Aon Risk Services Australia Ltd v Australian National University

Supreme Court of WA|2011-03-09|Before: Dr J, Corboy J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SOIA -v- BENNETT [2011] WASC 59

Practice and procedure - Application to amend defence - Whether new defence pleaded - Whether amendment causes prejudice or delay - Explanation for delay in making amendment - Turns on own facts

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156

(This judgment was delivered orally on 1 March 2011 and has been edited from the transcript.)

1 This is an application by the defendant (Mr Bennett) to amend his defence. The application was made by summons dated 14 February 2011.

2 The application is opposed on the following grounds:

(a) the application to amend was made in circumstances where:

(i) the plaintiffs' action was commenced in February 2003;

(ii) the defence has stood in its current form since June 2003;

(iii) in October 2010, Mr Bennett informed the court that he was ready for the matter to be listed for trial;

(iv) the action has been listed for trial for five days commencing 14 March 2011;

(v) the plaintiffs' preparation for trial is advanced and in particular, witness statements have been prepared, filed and served;

(b) there was no proper or adequate explanation for the delay in making the amendments - that is, no explanation of why the matters now sought to be alleged were not pleaded in the defence filed in 2003 and as to the circumstances surrounding the making of the application;

(d) the plaintiffs will be required to adduce further evidence to meet the allegations that are made in the proposed amendments.

3 Mr Bennett contends that the proposed amendments merely better identify the real issues to be determined at trial by reference to matters that have already been pleaded.

4 I have concluded that the proposed amendments ought to be allowed. In reaching that conclusion, I have taken into account the explanation provided by Mr Bennett's counsel as to the scope of the amendments. It is, in my view, important to record those matters in these reasons to avoid any uncertainty as to the issues to be determined at trial.

5 The summary of the plaintiffs' case that follows is drawn from the allegations contained in the statement of claim. Consequently, what is stated is merely a recounting of the plaintiffs' allegations even though parts of the summary are in the form of a narrative. I identify in the summary those paragraphs of the pleading that are directly relevant to the proposed amendments.

6 The second plaintiff (PTS) conducted a private tuition business involving the personal tuition of students by the first plaintiff (Mr Soia) until mid-1999. Some time in the period between March 1999 and mid-June 1999, Mr Bennett made representations to Mr Soia about establishing a joint venture for the purpose of conducting a tuition business on the internet. It was proposed by Mr Bennett that PTS would cease conducting its business so that Mr Soia could concentrate solely on the business of the proposed joint venture and that Mr Bennett would fund the development of the internet business, including by providing management fees for Mr Soia. Those matters are alleged by par 3 of the statement of claim.

7 In reliance upon those representations, Mr Soia 'concurred' in the incorporation of a 'corporate joint venture vehicle' (ITC) with himself and Mr Bennett as directors (par 4 of the statement of claim). Companies controlled by Mr Soia and Mr Bennett each held 50% of the shares issued in ITC. The company through which Mr Bennett held his interest in ITC was known as Cityfield Holdings.

8 By par 5 of the statement of claim, it is alleged that at a meeting of directors of ITC held on 30 June 1999:

(a) Mr Bennett provided a budget for ITC which included expenditure for the next 12 financial years and which provided for the payment of management fees to Mr Soia in each of those years;

(b) Mr Soia and Mr Bennett orally agreed that the budget was adopted and would be implemented.

9 It is further alleged by par 5(c) of the statement of claim that Mr Bennett 'thereby represented expressly or impliedly that he would fund development of the business in accordance with the budget and that the first plaintiff would be paid management fees in accordance with the budget' (the Budget Representation). As pleaded, the Budget Representation is essentially an implication drawn from the combined effect of Mr Bennett's conduct in providing the budget, the contents of the budget and the agreement that the budget be adopted and implemented. It is important to also note that the representation is said to have been made at a meeting of the directors of ITC and that the budget was for that entity.

10 Particulars of the matters relied on to imply the Budget Representation have been provided. The particulars plead that:

It goes without saying that the defendant would fund the development of the business in accordance with the budget and that the first plaintiff would be paid management fees in accordance with the budget because the parties agreed to adopt the budget and implement the same. The plaintiff himself did not ever agree to provide funding for the business. The ITC budget estimates were provided by the defendant on the basis that he himself would provide the necessary funding for the business to operate.

11 It appears from those particulars that the representations said to have been made by Mr Bennett prior to the directors' meeting - that is, the representations alleged in par 4 of the statement of claim - provide a context within which to consider whether the Budget Representation was made. However, it is to be noted that it is not alleged that Mr Bennett said anything at the directors' meeting on 30 June 1999 that constituted part of the Budget Representation, apart from his agreement to the adoption and implementation of the budget.

12 Mr Bennett made further representations in July 1999 concerning payments that would be made to Mr Soia in the first year of the operation of ITC's business (see par 6 of the statement of claim). Mr Soia and PTS sold the properties from which PTS's business had been conducted and in or about November 1999, PTS ceased trading.

13 Payments were made by Mr Bennett to Mr Soia on account of management fees between March and July 2000. However, by letter dated 28 September 2000, Mr Bennett advised Mr Soia that Cityfield Holdings intended to cease funding the activities of ITC immediately.

14 It is alleged that the representations made by Mr Bennett as pleaded in pars 3, 5 and 6 of the statement of claim related to future matters for the purpose of s 9 of the Fair Trading Act 1987 (WA) (FTA) and that they 'had been falsified' in that:

(a) Mr Bennett failed to fund the joint venture and abandoned it in September 2000;

(b) Mr Bennett failed to pay or cause to be paid to Mr Soia management fees in accordance with the budgeted figures;

(c) no or no significant financial or professional rewards were derived by Mr Soia from entering into the joint venture with Mr Bennett in respect of the business of ITC.

15 Those matters are relied upon to allege that Mr Bennett engaged in conduct that was misleading or deceptive.

16 PTS suffered loss and damage as a consequence of the defendant's allegedly misleading or deceptive conduct in that it terminated its business. The business was not re-established until late January 2001 and lost profits for the period 1 July 1999 until 31 January 2001 are claimed. PTS also alleges that its profits from 31 January 2001 until 'date' (presumably, until the commencement of proceedings) were lower than they would have been had it not terminated its business.

17 Mr Soia claims that as a result of Mr Bennett's misleading or deceptive conduct he received less income in the period from 1 July 1999 to 31 January 2001 than he would have done had PTS not terminated its business and that his earnings between 31 January 2001 and the commencement of proceedings were less than they would have been had PTS not ceased trading. Further particulars of the plaintiffs' loss and damage have been provided that indicate that a significant element of their claim consists of lost profits and future income projected across the 12-year period covered by the budget.

18 The plaintiffs plead an alternative claim to the claim made for misleading or deceptive conduct. By par 19 of the statement of claim it is alleged that:

Between 4 May 1999 and 19 June 1999, [Mr Bennett] orally undertook to [Mr Soia], that if [Mr Soia] joined [Mr Bennett] in operating the business, and in consideration of [Mr Soia] doing so and devoting his time, energy and expertise to the development of the business [Mr Bennett] would fund the development of the business including providing for payment of management fees to [Mr Soia].

19 It is further alleged that by providing the budget considered at the meeting of directors of ITC on 30 June 1999 and by the agreement that the budget be approved and implemented:

Mr Bennett thereby undertook to [Mr Soia] expressly or impliedly that he would fund development of the business in accordance with the budget and that [Mr Soia] would be paid management fees in accordance with the budget, in consideration of [Mr Soia] participating in development of the business.

20 Mr Bennett breached the undertakings that he gave by not making payments in accordance with the budget and by ceasing to fund the business from September 2000.

21 The damages claimed by the plaintiffs for breach of conduct are similar to those sought for contravention of s 11 FTA. Mr Soia also claims lost management fees for the 12 years covered by the budget.

22 Much of Mr Bennett's present defence consists of denials. The effect of the defence is to put in issue the making of the representations and/or the giving of the undertakings and the suffering of loss and damage by the plaintiffs.

23 As has been previously indicated, the defendant contends that the effect of the proposed amendments is to more fully expose a case that is open on the present pleadings and to allege additional facts concerning issues that already form part of the plaintiffs' case as pleaded and/or as disclosed by a witness statement made by Mr Soia in anticipation of the forthcoming trial. In short, it is said that the proposed amendments merely state more fully Mr Bennett's case on issues that are already 'live' and that consequently, the amendments do not expand the issues to be determined at trial and will not cause prejudice to the plaintiffs.

24 It is to be noted at the outset that it is not contended by the plaintiffs that any of the proposed amendments were objectionable in form. I consider that the plaintiffs were right to implicitly make that concession.

25 The first amendment sought by Mr Bennett is to par 5.5 of his defence which pleads to the Budget Representation. The present defence merely denies the making of the representation. The proposed amendment pleads that in the event that the misrepresentation is found to have been made, it was 'by necessary implication conditional or limited to' circumstances in which ITC generated the income projected in the budget and in any event, the income of ITC covered the development costs and management fees referred to in the budget.

26 The plaintiffs contend that the proposed amendment pleads for the first time a positive case in respect of the Budget Representation; that is, that the proposed amendment pleads new facts that must be found at trial. They contend that they would be prejudiced if the amendment was allowed as there is insufficient time prior to trial to enable them to investigate whether there is further evidence they would wish to adduce in answer to the allegation.

27 It is curious that the proposed amendment is pleaded in answer to a finding that the Budget Representation was made. It appears to me that, in substance, the proposed amendment is directed to whether the representation alleged by the plaintiffs was, in fact, expressly or impliedly made. As I have indicated, in essence, the Budget Representation is an implication drawn from three matters: the provision of the budget, the contents of the budget and its adoption for implementation. In my view, the proposed amendments do no more than plead what Mr Bennett contends is the implication to be drawn from those matters in circumstances where the budget was provided to, and adopted by, a meeting of the directors of ITC. He has already denied that the representation was made; the proposed amendment merely explains why he denies what is alleged.

28 The plaintiffs allege that the implication to be drawn from the three matters pleaded in par 5 of the statement of claim is that Mr Bennett would fund the business activities of ITC according to the expenditure projected in the budget. Mr Bennett contends that the implication to be drawn is that the expenses of ITC would be met from the income projected in the budget; that is, that ITC's expenses were to be paid by ITC from its revenues. On Mr Bennett's case, the budget was a projection for ITC of its future revenues from which its anticipated expenses would be met. As the particulars to the proposed amendment indicate, Mr Bennett will rely on the budget document itself as the evidence of the implication for which he contends.

29 As such, the proposed amendment does not add to the issues to be determined at trial. Indeed, in my view, it would have been open to Mr Bennett on his present defence to argue at trial that the implication to be drawn from the matters pleaded by the plaintiffs is as he contends. The implication sought to be drawn by the plaintiffs rests substantially on the contents of the budget. A denial of the representation leaves it open for Mr Bennett to argue that the implication that ought to be drawn from the document is not that alleged by the plaintiffs but some other inference - the denial necessarily carries with it the assertion that other inferences may be drawn from the document than those alleged by the plaintiffs and that the document does not contain, by implication, the representation alleged by the plaintiffs because of those other inferences.

30 I do not consider that the proposed amendment opens the possibility for further evidence beyond that which would be relevant on the present pleadings. The proposed amendment is confined to what implication is to be drawn from the contents of the document and what transpired at the meeting. Accordingly, I do not consider that it would be prejudicial to the plaintiffs to allow Mr Bennett's defence to be amended to incorporate the allegations proposed in par 5.5 of the minute nor that such an amendment will disrupt the listing of the action for trial.

31 The next amendment sought to be made by Mr Bennett is to par 12 of the defence. The amendment is to add the words 'as it in fact did'. In the course of argument, counsel for Mr Bennett confirmed that the purpose of the amendment was to allege no more than that from 28 September 2000 Cityfield Holdings ceased funding ITC. So understood, the effect of the amendment is to plead a matter that is not contentious (and indeed, forms a central part of the plaintiffs' case). Accordingly, there can be no prejudice in allowing the amendment.

32 The next amendment that is proposed is to par 15 of his defence. Paragraph 15 of the defence pleads to the plaintiffs' allegations that Mr Bennett engaged in conduct that was misleading or deceptive by making the representations alleged in pars 3, 5 and 6 of the statement of claim. The present defence merely denies each of the matters relied on to allege misleading or deceptive conduct.

33 The proposed amendment seeks to plead that Cityfield Holdings ceased funding the business of ITC in circumstances where ITC had generated no income by 28 September 2000 and by reason of the matters pleaded in the amendments that are proposed to par 24 of the defence. It is convenient to return to the proposed amendments to par 15 after considering the amendments to par 24 of the defence. However, it should be noted that the particulars that are proposed to the amendments to par 15 refer to the financial records of ITC. Those records have already been discovered. It appears that the plaintiffs' claimed loss and damage is entirely or almost entirely expectation loss and damage. Nevertheless, it is difficult to see how the actual financial performance of ITC would not be relevant to the assessment of damages in a claim for misleading or deceptive conduct.

34 Paragraph 24 of the defence pleads a further answer to the allegations made in pars 18 to 24 of the statement of claim. Those paragraphs plead the plaintiffs' alternative claim for breach of contract. The allegations made in those paragraphs are denied. As presently pleaded, par 24 of the defence alleges that if Mr Soia entered into any contract, then it was with ITC and not Mr Bennett. Other allegations are made about the appointment of an administrator to ITC and the company's administration.

35 A number of additional matters are now sought to be pleaded.

36 First, the proposed amendments allege that if any agreement is found to the effect that Mr Bennett was obliged to fund the development of the business of ITC, including providing for the payment of management fees to Mr Soia, such an agreement:

(a) was made between Mr Bennett and/or Cityfield Holdings on the one hand, and ITC on the other hand, and not between Mr Soia and Mr Bennett;

(b) included terms or conditions to the effect that the funding of ITC's costs was subject to ITC generating the income projected in the budget and, in any event, the income of ITC covering its costs on an ongoing basis; and

(c) contained a further term that Mr Soia and Mr Bennett co-operate 'at a reasonable level' in running the business of ITC.

37 The effect of the amendments is to plead additional terms to the contract alleged by the plaintiffs. The particulars to the allegations refer to the budget and a document entitled 'Corporate Structure' which is a document already referred to in par 6(a) of the statement of claim.

38 I consider that the plaintiffs are not prejudiced by the proposed amendments to allege additional terms to the contract that they have pleaded. The terms are sought to be implied by reference to matters that are in issue on the current pleadings. By the proposed amendments, the defendant seeks to draw different and additional implications from those matters to what is alleged by the plaintiff.

39 I should add that as I read par 24.2.2(c) of the proposed amendment, the term that is sought to be implied rests partly, although not entirely, on matters of law - that is, the obligation that is implied into every contract that the parties will co-operate so that each of them will have the benefit of their bargain - and partly on the circumstances in which the parties joined to form what is pleaded in the statement of claim as being a corporate joint venture.

40 Paragraph 24.3 of the minute also repeats the allegation that ITC had not generated any income by 28 September 2000. As I have indicated, the plaintiffs claim expectation damages but it is difficult to see how the actual financial performance of ITC is not a relevant matter on the pleadings as they presently stand. I also note that the documents to which I have been taken in the course of argument on the application indicated that the financial position of ITC during 1999 and 2000 is at the heart of the litigation and that Mr Soia's witness statement includes draft financial statements for ITC which he says have been discovered by Mr Bennett but which he has not previously seen. He states that he disputes matters recorded in the loan accounts forming part of those statements but there does not appear to be any issue taken with whatever is stated in the draft financial statements concerning the income of ITC.

41 I do not consider that the proposed amendments to pars 15 and 24 of Mr Bennett's defence to allege that no income was generated by ITC by 28 September 2000 are prejudicial to the plaintiffs or will impede the matter proceeding to trial as listed.

42 Paragraph 24.4 of the minute pleads a communication made by Mr Soia to the defendant on 30 August 2000. A copy of the letter was annexed to the affidavit of Ms Onofaro (attachment 'TRO-6'). It is a long letter dealing with many matters but par 24.4.1 (both paragraphs bearing that number) confines the pleading to certain statements made in the letter.

43 Further, par 24.4 pleads the fact of the communication. Mr Bennett does not seek to provide the truth of any of the matters alleged in the pleading. His case, as pleaded in par 24.4, read with par 24.5 of the minute, is that the making of the statements identified in par 24.4 manifested and reflected a breakdown in the level of reasonable cooperation between himself and Mr Soia.

44 He further alleges in par 24.6 of the minute that he was entitled to terminate the joint venture by reason of the fact of Mr Soia communicating the matters pleaded in par 24.4. In effect, the case being set up is that Mr Soia, as the person running the business of ITC, told Mr Bennett certain things, as a result of which Mr Bennett was entitled to terminate his further participation in ITC and its funding by his company. It is not the truth of what was stated that is said to justify termination. Rather, Mr Bennett was entitled to terminate simply because of what he was told and by whom.

45 Mr Soia refers to and produces the letter of 30 August 2000 at par 184 of his witness statement. There is, in my view, no prejudice caused by the proposed amendment to par 24.4 given the explanation by Mr Bennett's counsel of the matters sought to be alleged in that paragraph.

46 Paragraphs 24.5 and 24.6 of the minute merely plead the consequences of the matters alleged in pars 24.3 and 24.4.

47 Paragraph 24.7 of the minute pleads matters concerning the funds that Mr Bennett alleges he provided to the business of ITC. The extent to which Mr Bennett funded ITC is a central issue in the litigation. The pleading raises new factual allegations on which the court will be required to make findings but about a matter that is critical to the plaintiffs' case and about which I assume that there has been discovery. Mr Soia's witness statement deals extensively with the funding of ITC.

48 I accept that the allegations pleaded in pars 24.4 to 24.7 raise new matters: whether there were additional terms to the contract alleged by the plaintiffs; whether the matters pleaded in par 24.4 manifested a breakdown in any reasonable level of co-operation between Mr Bennett and Mr Soia; whether those matters entitled Mr Bennett to cease funding ITC; and additional facts about the level of ITC's funding by Mr Bennett. However, the additional matters are of narrow compass: whether an implication can be drawn from matters that are already in issue; the consequences of statements made in Mr Soia's letter of 30 August 2000 and the level of funding of ITC. I do not consider that the plaintiffs are prejudiced by the amendments or that they will delay the trial of the action.

49 It follows that I also consider that the amendments proposed to par 15 of the defence which rely on par 24 of the minute, will not prejudice the plaintiffs nor delay the trial of the action.

50 There remains the proposed amendment that raises a limitation defence to that part of the plaintiffs' claim that seeks damages for misleading or deceptive conduct. Counsel for the plaintiffs properly concedes that there is no prejudice to the plaintiffs by allowing the amendment in the sense that they do not introduce new facts and there is no evidence that the plaintiffs would seek to adduce in answer to the matters alleged. I also note that the affidavit sworn by Mr Galic in opposition to the application to amend made no reference to the possibility that the plaintiffs would not have proceeded with their claim for misleading or deceptive conduct if the limitation defence had been pleaded when the defence was first filed.

51 Nevertheless, I have been troubled by this amendment. It is the kind of defence that ought to have been pleaded early so that the plaintiffs were put on notice that it was being raised and that there was a risk to them in maintaining a claim for misleading or deceptive conduct. There is no reason why the defence could not have been pleaded at the outset. I will return to the proposed amendment later in these reasons.

The discretion to grant leave to amend and Aon

52 Order 21 of the Rules of the Supreme Court 1971 concerns the amendment of pleadings. Order 21 r 3 was altered in July 2010 to effect a significant change in the procedure relating to amendments. A party may now amend a pleading without the leave of the court at any time up to seven weeks prior to the commencement of the trial.

53 In my view, O 21 r 3 indicates that the court's supervision over the amendments of pleadings is now primarily concerned with questions of case management in the period shortly prior to and at trial. In that regard, the rule reflects the observations of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 that there is a public interest in the efficient allocation of judicial resources which is a significant factor in the exercise of the court's discretion to grant leave to amend.

54 Order 21 r 5 provides that a pleading may be amended at any stage of the proceedings with the leave of the court. Unlike the rules relating to amendment in some other jurisdictions, O 21 r 5 does not describe the purpose for which the discretion to allow an amendment is to be exercised. However, the principles relating to an amendment are well established. As with all interlocutory discretions, the question of whether leave to permit an amendment should be allowed is ultimately one of doing justice as between the parties in all of the circumstances, having regard to the public interest in efficient case management and the proper allocation of the court's resources.

55 I very briefly summarised matters relevant to the history of the proceedings at the commencement of these reasons when identifying the grounds on which the application to amend was opposed.

56 Mr Bennett's application was made by summons dated 14 February 2011; that is, four weeks from the date that the trial is listed to commence. Orders were made for the conduct of the trial by Le Miere J on 18 January 2011 (see the affidavit of Mr Ebbs at par 12). On 4 February 2011, counsel advised that 'steps should be taken to amplify and amend the defence (pars 18 and 19 of Mr Ebbs' affidavit). The plaintiffs' solicitors were advised of Mr Bennett's intention to amend on 8 February and a minute was provided to Mr Galic on 11 February (pars 22 and 23 of Mr Ebbs' affidavit). The minute has been further refined since that time.

57 The plaintiffs understandably referred the court to the observations of the High Court in Aon. It was said that the circumstances of this application closely resembled those considered by the High Court in Aon given the proximity of the trial of the plaintiffs' action.

58 In Aon, French CJ emphasised that historically a distinction was drawn between an amendment made prior to trial for the purpose of identifying and determining the real issues in controversy between the parties and an amendment sought to be made at trial for the purpose of setting up a new case - see at [14] and footnote 36.

59 That distinction, of course, had particular significance in the circumstances of Aon. However, it would plainly be a mistake to read the Chief Justice's judgment and, more particularly, the reasons of the plurality in Aon as being solely concerned with amendments sought to be made at the commencement of the trial and which may have the effect, if allowed, of requiring the trial to be vacated in fairness to the other party.

60 The observations of the plurality were clearly cast more widely. I accept that Aon served to remind courts and litigants and their legal advisers that the public interest in the efficient allocation of judicial resources and the access of other litigants to those resources are relevant and important factors to be considered in determining whether to grant a party leave to amend its pleadings, especially when the litigation has progressed some distance through the interlocutory stages - see, in particular, at [90], [93] - [96], [98] and [111] - [113].

61 I also accept that the plurality were sceptical about the proposition that an award of costs is a panacea for the prejudice caused by late amendments: first, an order for costs thrown away does not address the public interest; and second, it will not always compensate the other party in a way that does justice as between the parties.

62 It is, in my view, nevertheless relevant to consider the extent to which any proposed amendment will expand the issues to be litigated at trial. That is consistent with the reasoning in Aon and an approach that has been adopted in this court since the High Court's decision in that case.

63 For example, in Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156, a respondent was permitted to amend her defence five days prior to the commencement of the trial. At [15] of their reasons, McLure and Newnes JJA noted that the primary judge concluded that none of the amendments that were proposed were objectionable and that 'to the extent that there was an issue as to whether the proposed pleas disclosed an arguable ground of defence or cause of action by way of counterclaim that could be resolved at trial'. They further noted that the primary judge concluded that the amendments did not, in any material way, extend the ambit of the action.

64 One of the grounds of appeal relied on by the applicant was that the primary judge had failed to properly apply the principles set out in Aon and that he had accepted an irregular and deficient explanation for the late application to amend.

The primary judge found that the proposed amendments did not extend in any material way the factual ambit of the action. His Honour noted that they depended upon material already pleaded, or contained in witness statements previously served or documents already included in the trial bundle. His Honour also found that the proposed amendments were sufficiently pleaded and that any problems of the kind alleged by Permanent Mortgages could properly be left to be dealt with at the trial. We are not persuaded that his Honour erred in making those findings.

66 Their Honours further observed that the primary judge specifically addressed the adequacy of an affidavit sworn in support of the application to amend. They commented:

In assessing the adequacy of the explanation provided in the affidavit, his Honour plainly took into account, as in our view he was entitled to do, the significance of the amendments for the conduct of the trial: see Aon [103].

67 Their Honours further noted that the primary judge found that the amendments were not of such a nature that, if allowed, the plaintiff would be prejudiced in the conduct of the trial, noting that the respondent had not adduced evidence to suggest that there was further evidence that she considered would be necessary in light of the amendments.

68 All of those observations appear to me to be particularly apt for the determination of this application. I do not consider that the proposed amendments materially expand the issues to be determined at trial for the reasons that I have already given. Accordingly, I do not consider that:

(b) there is further evidence that the plaintiffs could seek in the light of the amendments and which they will be denied a proper opportunity to obtain if the amendments are allowed; and

69 Accordingly, I do not consider that granting leave to amend is inconsistent with the reasoning in Aon and the concerns identified by the High Court in that case.

70 There remains the question of Mr Bennett's explanation for the delay in making the amendments. The explanation is no more than that in early February 2011, he chose to engage new counsel who advised that the amendments should be made, no doubt with the benefit of a fresh mind.

71 A party's decision to change counsel cannot, by itself, be the means by which to secure an indulgence in relation to amending pleadings. However, the plurality in Aon identified two reasons for requiring an explanation for delay: to establish that the application is made in good faith and so that the court has before it all of the circumstances relevant to the application [103].

72 It was contended by the plaintiffs that the decision to engage new counsel was a tactical ploy done in bad faith by Mr Bennett. There are some curious aspects of the comings and goings of Mr Chenu as disclosed in the affidavit material, however I am not prepared to impute bad faith on the part of Mr Bennett.

73 First, the sequence of events was that Dr Schoombee was engaged and then he advised that the amendments should be made. That sequence is inconsistent with manoeuvring over the forthcoming trial through changes in counsel and applications to amend.

74 Second, the scope and nature of the amendments sought do not support an assertion of bad faith. The amendments are largely to further clarify Mr Bennett's case. They are not the kind of amendments that might have been made simply to delay the trial or to derive some other improper advantage nor is there any evidence that the amendments were deliberately deferred in the hope of forcing the plaintiffs to proceed to trial on an ill-prepared basis. Consequently, I do not consider that the amendments should be refused on the grounds of delay.

75 Reference was made, in argument, to the plaintiffs' application to amend that was refused by Master Sanderson. The expression 'what is good for the goose is good for the gander' can sometimes capture the basis upon which justice is to be done between parties. However, every interlocutory application must be determined on its merits and the sentiments expressed in the phrase may often reflect an emotive rather than reasoned response to an application. I do not consider the fate of the plaintiffs' earlier application to be relevant to the determination of this application.

76 Finally, the amendment to plead a limitation defence stands on a different footing to the other amendments. After careful consideration, I have decided that the amendment should be allowed. It concerns only part of the plaintiffs' case. If it succeeds, there will be significant costs thrown away that will substantially compensate the plaintiffs for the fact that the amendment is made late.

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