2 Relevantly for present purposes was the business of the Australian Corrugated Box Co Pty Ltd the assets of which were sold pursuant to an Asset Sale Deed, made on 2 June 2003, between Australian Corrugated Box Co Pty Ltd as vendor, and ACB Australia Pty Limited as purchaser, Achilla Pty Limited (Achilla) and Craig Holihan. This Deed is referred to as the Second Sale Agreement. The Agreement provided that Achilla would change its name to that of the vendor (and is referred to as ACB); that occurred and the vendor changed its name to ACN002693843 Box Pty Ltd (ACN Box). It was further provided that Holihan, who was a director of the purchaser, would provide certain guarantees of performance, these were contained in clause 11 and included a guarantee and indemnity in respect of ACB Australia Pty Limited and ACB (formerly Achilla).

3 When the Agreement was entered into Holihan was employed by Amcor; his employment ceased on 31 July 2003, the day following settlement of the Agreement. Amcor understood that it was selling to Holihan and his companies, but did not know that other employees acquired interests.

4 Two proceedings were commenced called respectively the Hodgson proceeding (in the Trial Division No. 9420 of 2004), and the Barnes proceeding (in the Trial Division No. 8181 of 2007).

5 The present application arises in the Barnes proceeding. The plaintiffs were Amcor Ltd ('Amcor') and another Amcor company; it is convenient to refer to them - and other Amcor companies - collectively as the Amcor parties. The defendants were former managers, including Holihan, and two companies, ACB (formerly Achilla), and ACB Australia Pty Limited. Those defendant companies counterclaimed against ACN Box and Amcor Packaging (Australia) Pty Ltd (APA); this is referred to as the Achilla Counterclaim. The Amcor parties seek to amend their defence to the counterclaim and APA to cross-claim including adding Holihan as a cross-respondent seeking relief from him under his guarantee and indemnity.

6 A joint trial of the proceedings was had before his Honour in 2011. When it commenced, the trial included the Achilla Counterclaim in which Achilla alleged breaches by the Amcor vendor of supply obligations in the Second Sale Agreement (and now, by the amendments referred to below, also in an alleged Implied Supply Agreement). The trial as to liability on the Achilla Counterclaim was to be heard on 25 and 26 July 2011. However, on 29 June, as a result - we were told - of a shortage of available time, his Honour vacated the trial date and adjourned the trial of the counterclaim sine die. It remains pending.

7 His Honour gave judgment in the proceeding on 20 March 2012 (Principal Judgment).[1] In the course of his submissions the respondents' counsel referred to a subsequent judgment of his Honour, made on an amendment application, in which his Honour conveniently stated that the essence of the Amcor litigation against Barnes and the Holihan parties was this:

Although the proceedings were highly complex, if the essence of the Amcor case is to be reduced from the Third Amended Statement of Claim, the Amcor case against Barnes and the Holihan parties may be distilled down to this: Barnes and the Holihan parties participated in the sales of the two business [sic] under the sale agreements in circumstances which amounted to a breach of their statutory and fiduciary duties to Amcor which, by reason of the sales being on uncommercial terms, Amcor suffered loss and damage and Barnes and the Holihan parties made profits, and Barnes and the Holihan parties 'obtained benefits and other benefits'.[2]

8 It is sufficient to note that Amcor was left bound by the agreements. At the same time, severe adverse findings were made against the former employees on account of the deception engaged in to conceal their actions; as to this, the position of Holihan differed somewhat from that of Barnes and the other individuals. We were referred to a judgment of his Honour on costs where the findings in relation to Holihan were summarised.[3] In short, the judge accepted that Holihan had not known that Amcor employees acquired interests in ACB. Amcor has appealed from the Principal Judgment but the appeal has not been heard.

9 Since the Principal Judgment, the parties have engaged in interlocutory work including on the Achilla Counterclaim. On 22 April 2013 his Honour granted leave to amend the counterclaim; this introduced allegations of an Implied Supply Agreement, Estoppel by Convention and Release of a Charge.

10 As then foreshadowed, the Amcor parties sought leave to amend their defence to the Achilla Counterclaim, and they applied for such leave and to introduce a cross-claim on 20 June 2013. They also sought the joinder of Holihan as a defendant to the cross-claim.

11 In a ruling delivered ex tempore at the conclusion of argument, his Honour allowed the application in part,[4] including the joinder of Holihan. He refused leave in respect of paragraphs 6(f)-(j), all paragraphs under headings B3, C2 and H-I inclusive, paragraphs 93-94, 97-98, and in the prayer for relief paragraphs A, B, D and E.

12 The Amcor parties now seek leave to appeal from his Honour's order.[5] They do not, however, press the amendments to sections B3 and C2. And, as was stated to the judge, the words 'pursuant to the orders of Vickery J dated 22 March 2012' in paragraph 65(e) are to be deleted.

13 If leave to appeal be granted, the applicants ask that the appeal be heard instanter. The President has provided a determination that authorises us to hear the appeal.

14 In a case such as this, where the orders were discretionary, the applicants must not only establish that the judgment is attended by doubt sufficient to warrant leave, and of the risk of substantial injustice if the orders stand, but also that the discretion miscarried in the House v The King[6] sense.

15 In his ruling his Honour first considered the amendments proposed in section H. This commenced with paragraph 53 which stated that the following allegations were advanced if it be found that the Implied Supply Agreement came into existence as alleged, and/or the defendants (being the Amcor parties) by counterclaim had breached the Second Sale Agreement. On this basis it is alleged that, on or around May or June 2004, and again on or around October 2005, ACB and ACB Australia Pty Limited breached change of control provisions in the Second Sale Agreement. The like allegation is made in relation to the Implied Supply Agreement, which is alleged to contain the same provisions.

16 It is alleged that Holihan and Barnes and the other former Amcor employees acquired the ability to direct or influence the behaviour of ACB and ACB Australia Pty Limited, and/or to control ACB and ACB Australia Pty Limited within the meaning of s 50AA(1) of the Corporations Act 2001 (Cth). It is alleged that under the Second Sale Agreement or the Implied Supply Agreement, the Amcor vendor should have been notified of the change of control, for the purpose of consent, but it was not notified and did not consent. It is alleged that Amcor was not aware of the change or changes of control, that as a result it had lost the chance to take steps in its interest which it could otherwise have taken, and seeks damages. It sets-off these damages against any liability under the Achilla Counterclaim, and cross-claims for the amount of any excess. It is further alleged that pursuant to a guarantee and indemnity Holihan is liable to indemnify the Amcor parties in respect of the breaches.

17 The allegations as to interests held, control, and change of control are, by particulars, based upon findings made in the Principal Judgment. It is thus apparent that the Amcor parties propose to rely on those findings as facts in proof of the matters alleged.

18 His Honour said that the plea as to change of control could not be permitted, for two reasons.

19 First, at the trial he was relevantly concerned to find what 'interests' were held by the former Amcor managers in the ACB business. This consideration culminated in the findings in paragraph [1147] of the Principal Judgment, viz:

I am satisfied that the former managers (the Defendants) acquired their interests in the ACB Business from about 26 May 2003 crystallizing upon the sale of the ACB Business on 2 June 2003 and settlement of the Second Sale Agreement on 30 June 2003. Hodgson, Sangster, Mihelic and Bayley maintained their interest until about October 2005 when the 28 May 50/50 Holihan/Barnes Agreement was entered into and backdated to 28 May 2003 and the original 26 May 80/20 Shareholders Deed was endorsed "cancelled". By this means, in October 2005, Hodgson, Sangster, Mihelic and Bayley renounced any interest in the ACB Business and renounced any entitlement for them or companies associated with them to any share in the profits of the ACB Business.[7]

20 His Honour said that if Holihan had had to meet the new allegations at trial he could possibly or even probably have presented his case differently.

21 Secondly, and while acknowledging that 'interest' and 'control' were not the same thing, they were 'intimately connected'.[8] The Court and Holihan would necessarily be inhibited by the findings which culminated in paragraph [1147].

In those circumstances it appears to me although now this is a complex matter, and the issue as to the separation of the Achilla counterclaim as I have called it was a product of sensible case management. Nevertheless the outcome has meant necessarily that the court cannot be placed in a position of reversing its finding made in the judgment - in its primary judgment to which I have referred. Nor would it be satisfactory for a party in the position of Mr Holihan and his associated companies, to seek to adduce evidence and maintain a case that was contrary to the finding made in the primary judgment, because it could lead nowhere. The court would not be in a position to reverse its earlier finding, even if it upon the presentation of further evidence felt compelled to do so.[9]

23 The rejection of Section H carried the other rejected parts except for sections B3 and C2. As sections B3 and C2 are not now pressed no further reference to them is necessary.

24 The draft notice of appeal contains a number of grounds. Ground 1 was not pressed as a distinct ground, although the applicants emphasise the findings to which it refers, as bearing on other grounds. Essentially, these were the findings that the respondents had created a false evidentiary trail to conceal from Amcor the true interests in the ACB business and for the purpose of defeating or delaying the administration of justice.

25 Ground 2 contends that the judge erred in law in finding that the respondents could have conducted the case differently, when there was no evidence to that effect or proposition from counsel as to how and in what manner the respondents could have done so.

26 Ground 3 contends that his Honour erred in law in relying upon the following matters:

(1) that in maintaining a defence to the amendments the respondents would necessarily be inhibited by the findings made in the Principal Judgment;

(2) that the court would be inhibited in considering evidence and making findings on evidence that tended to fly in the face of the findings made in paragraph [1147] of the trial judgment;

(3) that as a result of the separation of the Achilla Counterclaim from the principal proceeding for reasons of sensible case management, the amendments would:

(a) place the Court in a position of reversing its findings made in the Principal Judgment;

(b) place the respondents in a position whereby they would seek to adduce evidence and maintain a case contrary to the findings made in the Principal Judgment.

27 Ground 4 contends that the judge erred in law in not permitting the applicants to rely on findings made in the trial judgment.

28 Ground 5 contends that the judge erred in law in not considering the prejudice suffered by the applicants should leave be refused. As to this, it is correct that his Honour did not expressly refer to the applicants' prejudice.

29 Ground 6 contends that the judge erred in allowing case management principles to override or adversely affect the applicants' entitlement to a trial of their substantive rights. This ground is comprehended by Ground 3.

30 The applicants' counsel submitted that Ground 2 satisfied the House v The King[10] criteria because:

(1) the judge acted on the wrong principle, viz that it was sufficient for the respondents merely to assert that, had they faced the amended case at trial in 2011, they would have run their defence 'differently';

(2) the judge did not take into account a material consideration, viz the way in which the respondents (and all other defendants) conducted their defence. That is, an 'all or nothing' position according to which each defendant had no direct or indirect interest in the ACB business. The judge did not accept that evidence. In their written outline counsel said:

The case of the Respondents (and the other defendants) was at all times that the 80:20 shareholding never proceeded and that it was always 50:50.[11] Each of the defendants gave sworn evidence that (1) other than Messrs Barnes and Holihan, no defendant had any direct or indirect interest in the ACB business and (2) the 80:20 arrangements had never proceeded. This common position accorded with the calculated efforts to conceal from the Amcor parties and the Court the true position in respect of business interests.[12] Given the lengths to which the Respondents and other defendants went to conceal such matters (including the evidence given at the trial), the contention that they might have run the trial differently is wholly implausible. The Respondents and other defendants had committed to a false position. This position necessarily entailed the denial of any sort of control.[13]

In the circumstances, counsel submitted, the respondents (and other defendants) would not have conducted the case differently. Further, the respondents had not explained (on oath or otherwise) how they would have conducted the case 'differently'.

31 Counsel submitted that the findings on which Amcor relies to found the amendments, do not preclude the respondents from adducing evidence going to 'control' as distinct from 'interest'. Further, the respondents' April amendments[14] indicate that they will call the former relevant witnesses again.

32 It was further submitted that his Honour's reasoning as to whether the respondents would have conducted their case 'differently' presupposed that the new breach of contract allegations could have been brought before or at trial. That was wrong. The Amcor parties could not have done so, and could not have led evidence to that effect, before receiving the findings in the Principal Judgment. The judgment identified for the first time the relinquishment of interests in October 2005. That, counsel said, "was not run or aired or ventilated in the trial". As to this, counsel noted:

(a) The respondents (and other defendants) concealment of the ownership position of the ACB business prevented the applicants from having sufficient material to make the allegations earlier.

(b) The shareholder agreements did not provide sufficient material facts to plead a breach of contract claim based on changes in control. The Amcor parties required material facts of the dealings and conduct between the owners or 'controllers' of the companies to support an allegation of a change in control.

(c) The Amcor draft judgment[15] did not mention change of control.

(d) In any event, insofar as the amendments plead 'change in control' to the Implied Supply Agreement, that Agreement was only raised by amendment in April 2013, so the Amcor parties could not have raised the amendments concerning it before then.

33 Counsel submitted that if there be 'inhibition' it applied to all the parties and the Court and is a natural corollary of the trial having been split. That is not a prejudice. Further, the 'inhibition' was also a result of the 'all or nothing' way in which the respondents (and other defendants) conducted the case.

34 It was then submitted that even if an 'interest' in one or both companies was 'highly relevant'[16] to the question of control of those companies (as the judge found), the judge's findings would not prevent the respondents from defending the allegations based on absence of control. At best, the findings could only preclude a finding based on absence of interest. But that would not constitute material prejudice. Rather, any difficulty arises from the following: the false and misleading position adopted by Holihan and others for the purpose of the first trial; the decision to split off the counterclaim; and that the findings bind the parties on the proceeding. This is not prejudicial to the respondents where they have not appealed the relevant findings. The applicants simply seek 'to rely on the fruits of such findings'.[17]

35 Finally, given the conceptual and practical differences between interest and control, the inhibition is neither significant nor prejudicial. The factual inquiry is different and can be determined without interfering with the existing findings.

36 It was submitted that the ruling implicitly found that the applicants could not advance a case which carried the risk of undermining previous findings. This approach was erroneous.

37 Counsel for the respondents submitted that there was neither doubt or sufficient doubt as to the correctness of the decision, nor substantial injustice should the decision stand. In summary, counsel submitted as follows.

38 The respondents' counsel argued Grounds 2 and 3 together. He submitted that the applicants could have raised the new allegations prior to the delivery of judgment. For, even prior to trial, the applicants had all the documents and admissions required to make the allegations. They were sufficiently satisfied that the relevant employees had acquired an interest in the ACB business to have pleaded that as an integer of equitable fraud. Moreover, they closed their case with submissions to the same effect as the findings they now rely upon.

39 As to whether the respondents' case may have been conducted differently, counsel submitted as follows. While this consideration was difficult to assess, the judge was well placed, with his close involvement with the proceedings, to assess the likelihood.

40 As to this, the case as to control requires proof of further elements (that is, to the findings on interest); and it is those further elements that would prejudice the respondents.

41 Further, there was no reason for the respondents to have cross-examined any of the relevant employees as to the extent of any interest, or about the practicalities or realities of any control over the respondents, or about what he might have done had the respondents attempted to rectify the alleged breaches. And now, any relevant employee approached by the respondents to give evidence concerning the new allegations would be in the invidious position of either giving evidence inconsistent with the earlier findings (knowing the Court would likely find the evidence to be untrue) or giving evidence that his earlier account was untrue (potentially exposing himself to sanctions). That prospect would present the respondents with insurmountable difficulties in marshalling and presenting evidence.

42 Further, it did not follow from the judge's non-acceptance of evidence of the relevant employees, or from the findings of concealment, that the respondents might not have run the trial differently.

43 Further, control is determined at least in part by interest. It is the capacity to control and not its exercise that is pertinent to a change of control question. It would be artificial to explore the question of control without exploring the question of interest, and to require the respondents to defend a case on that basis would deprive them of procedural fairness. And for the respondents to lead evidence about control, inconsistent with the findings at trial, would invite new findings tarnishing those trial findings.

44 Finally, the judge adjourned the counterclaim after the applicants closed their case and prior to final submissions. It was done for case management reasons, not to hive off questions regarding performance of the agreement from the attempt to have it declared void.

46 The respondents submitted that although the judge did not expressly refer to the matter of prejudice to the applicants, it was not to be considered that he did not take account of it. For the applicants had adverted to their prejudice in their submissions, and the importance of the amendments to the applicants was selfevident. Further, the ruling was given ex tempore and in that situation the absence of reference to a material factor did not mean that the judge did not take account of it.

47 Then, any prejudice to the applicants was outweighed by the irremediable unfairness to the respondents.

48 The respondents submitted that the decision was not founded upon case management principles, but on fundamental precepts of natural justice and public policy: procedural fairness, the certainty of judgments and finality of litigation.

49 Lest, however, there be sufficient doubt regarding the judge's reasons, the respondents had filed a notice of contention which sought to uphold the decision on the basis of the principle in Port of Melbourne Authority v Anshun Pty Limited,[18] The notice contended that the applicants could have, and it was unreasonable for them not to have, raised the new claims in their statement of claim in the proceeding. Having failed to do so, they should not now be permitted to raise the new claims.

50 At the outset of his submissions counsel for the respondents said that his Honour had determined the case "on a matter ... properly described as prejudice. Not in the usual manner of prejudice for amendments, but prejudice which was more akin to Anshun".[19] Nevertheless, counsel did not press this contention, recognising that Anshun was more appropriately to be pleaded as a defence. Indeed, it was not appropriate to ask this Court to engage in the analysis that a defence based on Anshun would require. That was particularly so as his Honour had declined to deal with the contention, which meant we were without the benefit of the trial judge's consideration of the issue.

51 If the Achilla Counterclaim had not been separated from, but been decided with, the proceeding between the plaintiffs and defendants, and assuming the presently proposed amendments by the Amcor parties had not been made, the present application for amendment would not have arisen. However, that is not what happened.

52 When his Honour adjourned off the hearing and determination of the Achilla Counterclaim and proceeded to determination of the trial between the plaintiffs and defendants, there was a risk that inconsistent findings might be made on the subsequent determination of the issues raised in the proceeding by counterclaim. There was also the risk of future applications to amend, as has happened. The litigation was heavy, and, given the benefit of the findings and conclusions in the Principal Judgment, the parties and their lawyers could be expected to turn their minds, not merely to an appeal from that judgment, but to how they might better fashion the next round on the counterclaim and the defence thereto.

53 And, self-evidently and foreseeably, that has happened. First came amendments to the Achilla Counterclaim, followed by the subject application to amend the Amcor parties' defence and to cross-claim. The latter application being opposed, the hearing on 20 June 2013 was required. For that purpose, the parties provided written submissions, each settled by senior and junior counsel and followed by a lengthy hearing. Now we have the application for leave to appeal, supported by written submissions settled by counsel and another hearing. The time taken up in all of this, and the attendant cost, must be large indeed. How this could be considered to conduce to the just, efficient, timely and cost-effective resolution of litigation[20] is not readily to be appreciated.

54 Anyway, what has happened in the conduct of the case has happened. His Honour has delivered the Principal Judgment, with findings on which the Amcor parties wish to rely in the establishment of the claims in their proposed amendments. Whether the subject amendments are made or not, those findings will stand unless and to the extent they are set aside on appeal. But they will not be set aside. The respondents have not appealed against them. The Amcor parties have appealed but not against the relevant findings, which they accept, and base their amendments upon.

55 The Amcor parties do not, by the amendments, seek relief on a basis that is inconsistent with the findings. The issue sought to be raised is one of control in connection with the contractual change of control provisions. That is not the same as the question of 'interests', as to which the judge has made findings. The question of control would be determined in the light of the relevant facts and circumstances which include the 'interests' found in the trial judgment. It is a distinct point which has not been litigated. The findings in the Principal Judgment would not 'inhibit' the parties or the Court in this exercise; rather, they are, or are sought by the applicants to be, part of the facts with regard to which the Court would conclude on the issue of 'control'. But the issue is a new one and technically the parties are not bound by them for this purpose; that was common ground. Of course, insofar as the respondents are concerned, the findings could only 'inhibit' them if they wanted to run a case contrary to them, as it is open to them to do. But the case on control is a different case. If the amendments are made, at a trial the respondents can go into evidence and ask questions as to the practical matter of control and matters that bear on that, without controverting the findings on 'interest'. On the matter of calling witnesses, and the former employees giving evidence, we accept the applicants' submission that those who relevantly gave evidence at the trial will need do so again on the Achilla Counterclaim. As to giving contrary evidence, the fact is that the evidence would be directed to a different point. Moreover, no evidence has been placed before us (or before the judge) that would indicate likely prejudice in this respect. In the circumstances, we consider that the matter of 'inhibition' did not warrant refusal of the application.

56 The question of greater difficulty is whether the respondents might have conducted the case differently if the amendments had been made when the trial was conducted. That leads also to the question as to why the amendments had not been sought at that earlier time.

57 It is convenient to commence with the latter point. Counsel sought to provide an understanding of the applicants' position at the earlier stage in the litigation. With that assistance we yet are now looking back with hindsight. In doing so there might seem force to the respondents' submission that the amendments could and should have been sought earlier.

58 We consider, however, regarding the matter overall, that the position was otherwise for the reasons stated by the applicants. One commences with the fact that the applicants were under the disadvantage of having had sand thrown in their eyes, and that the fog did not become clear until the judge made his findings in the Principal Judgment. To be clear, his Honour's judgment for the first time disclosed to the applicants that interests had been relinquished in 2005, which exposed the basis for raising a breach of the change of control provisions. (A change of control is also alleged in 2004.) Thus it was that as a result of the defendants' concealment of facts, the applicants were not in a position to plead and run a case alleging 'change' in control. Hence, the Amcor parties' submissions (in the form of a 'draft judgment') did not mention 'control'. However, we do not entirely accept the applicants' submission that they were not in a position to raise the issue of control because the Implied Supply Agreement had only been raised by the respondents for the first time in April this year. For, while until then the applicants could not have pleaded to that allegation, they could have pleaded to the Second Sale Agreement, and that pleading would have been to the same effect.

59 That brings us to the question as to whether the respondents might have conducted the trial differently if the amendments had then been made. The respondents sought by submission to have this Court accept that this was the case, although they did not provide evidence in substantiation of their difficulty or prejudice.

60 It is difficult to assess, looking back, whether a party would or might have conducted a case differently. Rogers CJ Comm D, warned of this in remarks quoted by Waddell AJA in Commonwealth Bank of Australia v Mehta,[21] viz:

... It is always a matter of great difficulty for any counsel to indicate in what way a case for the client would have been differently presented had the amendment sought by the other side been part of the matrix of the case at an earlier point. It is even more difficult for a judge, considering the application, to determine whether in truth the case would have been differently conducted and thereby occasion irreparable prejudice to the party confronting the proposed amendment.

61 In his ruling his Honour did not identify a specific difficulty that would or might confront the respondents. He referred to possible or probable difficulty and to the inhibiting effect of his findings in maintaining a defence to the amendments. That he did not develop or better identify the difficulty or prejudice in meeting the new claim is not surprising in view of the respondents' absence of explanation, which remains the position.

62 In the course of his submissions the respondents' counsel referred to passages in another judgment in the Amcor litigation where his Honour dealt with another amendment application.[22] There in refusing an application by the Amcor parties, made subsequent to the Principal Judgment, to amend the statement of claim by adding to the relief sought - that is, to amend a pleading in the proceeding itself and not in the proceeding by counterclaim - his Honour referred to the possibility (if the new causes of action and relief had been pleaded earlier) that Holihan (and Barnes) could have sought advice prior to the trial about the potential to claim from the other defendants or third parties an indemnity in respect of the claims. As we understood it, counsel relied on that as an example of how Holihan's case might have taken a different turn at trial. But it must immediately be said that his Honour was addressing an entirely different amendment, issues and circumstances. Counsel then said there were "many other examples" and instanced the evidence of a Mr Rogan. He said that their concentration at trial had been on bolstering Holihan's credibility up until June 2003; they "could freely allow issues after that time to be opened up because they couldn't damage us on the pleadings".

63 While every allowance is to be made for the respondents' submissions, and for the difficulty after the event to identify how a case might have been conducted differently, it is important to keep steadily in mind the issue sought to be litigated. The claim sought to be made is for damages for breach of contract for loss of the chance to have taken steps that might have been taken had the relevant Amcor parties been aware of the change of control found by his Honour. If that case be established, damages assessed are also sought from Holihan under his guarantee and indemnity of the first and second respondents' obligations under the Second Sale Agreement and the Implied Supply Agreement. That is the case against Holihan. Thus understood, it is a narrow case, and quite different from the Amcor parties case at trial. And, so too, as mentioned is the change of control case against the first and second respondents; the scope of the evidence will depend on whether, and to the extent that, the question of control differs from the issue of 'interest'. How far it differs is at this stage a matter of pure speculation. Neither the parties nor the judge will be bound, in respect of the issue of 'control', by reason of the findings on 'interest'.

64 These considerations lead us to the position that we do not accept that the case might have been conducted differently; in our view the possibility is not demonstrated.

65 On an application to amend the party opposing amendment bears an evidential onus of adducing evidence on the question of prejudice, while the applicant for amendment bears the burden of persuasion that the amendment will not cause irremediable prejudice to the other party.[23]

66 Of course the prejudice to the applicants if the amendment is not permitted is obvious. But the question is whether the possibility of injustice or prejudice to the respondents has been excluded. If not the application must be refused. It must also be refused if the Court concludes that it cannot decide whether or not it is just to allow the amendments.[24]

67 Regarding the matter overall, and taking account of all that counsel has said, we are persuaded that the allowance of the amendments would not cause the respondents irremediable prejudice. In our view his Honour erred in his analysis, and in rejecting the application. In our view the new issue can be run without injustice or prejudice to the respondents.

68 For these reasons, there will be leave to appeal, the appeal will be allowed, the orders below set aside and in lieu the order sought for the amendments will be made.

[1] Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors [2012] VSC 94.

[2] Amcor Ltd & Ors v Barnes & Ors [2012] VSC 434, [86] (citations omitted).

[3] Amcor Ltd v Barnes (No5) [2013] VSC 51, [52]-[54].

[5] The draft Notice of Appeal is exhibit CMM-2 to affidavit of Christiana Maree McCudden, sworn 4 July 2013 (McCudden Affidavit).

[6] [1936] HCA 40; (1936) 55 CLR 499, 505.

[7] Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors [2012] VSC 94, [1147].

[10] [1936] HCA 40; (1936) 55 CLR 499.

[11] Principal Judgment at [1045]. This is accepted by the Holihan Parties (see [T 67.09] at ex CMM-1 to the McCudden Affidavit).

[12] Amcor Ltd v Barnes (No5) [2013] VSC 51, [57]-[62] (Costs Judgment).

[13] Cf. the argument of the Respondents' on 20 June 2013 ([T 87.03] at ex CMM-1 to the McCudden Affidavit).

[14] See Third Amended Counterclaim of the Fourth Defendant, paragraph 3AA(e).

[15] Pursuant to pre-trial directions the final address of each party had two components, a draft judgment and an optional supplementary submission. Some comment on the former part of this requirement was made by the applicants' counsel. But the order was not a ground of the attack upon his Honour's ruling, and thus it does not fall for consideration.

[17] Safaro v Bonarrigo [2009] VSC 594, [20]; Lynn v White [2000] FCA 429; (2000) 171 ALR 217, 220.

[18] [1981] HCA 45; (1981) 147 CLR 589.

[20] See Civil Procedure Act 2010 (Vic), s 7(1).

[21] (1991) 23 NSWLR 84, 106.

[22] Amcor Ltd & Ors v Barnes & Ors [2012] VSC 434, [127]-[134].

[23] Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; McKenzie v Commonwealth of Australia [2001] VSC 361, [22]-[23]; Burk v Commonwealth of Australia (No 3) [2004] VSC 210; Jeanes v Commonwealth [2005] VSC 488; May v Thomas [2008] WASCA 215, [34].

[24] Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; Burk v Commonwealth of Australia (No 3) [2004] VSC 210, [74].