13 Section 37M(1) of the FCA Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
14 In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the plurality emphasised that while the just resolution of proceedings remains the paramount objective of case management, resolving proceedings with the minimum expense and delay is an essential component of the just resolution of proceedings. In the context of a consideration of Rule 21 of the Court Procedures Rules 2006 (ACT) their Honours said:
[98] …Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
…
[102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
[103] … Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
15 Of course, the High Court was not concerned in that case with an application to amend made after the evidence had closed. Such an application raises additional considerations. It is necessary for the Court to consider, among other things, whether the party resisting a proposed amendment made at that late stage might not be prejudiced as a consequence of having conducted the trial in a particular manner in reliance upon the existing pleadings. The possibility of such prejudice occurring is an important factor in determining the broader question of whether it is in the interests of justice to allow the amendment to be made at such a late stage in the proceeding.
16 As to the issue of delay, the application to amend appears to have been prompted by some questions asked by me of Mr White SC during his closing submissions for the ACCC. I drew attention to the possibility that the relevant scheme might not be the TVI Team Oz Scheme as defined in the Amended Statement of Claim but the TVI Express System pleaded in paragraphs 2 to 15 of the Amended Statement of Claim.
17 Mr White informed me that the failure to plead that the TVI Express System is a pyramid selling scheme arose out of a reluctance to plead a case to the effect that the TVI Express System is itself a pyramid selling scheme in circumstances where it was unclear which overseas entity was behind that scheme. He said "that it was thought that given the overseas entity was unknown or couldn't be located, it may not be appropriate to plead the case in that way."
18 The fact that the ACCC might not know who is behind the TVI Express System does not prevent it from pleading a case to the effect that the TVI Express System is a pyramid selling scheme. And the fact that there is some uncertainty as to the identity of the persons who are behind the scheme does not prevent the ACCC from pleading a case against those persons who are known to have participated in the scheme.
19 It therefore seems that the failure of the ACCC to plead that the TVI Express System was a pyramid selling scheme was based upon a misapprehension. It is regrettable that it has come to light so late; however, I am satisfied that the application to amend is made in good faith. Even so, I am only prepared to allow the proposed amendments if I am satisfied that there is no risk of prejudice to the respondents if the leave sought is granted. I will return to that question shortly.
20 If the TVI Express System is not a pyramid selling scheme then I do not see how the TVI Team Oz Scheme could be a pyramid selling scheme. Conversely, if the TVI Team Oz Scheme is a pyramid selling scheme, then it seems to me that the TVI Express System must also be a pyramid selling scheme. Thus, a key issue in the case (though not explicitly pleaded) is whether the TVI Express System is a pyramid selling scheme. It is conceivable, I acknowledge, that the TVI Express System could be a pyramid selling scheme even though the TVI Team Oz Scheme is not. But whether that is so really depends on where the boundaries of the relevant scheme are to be found.
21 On the question of prejudice, a matter emphasised by the applicants in support of their opposition to the proposed amendment was that they are not legally represented. It is true that the respondents are appearing for themselves. The circumstances in which the counsel and solicitors who appeared for them until shortly before the commencement of the hearing ceased to act for the respondents are referred to in my earlier judgment (see Australian Competition & Consumer Commission v Jutsen [2010] FCA 961). Any suggestion that the respondents are self-represented because they cannot afford to be legally represented is not supported by any evidence and is contrary to a number of matters that were put to me previously and which are touched upon in the earlier judgment. Still, the fact that the applicants are self-represented is a matter that I have taken into account. But I do not think it is a factor that should receive significant weight when considering whether or not the ACCC's application to amend should be allowed.
22 The respondents also referred to the fact that they have conducted the case up until now on a particular basis which they say was shaped by the existing pleadings. The respondents have called one witness who is a member of the TVI Express System. There is no suggestion that she would not have been called by the respondents if they had known at the time that the ACCC would allege, in the alternative, that the TVI Express System was a pyramid selling scheme. Nor is there any suggestion that her evidence would have been materially different. None of the respondents has given evidence. There is no suggestion that any of them would have done so if the ACCC had brought its proposed amendments forward at some earlier point in time.
23 I invited the respondents to explain to me in what respects they say their case would have been conducted differently if the proposed amendments had been brought forward earlier. They did not have anything specific to say in answer to that question. I have considered how the state of the pleadings might have affected the way in which the respondents have conducted the case. I am not satisfied that the respondents' case would have been conducted any differently if the proposed amendments had been made at some earlier point in time.
24 The respondents told me that they would require an adjournment of four months to enable them to meet the case the subject of the proposed amendments. If there was any reason to believe that an extensive adjournment was necessary to enable the respondents to meet the alternative way in which the ACCC wishes to put its case then I would refuse the amendment. However, the factual underpinnings of the new case are precisely the same as those of the existing case and the relevant facts are already pleaded in the Amended Statement of Claim. Whether the TVI Express System is a pyramid selling scheme is, adopting the language of O13 r 2(2), a "real question raised by the proceeding". There is no need or justification for a lengthy adjournment to enable the respondents to meet the new case.
25 I am satisfied that the respondents will not suffer any prejudice or unfairness if the proposed amendments are allowed. There is also a public interest to be considered in this case. If the scheme is defined to encompass the TVI Express System as a whole (as opposed to some sub-system thereof) and it is indeed a pyramid selling scheme within the meaning of the relevant statutory provisions then it would be in the public interest for me to make a clear finding to that effect. In my opinion the ACCC should be allowed to put as part of its pleaded case that the TVI Express System is a pyramid selling scheme.
26 I propose to grant the ACCC the leave it has sought. The ACCC should pay the respondents' costs of and incidental to the amendment application which are to include the costs of the additional hearing time that has been taken up by the consideration of the proposed amendment.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.