Balnaves v Armellin [2012] ACTSC 52

3. It is, however, unnecessary to express a concluded view on that issue. The issue now falling for decision is whether the Master was right to refuse leave to amend the statement of claim.

4. The background is set out more fully in the Master's reasons, however it comes down to this. The plaintiff suffered an adverse outcome from a hysterectomy operation on 4 February 2005. The plaintiff turned out to have suffered a vesico-vaginal fistula.

5. At first, relying on a report of an apparently well qualified expert, Dr McMaster-Fay, the pleading particularised the negligence alleged as a failure to notice the condition or manage it post-operatively.

6. That conclusion seemed to suffer in consequence of cross-examination of Dr McMaster-Fay. As a result, the matter being adjourned in any event, the plaintiff sought a report from another expert, Professor Korda, no doubt hoping to advance the above case. However, Professor Korda's report criticised the use by the defendant of a technique called "blunt dissection" which, he said, carried with it a foreseeable risk of the adverse result suffered. It supported a case that to have used that technique was, in itself, negligent.

7. The amendments now proposed would add particulars of negligence embracing that case.

8. The defendant objected on the ground that this amendment, if made, would introduce a new cause of action after the limitation period had expired.

9. Rule 502 would not prohibit such an amendment but r 503 does restrict a grant of leave so to do. Those rules are:

(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.

(2) The court may give leave, or give a direction, on application by the party or on its own initiative.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave or a direction under this rule.

Note 2 Rule 6902 (Leave may be given on conditions) provides that, if the court gives leave under these rules, it may give the leave on the conditions it considers appropriate.

(3) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

(4) If there is a mistake in the name or identity of a party, the court must give leave for, or direct the making of, amendments necessary to correct the mistake, even if the effect of the amendments is to substitute another person as a party.

(5) This rule does not apply in relation to an amendment of an order.

Note See r 6906 (Mistakes in orders or court certificates) for amendment of orders.

(6) This rule is subject to rule 503 (Amendment - after limitation period).

(1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.

(2) The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if -

(a) the court considers it appropriate; and

(b) the court is satisfied that the mistake sought to be corrected -

(i) was a genuine mistake; and

(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.

(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if -

(a) the court considers it appropriate; and

(b) the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.

(4) The court may give leave to make an amendment to include a new cause of action only if -

(a) the court considers it appropriate; and

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving -

(a) the just resolution of the real issues in the proceedings; and

(b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(3) The parties to a civil proceeding must help the court to achieve the objectives.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example for r (4)

The court may dismiss a proceeding or make a costs order if a plaintiff fails to proceed as required by the rules in ch 2 or an order of the court.

Note 1 See esp div 2.14.2 (Failure to comply with rules or order).

Note 2 An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1"> 11. The first point taken by counsel for the plaintiff was that no new cause of action was asserted. Rather, pursuant to paragraph 43 of the statement of claim, it was and remained that:

the defendant was under a duty to the plaintiff to exercise all reasonable care and skill in and about the conduct of the surgery and her post-operative care.

12. All that is now to be changed is the allegation defining the breach of that duty.

13. That is, it is the particular of breach which, doubtless, raises a new case, but not, in my view, a new cause of action.

14. The second issue was whether, even if it was a new cause of action, it was not known to the plaintiff until Professor Korda reported, so that the limitation period ran from that event. That relied on s 16B of the Limitation Act 1985 (ACT):

(2) The cause of action is not maintainable if brought -

(a) if the injury is or includes a disease or disorder - 3 years or more after the day the person injured first knows -

(i) that the person has suffered an injury that is or includes a disease or disorder; and

(ii) that the injury is related to someone else's act or omission;

15. The third issue was whether, if all those issues were nevertheless found in favour of the defendant, leave should be granted, it being apparent that r 503(4) was satisfied.

16. I agree with the Master, for the reasons he states, that r 503(4) enabled a grant of leave if otherwise appropriate. I do not agree that the amendments raised a new cause of action. However, in any event, leave was required and the principles applicable are not materially different, though the raising of a new cause of action may add weight to a claim to resist such an amendment.

17. The recent High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ("Aon") endorses the proper approach to applications to amend pleadings. It makes clear that it is not merely the interests of the immediate parties to the litigation which must be considered. The Master, in my view, correctly identified the approach to be taken.

18. It is important to have regard to the delays and costs to other litigants that may be occasioned in consequence. It is a balancing exercise. Amendment will inevitably lead to some measure of cost and delay. As his Honour noted "The nature and importance of the amendment to the party applying cannot be overlooked".

19. His Honour also noted, in my view correctly, the comments of the plurality in Aon at paras 102 and 103. I set them out in full:

1. 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.
2. The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings (202). 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.

20. His Honour correctly identified the reason for the proposed amendment. The plaintiff's advisers had, not unreasonably, framed her case in conformity with Dr McMaster-Fay's opinion. That opinion did not identify any want of care or skill in the operation itself, even though the defendant's notes clearly stated that blunt dissection had been used as part of the operative technique. Rather, his opinion was that the post-operative care was, arguably, deficient. The case had been allotted two days at the joint request of the parties. That estimate was inadequate. The adjournment of and consequent delay in the matter had nothing to do with the current proposal to amend the pleadings.

21. The application to amend arises only because Dr McMaster-Fay's evidence did not support his hypothesis as well as might have been expected. As a result, following the adjournment of the matter after only the plaintiff and Dr McMaster-Fay had given evidence, the plaintiff's advisers sought a further opinion from Professor Korda who raised a new issue which, if he is right, favours the plaintiff's case quite strongly. The new issue is based on facts not in dispute. In that sense, it does not require re-examination of the factual circumstances surrounding the operation or its aftermath.

22. The Master considered that the defendant was prejudiced in that "the defendant has been deprived of the opportunity for cross-examination" on Professor Korda's report.

23. It is true that any expert retained by the defendant will need to be briefed with Professor Korda's report and either express a view on it or, perhaps, another expert may need to be retained. Either way the defendant will have ample opportunity to cross-examine Professor Korda, assuming he is called, or to have Dr McMaster-Fay recalled for further cross-examination if the defendant requests it.

24. It may, as the Master suggests, expand the estimate of time to complete the case from two to four days.

25. That does impact on other litigants and that must be considered. So too does the fact that the issue now raised challenges the professional competence of the defendant in a particular respect and that the case has been outstanding for almost five years.

26. As against that, the new issue raised is of considerable importance generally. It could impact favourably on the future treatment of women undergoing hysterectomy.

27. I do not accept, however, that, even so, there will be any significant further delay in finalising the matter.

28. It is clear that from the outset, the defendant was well aware of the adverse event complained of and that the issue was whether his operative technique or the post-operative care caused or contributed to that adverse event. I accept that he probably did not expect that his use of blunt dissection would be called into question.

29. It is true that the plaintiff, though not asserting a new cause of action, does assert a new case in that respect. If that change of direction had resulted in significant delay to the case, prejudicing other litigants significantly or in prejudice to the defendant as, for example, may have been the case had there been a factual issue as to whether blunt dissection had been employed, even the significant disadvantage to the plaintiff of not being able to mount a seriously arguable claim for compensation may not have overcome the presumption against permitting late amendment of a case otherwise embraced on sound legal advice and after reasonable consideration of the known facts.

30. Certainly the onus of persuasion is on the party seeking the amendment, but in this case, given the specific errors that I have identified and having considered the matter myself, I have concluded that the amendments should be permitted.

31. I will hear the parties as to costs and as to any consequential directions.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Appellant: Slater & Gordon Limited

Solicitor for the Respondent: Ken Cush & Associates