involved before the fourth parties’ joinder had not litigated with sufficient expedition.  It is therefore not a matter that has otherwise proceeded without undue delay.  Mr Jackson has properly conceded that there is no problem of limitation of the action by the time that has passed.  As such, the prejudice which his clients will suffer is not incapable of being remedied with an order for costs. 

Orders

20. The orders of the court are that:
    1. The fourth parties have leave:
       1. to withdraw the admissions made in subparagraphs 10(b), 10(c), 11(b), 11(c), 12(b)(iii), 12(b)(iv) and 16(c) and 16(d) of the defence of the fourth parties filed  17 June 2014;
       2. to withdraw the admission made in paragraphs 1(a)(v) and 1(e) of the amended further and better particulars of the fourth party defence, filed 16 July 2014 and amend; and
       3. consequential to leave to withdraw the admissions referred to in subparagraphs 1(a) and (b) above, to plead the matters set out in the amendments in paragraphs 18(c), 19(c) and 19(e) of the amended defence of the fourth parties filed 15 April 2015.
    2. The fourth parties pay the first third party’s costs of and incidental to the application filed 7 May 2014.
    3. The fourth parties pay the first third party’s costs thrown away by reason of the withdrawal of the admissions referred to in paragraph 1 above.