Australian National Maritime Museum v VDM

LEGISLATION CITED : Court Procedures Act 2004 (ACT) Uniform Civil Procedure Act 2005 (NSW)

CASES CITED : Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Westpoint Management Ltd (Receivers and Managers Appointed) (in Liquidation) & Anor v QBE Insurance (Australia) Ltd [2009] NSWSC 989

PARTIES : Australian National Maritime Museum (Plaintiff) VDM (WA) Pty Limited (Defendant)

COUNSEL : Mr P Taylor SC, Mr S Blount (Plaintiff) Mr J B Simpkins SC, Mr S A Goodman (Defendant)

SOLICITORS : Australian Government Solicitor (Plaintiff) Wotton & Kearney (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

55088/06 Australian National Maritime Museum v VDM (WA) Pty Limited

JUDGMENT The defendant's application 1 There is before the Court an application by the defendant to amend its technology and construction list response. The new pleading would involve a mitigation claim. 2 The application is opposed by the plaintiff. 3 There is no issue but that the application to amend is made extremely late that: is to say, during the morning of the first day of the final hearing. 4 The defendant contends that notwithstanding this circumstance, the principled the exercise of the Court's discretion is to allow the amendment for a particular reason. This is because one of the defendant's experts [Mr Seward] had provided an expert report in October 2008, which report [in paragraph 2.2] expressed the view that there were a number of simple and cost-effective ways by which the pontoon performance could have been improved, and then purporting to identify those steps. The defendant then draws attention to the fact that in a responsive report of March 2009, the plaintiff's expert [Mr Smith] inter alia addressed Mr Sewards observations. 5 Hence the defendant contends that the matter was already live as between the parties and that the plaintiff's now submissions that it cannot be expected on the run to deal with the new application, should be rejected 6 The evidence before the Court from the plaintiff is that reasonably soon after receiving the proposed amended pleading from the defendant [in fact three days after receiving that proposed amended pleading] the plaintiff notified the defendant's solicitors that it did not consent to the amendments and that should the defendant intend to proceed with those amendments, the plaintiff would need to rely upon further evidence and may need to engage additional experts to prepare reports. The same letter advised that it would not be possible for the plaintiff to respond to the allegations set out in the proposed amendment prior to the hearing. Finally the plaintiff requested that if the defendant intended to proceed with its proposed amendment, it make application to the court forthwith. 7 The defendant's response indicated surprise at the plaintiff's refusal to consent to the proposed amendments, and drew the plaintiff's attention to the above-described reports, suggesting that the amendment did no more than to bring the defence into line with the evidence of both parties. In the same letter the defendant's solicitors requested that if the plaintiff continue to object to the proposed amendment, it identify, with precision, the type of evidence required by the plaintiff to meet the amendment, along with an estimation of the time it would take the plaintiff to obtain that evidence. 8 The plaintiff's solicitors' response of 16 September 2009 across some six pages of requests for further particulars of the defendant's proposed amendment, seems to me in all respects to have been a perfectly justified response and request. The particulars have not been supplied. 9 Two days later, that is to say on 18 September, the plaintiff's solicitors again corresponded with the defendant's solicitors, having apparently been informed that the defendant was still considering whether to make an application to amend its pleadings. And here again, the plaintiff confirmed that it did not consent to the amendments and requested that the application if it was to be made, be made forthwith. It again made clear that should the application be made and leave be granted to file the amended pleading, it was likely that the proceedings would not be able to proceed in September, as the issues set out in the amended response could not properly be ventilated at that stage. 10 The matter was also ventilated before the Court at the pre-trial directions hearing held last week. The plaintiff again drew the attention of the Court to its anxiety about this issue. The Court made clear that unless and until an application was:

(b) ruled upon in the defendant's favour, it would seem that the plaintiff had no need to be concerned. 11 Naturally in relation to the forensic world commonly encountered, the parties would know that by definition an application for leave to amend a pleading should be before the court at the earliest practicable time. In Westpoint Management Ltd (Receivers and Managers Appointed) (in Liquidation) & Anor v QBE Insurance (Australia) Ltd [2009] NSWSC 989 the Court drew attention to the significance of the proximity of the hearing in terms of the limited capacity of the court case management in his [referring in particular to Part 6 Case Management and Interlocutory matters in the Uniform Civil Procedure Act 2005 (NSW) and to the bracket of section is beginning at s 56 and running through to and including s 58]. 12 In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 [at [90] - [93]], the High Court of Australia made the following observations:

The overriding purpose of [the material section] to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia , although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms.

In submissions before Gray J, Aon relied upon a decision of the New South Wales Court of Appeal which distinguished J L Holdings on the basis of later provisions of the Civil Procedure Act 2005 (NSW). His Honour did not consider those provisions to be comparable with the Court Procedures Rules and the Act under which they were made, the Court Procedures Act 2004 (ACT). No issue is taken concerning that aspect of his Honour's decision. The importance of r 21 to an application for leave to amend is to be determined by reference to its own terms.

The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process . In its report in 2000, Managing Justice: A review of the federal civil justice system , the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation" .

Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected : "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...". 13 During argument on the defendant's application Mr Taylor relied upon the affidavit of Roshana Wikramanayake of 22 September 2009 in which she deposed inter alia as follows: 9. At about 3.30pm Friday 18 September 2009 a letter was received in my office by facsimile from Messrs Wotton Kearney enclosing a supplementary report of Mr Seward dated 17 September 2009. At the time the facsimile was received in my office, the experts engaged by the Plaintiff and the Defendant were meeting at the offices of Wotton Kearney. Annexed and marked " F " is a copy of the letter dated 18 September 2009 together with the report of Mr Seward.

10. On Monday 21 September 2009 I contacted Dr Peter Georgiou, one of the experts engaged on behalf of the Plaintiff. I said to Dr Georgiou words to the following effect: "We received a report of Dr Seward dated 17 September 2009 by facsimile late on Friday 18 September 2009. Was that provided to you on 18 September 2009 at the meeting of experts?"

Dr Georgiou said words to the following effect: "No, that report was not provided to us and it was not mentioned to us last Friday".

I said to Dr Georgiou words to the following effect: "I will need to send that report to you today. I will need to get you to look at the report and let me know how long it will take for you to respond to that report." 11. I sent the report of Mr Seward dated 17 September 2009 together with the Amended Technology and Construction List Response to Dr Georgiou on 18 September 2009.

12. At about 6.35pm on 21 September 2009 Dr Georgiou telephoned me. He said to me words to the following effect: "It would take me at least two (2) full days to prepare a response to the report of Mr Seward. The report deals largely with matters raised in my report of March 2009 and is extensive. There are issues in the report of Mr Seward which I do need to address. The suggestions made in the Amended Response are complex and would need sophisticated analysis to advise whether those suggestions may have assisted. This would include obtaining modelling which would take considerable time, possibly several weeks. That is not really my area and would require assistance from Mr Miller." 13. On 18 September 2009 I telephoned Mr Kevin Smith, one of the experts engaged on behalf of the Plaintiff. I said words to the following effect: "We received a report of Mr Seward dated 17 September 2009 late last Friday. We will need to send the report to you. We would like you to tell us how long you would need to respond to the report. We have also received an Amended Response with suggestions as to other alternatives which could have been considered regarding the pontoon. We will need to get your response in relation to that document too."

Mr Smith said to me words to the following effect: "I have just got back from leave today. As you know I was away last week. I am very busy with other matters. I have a number of meetings and will not be able to even look at the documents until late on Tuesday 22 September. I cannot tell you how long I will need to respond until I have been able to look at the documents properly". 14. On 18 September 2009 I sent the report of Mr Seward dated 17 September 2009 and the Amended Technology and Construction List Response to Mr Smith. I have not received a reply from Mr Smith.

15. On 21 September 2009 I telephoned Mr Brett Miller, one of the experts engaged on behalf of the Plaintiff. I said to Mr Miller words to the following effect: "We received a report of Mr Seward dated 17 September 2009 late on Friday 18 September 2009. I understand that you were not provided with that report at the experts' meeting last Friday. Is that correct?"

Mr Miller said to me: "Yes, that's correct".

I said to Mr Miller: "We will need to send that report to you. Would you please let me know how long it would take you to respond to that report. I will also send you an Amended Response which the Defendant wants to file with suggestions as to alternatives which could have been considered in relation to the pontoon. We will need to get your response to that document too."

Mr Miller said to me words to the following effect: "Send the documents to me. I will try to get back to you today."

16. On 21 September 2009 I sent the report of Mr Seward dated 17 September 2009 and the Amended Technology and Construction List Response to Mr Miller.

17. At about 5.50pm on 21 September 2009 Mr Miller telephoned me. He said words to the following effect: "I have had a quick look at the documents you sent me. I need to look at them properly. I have a meeting tomorrow morning. I will not be able to look at the documents properly until late tomorrow afternoon. I think I will probably need to respond point by point to parts of Mr Seward's report. I cannot give you any estimate at present as to how long it would take me to respond. I cannot tell you how long it would take me to respond to the Amended Response". 18. On Friday 18 September 2009 a meeting took place between two (2) of the Plaintiff's experts, Dr Georgiou and Mr Miller, and two (2) of the Defendant's experts, Mr Seward and Mr Bunker. Prior to the meeting of experts there had been correspondence between the solicitors as to the issues to be discussed at that meeting. I am informed by Ms Buchanan, another solicitor in my office, and verily believe, that she spoke to Mr Buttigieg on Friday 18 September 2009. I am informed by Ms Buchanan and verily believe that Mr Buttigieg told Ms Buchanan that he had prepared a schedule containing a list of issues to be discussed between the experts on Friday 18 September 2009 and that Dr Georgiou had been requested to correspond with the other experts who attended the meeting for the purpose of completing a schedule setting out the issues upon which the experts agreed or disagreed.

19. I do not know whether any of the issues set out in the report of Mr Seward dated 17 September 2009 were discussed at the meeting of experts on 18 September 2009.

20. Should the defendant be granted leave to rely upon the report of Mr Seward dated 17 September 2009, in order to properly deal with that report, I would need to confer with counsel, seek proper instructions in relation to the report and engage the plaintiff's experts to prepare responses to the report. I believe the plaintiff will not be able to properly prepare material in response to the report of Mr Seward before 29 September 2009. 21. Should this Honourable Court be minded to allow the plaintiff to rely upon the Amended Response, I would need to confer with counsel, obtain proper instructions in relation to the Response, and engage the Plaintiff's experts to prepare reports in relation to that Response. I do not believe that the Plaintiff would be able to properly prepare material to meet the Amended Response prior to 29 September 2009. 14 During argument Mr Taylor SC made a number of submissions of substance, generally in support of the proposition that his client had not had a proper opportunity to understand or to obtain proper advice on each of these matters which had never before been pleaded. His proposition was that whilst, at first blush, some of the matters to be relied upon by the defendant might appear to be easy to understand, in truth and as a matter of fundamental fairness in the conduct of litigation, the plain fact is that the plaintiff cannot meet the proposed amendments on the run. 15 I accept those submissions as of substance. There is a world of difference between on the one hand a short exchange between expert witnesses of the points of view of one another found in a discreet section of an expert's report, and on the other hand, the approach necessary to be taken where pleadings are concerned. 16 The principled approach to the application is that it be rejected, reserving leave to the defendant to renew the application should some other new event in the continuance of the litigation make such an application appropriate. *********

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