8 The disputed paragraph 55 does not expressly assert that the entry into the 2007 consent orders was an admission, but that is the effect of the pleading. If the plaintiffs can establish that the complaints and allegations of the defendants were without substance they do not need to rely on the entry by the defendants into the 2007 consent orders and paragraph 55 is quite unnecessary, as Mr Grieve's submissions that I have set out above seem to recognise. If the paragraph does add anything it can only be that the entry into the 2007 consent orders is a form of admission.
9 No argument was advanced that the obligation imposed on the plaintiffs, by the express terms of the 2009 consent orders, was any less onerous than those imposed on the defendants.
10 The fact that the plaintiffs' counsel has erroneously asserted that the consequence of a particular pleading being pursued would be that counsel and solicitor could not act in the matter (if indeed that was an erroneous assertion) and the consequences which flowed from that are not expunged merely because subsequently a different view has been taken.
11 In my view the plaintiffs are precluded from relying on paragraph 55 by virtue of the agreement contained in the 2009 consent orders first because what is pleaded is to the effect that the entry into the 2007 consent orders is an admission, and second because as a matter of construction I think it was intended by the parties that all claims by either side based on the 2007 consent orders were to be excluded from the proceedings. For these reasons leave to amend should be refused.
12 Mr Pesman maintained an alternate argument to the effect that the failure of the plaintiffs to articulate the current form of pleading has caused a prejudice to the defendants. The prejudice he asserted is that had the plaintiffs articulated the current form of pleading in June this year it would have lead to the defendants being granted leave to file their proposed cross claim. That is one way of viewing the matter but another is that if the present articulation had been presented in the 3FASOC then the 2009 consent orders would, in all likelihood, have been framed to exclude any reliance by the plaintiffs on it. I think the defendants were, in April this year, entitled to assume the only claims which the plaintiffs wanted to advance in respect of the 2007 consent orders was in the form detailed in paragraphs 74A - 74D of the 3FASOC.
13 The Civil Procedure Act 2005, by ss 56 - 61 has laid emphasis upon the importance of the Court, in deciding whether to make orders in relation to the amendment of a document (inter alia), acting in accordance with the dictates of justice which requires consideration of the provisions of ss 56 and 57 of the Act, and see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [97] - [103], Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 and Zisis v Knighton [2008] NSWCA 42.
14 The interests of justice do not require the plaintiffs be permitted to now plead a case that, even if not expressly caught by the agreement in the 2009 consent orders, is so closely allied to a case that they have specifically abandoned in return for consideration provided by the defendants. This view is reinforced by the reliance on the 2009 consent orders by the plaintiffs to block the cross claim advanced by the defendants and the fact that the Statement of Claim was already, in April this year, in its fourth iteration.
15 Accordingly it follows that leave should be granted only for the filing of the 4FASOC without the underlined words in paragraph 55 (see [1]) and it follows that the second and third defendants have been successful in resisting the filing of the 4FASOC in its present form and that the plaintiffs should pay their costs of the motion.