Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12

1 The applicant seeks leave to appeal the decision of a judge of the County Court dismissing his application for leave to file and serve an amended statement of claim.

2 The applicant's claim, in the County Court proceedings, arises out of an incident which occurred in the course of his employment with the respondent on 11 August 2015, as a consequence of which he alleges that he sustained a psychological injury. At the time of the incident the applicant was employed by the respondent as a business manager, having commenced his employment with the respondent in June 2011.

3 The incident occurred in the course of a conference convened by the respondent at the Novotel Forest Resort Creswick from 9 to 12 August 2015. On the evening of 11 August 2015, an awards dinner was held at the conference for all of those who attended. The respondent organised a 'Kylie Minogue' impersonator ('the impersonator'), with backing dancers and a band, to provide entertainment to the guests.

4 In the course of the evening, the impersonator called the applicant onto the stage on two occasions. On the second occasion, the applicant alleges that he was either coerced, or physically impelled, to return to the stage notwithstanding that he made it clear that he did not wish to do so. After he returned to the stage, the applicant was dressed in a costume over his business suit, and he danced and sang. In the proceeding, the applicant contends that, as a consequence of the stress and humiliation arising from that incident, he experienced significant symptoms of a mental disorder.

5 On 12 July 2017, the applicant made a serious injury application pursuant to s 328(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of psychological or psychiatric injuries sustained by him as a consequence of the incident on 11 August 2015. Subsequently, on 4 April 2018, the Victorian WorkCover Authority issued a certificate pursuant to s 335(2)(c) of the Act consenting to the commencement of proceedings by the applicant for damages for pain and suffering and loss of earning capacity. Those proceedings were issued by a writ filed in the County Court on 8 August 2015.

6 In the statement of claim endorsed on the writ, the applicant claimed that in the incident he was subjected to embarrassment and humiliation when being 'obligated to dress up dance and sing as part of the entertainment' at the conference, as a consequence of which he suffered nervous shock and psychological injury. In paragraphs 6 and 7 of the statement of claim, it was alleged that the applicant suffered those injuries as a consequence of the negligence of the respondent, or alternatively as a consequence of the breach by the respondent of its obligations to the applicant pursuant to its contract of employment with the applicant.

7 By its defence to the statement of claim, the respondent pleaded that on each of the two occasions on which the applicant performed on the stage with the impersonator, he did so voluntarily, and that on neither occasion was he directed or 'obligated' by the respondent to do so. The respondent further pleaded that it was not reasonably foreseeable that the applicant would suffer a recognised psychiatric illness as a consequence of those actions, and accordingly it denied that it owed a duty of care to the applicant. Further, if such a duty of care was engaged, the respondent denied that it breached that duty of care. In addition, it was alleged that the applicant's injuries were caused or contributed to by his contributory negligence.

The application to amend the statement of claim

8 The case was listed for trial by a jury in the County Court on 10 July 2019. In the meantime, on 28 June 2019, the applicant served on the respondent a proposed amended statement of claim. By that amended pleading, the applicant sought to add a cause of action for injury resulting from conduct by the employees of the respondent causing emotional distress, based on the principles in Wilkinson v Downton.[1] In that proposed amendment, the applicant also reformulated the claims in negligence and for breach of contract.

9 Subsequently, on 9 July 2019, the applicant served on the respondent a further proposed amended statement of claim ('PASC') in which the claims in negligence and for breach of contract were reformulated, and the proposed cause of action based on Wilkinson v Downton was omitted. Instead, for the first time, the applicant sought to claim damages for battery, and for the aiding and abetting of that battery, by the respondent's employees, for which, it was claimed, the respondent was vicariously liable.

10 Specifically, in paragraph 9 of the PASC, it was alleged that after the dance show, featuring the impersonator, commenced, the applicant was singled out by the impersonator to come on stage, which he did 'under a sense of compulsion'. In paragraph 10, it was alleged that the applicant sang a song on stage with the impersonator, and left the stage, advising two employees of the respondent that he did not wish to return to it. In paragraphs 11 and 12 it was pleaded that, about twenty to twenty five minutes later, the impersonator called for the applicant to return to the stage, but the applicant responded 'very negatively by both verbal and bodily action'. Paragraphs 13 to 17 of the proposed amendment then pleaded as follows:

1. Whilst the Plaintiff had his right arm outstretched as referred to in the preceding paragraph he was grabbed by the right forearm by the hands of several store managers and pulled towards the stage. At the same time he was pushed by 3 or 4 hands to his upper back also towards the stage ('the batteries'). The batteries constituted threatening behaviour.

PARTICULARS

The Plaintiff was pulled and pushed from the edge of the dance floor across it until he was about a metre from the edge of the stage adjacent to the dance floor. The Plaintiff does not recall and/or could not identify the store managers involved in the batteries but they were all employees of the Defendant.

The pulling and pushing on the Plaintiff constituting the batteries was with such force that had he struggled to free himself he believed there was a real risk of physical injury to himself or others in an ensuing confrontation and the batteries were thereby physically threatening to him.

1. For the duration of the batteries upon him, many other employees of the Defendant aided and abetted the batteries by cheering on the propulsion of the Plaintiff towards the stage under the force of the batteries.

PARTICULARS OF AIDING AND ABETTING

The cheering was in the form of woo-hoos and other such sounds of encouragement to those pulling and pushing the Plaintiff and constituted further threatening behaviour to the Plaintiff by emphasising he should not physically struggle against those propelling him to the stage.

1. The purpose of those engaged in the batteries and those aiding and abetting was to overbear the Plaintiff's will not to go on stage again and was to gratify the sense of entertainment those so behaving anticipated enjoying from seeing the Plaintiff on stage a second time.
2. By the time the Plaintiff was physically released close to the edge of the stage the Plaintiff was so intimidated by all the circumstances referred to in the preceding paragraphs that, against his will, he mounted the stage for a second time.
3. Whilst on the stage the second time the Plaintiff suffered embarrassing, humiliating and discriminatory behaviour conducted in front of his work colleagues that was offensive, abusive and belittling and amounted to harassment within the meaning of the contract of employment.

11 In the particulars to paragraph 17, the conduct was described as including: as the only male in the audience the applicant was discriminated against; the applicant was asked deeply personal and humiliating questions by the impersonator as to his marital status, as to the presence of his wife (the applicant being in a homosexual relationship) and as to whether he liked to wear leather hotpants; the applicant was directed to go backstage and be dressed by a female dancer in clothing which was humiliating and belittling, and he then returned to the stage where he was required to dance and sing.

12 In paragraph 18 of the PASC, it is pleaded that the harassment of the applicant, constituted by that conduct directed to him, was authorised and organised by the respondent. Paragraph 19 of the PASC then alleges:

1. The batteries and the aiding and abetting set out in paragraphs 13 and 14 and accompanying threats inflicted on the Plaintiff caused him to go on stage and be exposed to the harassment referred to in paragraph 17 and the Plaintiff thereby suffered severe psychiatric injury.

PARTICULARS OF INJURY

Panic disorder with agoraphobia;

Adjustment disorder with panic attacks and anxiety;

Adjustment disorder with depressed mood;

Mixed anxiety and depression;

Pain and shock.

13 In opposing the application by the applicant for leave to file and serve the proposed PASC, counsel for the respondent in a written submission focused on the form of the proposed pleading, contending that it involved an unpleaded cause of action in assault (as well as a pleaded cause of action in battery). It was also contended that the proposed pleading did not provide a basis for the respondent to be held vicariously liable for the acts of the unidentified employees of the respondent referred to in the PASC. In oral submissions, senior counsel for the respondent contended that the proposed pleading should be rejected, because it did not identify the employees of the respondent who, it was contended, were responsible for the batteries inflicted on the applicant. It was submitted, accordingly, that the respondent was prejudiced as a result of the delay in the amendment, because, some four years after the event, it was not possible for it to investigate the factual allegations, sought to be made on behalf of the applicant, that he had been subjected to batteries inflicted by employees of the respondent.

14 The judge, who heard the application, accepted the submissions made on behalf of the respondent. Her Honour ruled as follows:

To require the defendant to conduct further investigations of up to 160 persons comprising employees and non-employees in the circumstances where the plaintiff is unable to identify the persons who committed the alleged conduct is, in my view, onerous to the defendant.

It is the plaintiff who brings the claim and it is for the plaintiff to prove the claim. The plaintiff is required to particularise the conduct alleged. Although the plaintiff can give his evidence as to the conduct of the unidentified persons, the plaintiff must identify the persons so as to allow the defendant to properly investigate the allegations made by the plaintiff.

I am of the view that the defendant would be prejudiced if the plaintiff were allowed to amend his statement of claim at this stage of the proceeding. I propose to dismiss the plaintiff's application to seek leave to amend the statement of claim. As I have found that the plaintiff's application for leave to amend the statement of claim is dismissed, I am not required to consider whether the defendant is vicariously liable for the alleged conduct of the unidentified persons. In any event this is a matter for trial.

15 The applicant relies on some five grounds in support of its application for leave to appeal, namely:

1. The learned primary judge applied the wrong test for determining whether to grant leave to file and serve an amended statement of claim that seeks to raise new causes of action by regarding prejudice to the Respondent as being decisive.
2. Alternatively to ground 1, the learned primary judge failed to give adequate reasons; -

(a) by failing to set out the legal approach that was applied and in particular failing to address expressly or implicitly the objects set out in section 9(1) of the Civil Procedure Act 2010;

(b) by failing to precisely identify the prejudice found and explain how the proposed amendment was a cause of that prejudice;

(c) by failing to explain how each of the relevant considerations referred to in ground 5(a)-(d) were taken into account.

1. The learned primary judge was wrong to take into account as a prejudice to the Respondent the need for it to conduct further investigations of up to 160 persons comprising employees and non-employees in circumstances where the Applicant was unable to identify the persons who committed the intentional torts given:

(a) the investigation of the circumstances in which the Applicant went back on to the stage the second time was a critical issue in the extant pleadings; and

(b) the reality of the prejudice to the Respondent was the forensic disadvantage of having to meet a wider case, not a prejudice arising from the timing of the application to amend.

1. The learned primary judge failed to take into account relevant considerations, namely -

(a) the substantial correlation between the factual matrix underpinning the claims in negligence and breach of contract and the claims to be added by the PASC (T.3.15-21);

(b) that the Respondent had been on notice prior to the issue of proceedings of the allegations of fact that constituted the intentional torts (T.10.1-6);

(c) that it was an advantage to the Respondent and not a relevant prejudice that it had a pool of approximately 160 employees and others from whom it might draw potential witnesses to the intentional torts;

(d) the prejudice to the Applicant from the lost opportunity to make the case he desired to make;

(e) any of the objects set out in section 9(1) of the Civil Procedure Act 2010.

1. The decision by the learned primary judge to dismiss the application to amend the Statement of Claim in the form of the PASC was unreasonable and/or plainly unjust having regard to:

(a) the significant prejudice to the Applicant's substantive rights in preventing him from making the case he desires to make;

(b) the absence of any irremediable prejudice to the Respondent and without limiting the generality thereof, in particular;

(i) the substantial correlation between the factual matrix underpinning the claims in negligence and breach of contract and the claims to be added by the PASC;

(ii) the prior notice the Respondent had of the Applicant's allegations as to events constituting the proposed causes of action;

(c) the explanation for the late application being due to the failure of his lawyers and not due to any fault of the Applicant (T.10.6-13);

(d) the reduced weight to be given to case management principles arising from the fact that the hearing of the trial was aborted by reason of the making of the application itself irrespective of whether the amendment was allowed or not.

16 Counsel for the applicant relied on substantially the same factors in support of each of the proposed grounds of appeal.

17 In support of grounds 1 and 2, it was submitted that the judge failed to articulate and apply the correct legal test set out in s 9(1) of the Civil Procedure Act 2010, as explained in the decision of this Court in Northern Health v Kuipers.[2] In particular, it was submitted that the judge failed to take into account that the proposed claim in assault and battery was based substantially on the same factual matrix as the causes of action that had been pleaded, in the first statement of claim, in negligence and for breach of contract. The respondent previously had been placed on notice of the particular facts which constituted the proposed claim in assault and battery. The applicant had proffered an appropriate explanation for the late amendment, namely, that fresh counsel had considered that the claims to be made on behalf of the applicant should include a claim in intentional tort.

18 Counsel further submitted that the applicant was not required to specify, in the pleading, the identity of the persons who he alleged committed the assaults and batteries. He further submitted that in any event the respondent was in a position to be able to identify those persons for itself. Accordingly, it was submitted that the judge erred in considering that the applicant was required to identify the persons responsible for the assaults and batteries. In addition, it was submitted, the judge failed to take into account the viability of the claim that was sought to be made in assault and battery, and the importance of that claim to the prospects of success of the applicant in the substantive proceeding. In support of ground 2, it was contended that the judge failed to advert to any of those matters in her reasons for refusing the application by the applicant for leave to amend the statement of claim.

19 Similarly, in support of ground 3 it was submitted that the judge erred in taking into account, as a matter prejudicial to the respondent, the need for it to conduct further investigations of up to 160 persons in order to ascertain the names of those who were involved in the alleged assaults and batteries. It was submitted that that consideration was irrelevant, because, on the existing claims based in negligence and breach of contract, the respondent was already on notice that it was required to investigate the identity of those employees who were responsible for the conduct alleged in those claims. Similarly, in support of ground 4, it was submitted that the judge failed to take into account the substantial correlation between the factual matrix underpinning the claims in negligence and for breach of contract on the one hand, and the additional claim in battery sought to be added by the PASC. Further, the judge failed to take into account that the respondent had been on notice, before the issue of the proceedings, of the allegations of fact that constituted the proposed amended pleading of assault and battery. Counsel conceded that, ordinarily, case management principles might have weighed against the grant of leave to amend the pleading. However, the hearing of the trial had already been adjourned as a consequence of the application to amend the pleading, so that the grant of leave to the applicant to amend the pleading would not result in any additional delay in the trial.

20 Finally, in support of ground 5, it was submitted that the decision by the judge was unreasonable or plainly unjust, having regard to the significant prejudice to the applicant's substantive rights arising from the refusal of leave to amend his pleading, the absence of any irremediable prejudice to the respondent as a consequence of the amendment, the explanation given by the applicant for the late application, and the limited weight to be given to case management principles, as the hearing of the trial had already been aborted.

21 In response, counsel for the respondent noted that the judge, in her ruling, refused leave to amend in the form proposed, because the applicant failed to adequately particularise the conduct alleged against the persons who had committed the conduct that was relied on to constitute the tort of battery. Thus, her Honour did not preclude the applicant from re-pleading those torts in a proper form. Further, the respondent had not objected to the proposed amendments to the existing pleadings framed in negligence and for breach of contract.

22 On the other hand, it was submitted that the applicant had made its application for leave to amend at a very late stage, on the date fixed for the trial of the proceeding. The applicant had not proffered any proper explanation for his delay in amending its pleading, and, in particular, he had not given any such explanation on affidavit. Indeed, it was conceded by counsel for the applicant, on the application, that nothing new had been revealed, and nothing had changed, which had necessitated the proposed amendment.

23 Counsel for the respondent further submitted that the absence of particulars, identifying the persons alleged to have been involved in the assaults and batteries, constituted a substantial forensic disadvantage for the respondent, particularly in circumstances in which 160 people were present at the function, some of whom were not employees of the respondent. Thus, the claim that was sought to be made involved the proposition that the respondent was vicariously liable for the actions of persons unknown, who might not have been its employees, and, if they were employees, their roles within the respondent's corporate structure were unknown. Accordingly, it was submitted, the judge was correct to dismiss the application for leave to amend the statement of claim to include the proposed cause of action based in assault and battery.

24 The decision by the primary judge, to refuse the application for leave to amend the statement of claim, constituted an exercise of her Honour's judicial discretion. In order to succeed, the applicant must demonstrate a material error by the judge in the exercise of that discretion.[3] The decision of the judge essentially concerned a matter of practice and procedure. In such a case, this Court is required to exercise particular circumspection in reviewing such a decision. Ordinarily, in order to set aside a decision on a matter of practice and procedure, the appellate court must be satisfied, not only that there was material error by the judge in the exercise of the discretion, but, additionally, that the applicant will suffer substantial injustice if the decision is permitted to stand.[4]

25 In determining the application by the applicant for leave to amend the statement of claim, the judge was required to take into account the objects specified by s 9(1) of the Civil Procedure Act. Further, in Aon Risk Services Australia Pty Ltd v Australian National University,[5] the High Court considered the principles that are relevant to an application for leave to amend a pleading. In that case, the Court made it clear that, in determining such an application, among other matters, a court is required to take into account principles of proper case management, where there has been substantial delay and wasted costs pertaining to the application. In particular, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.[6]

26 In Northern Health, Kyrou and McLeish JJA, in their joint judgment, stated the applicable principles in the following terms:

The principles pertaining to an application to amend a pleading were explained in Aon Risk Services Australia Ltd v Australian National University. As set out in the reasons of J Forrest J in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London, the factors that the High Court in Aon considered as relevant to an application to amend a pleading include:

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[7]

27 In determining each of the proposed grounds of appeal, the starting point is that the judge was clearly correct in considering that the applicant had materially failed to particularise the proposed claims in assault and battery. In the absence of adequate particulars, which would enable the respondent to identify the person or persons who are alleged to have committed the assaults and batteries that were the subject of the proposed amended pleading, the respondent would not be able to investigate the claim and defend it. While it was asserted in the pleading, and from the Bar table, that the applicant was unable to identify the particular persons in question, who had committed the assaults and batteries, neither the applicant nor his solicitors deposed on affidavit to that effect. If the applicant were given leave to amend the pleading to include those claims, the respondent would, clearly, suffer irremediable prejudice, by being faced with a new claim, at a particularly late stage of the proceeding, which it was unable to properly investigate.

28 The applicant sought to meet that proposition by contending that, from an early stage, the respondent had been on notice that the applicant had alleged that he had been subjected to physical force to compel him to return to the stage in the course of the entertainment by the impersonator.

29 It is correct that, from an early stage, the applicant's account did include an allegation that, in one form or another, he was physically impelled towards the stage. In support of that contention, the applicant relies, first, on a report of Dr Brendan Hayman, dated 1 September 2015, secondly on the contents of a statement made by Ms Cristiana Bronson, the southern regional sales manager, dated 8 September 2015, and, thirdly, on the contents of the affidavit sworn by the applicant in support of the serious injury application dated 5 June 2017. However, on analysis, the contents of those documents do not support the conclusion contended for, namely, that from an early stage, the respondent was on sufficient notice that it ought to have investigated the identities of the particular persons who, it was alleged, had physically coerced the applicant to return to the stage.

30 Shortly after the events of 11 August 2015, the applicant made a claim for statutory payments under the Workplace Injury Rehabilitation and Compensation Act. In order to assess that claim, he was examined by Dr Brendan Hayman, a consultant psychiatrist, on 1 September 2015. In his report of the same date, Dr Hayman outlined the applicant's description of the events of the evening of 11 August 2015, which included that after the impersonator called him onto the stage, and the applicant declined to do so, 'a group of managers pushed him up'. Similarly, in his affidavit in support of the serious injury application, the applicant deposed that after the impersonator called him back onto the stage, several store managers grabbed him and pushed him towards the stage, so that when he got there, he felt he could not leave.

31 However, when the applicant spoke to Dr Hayman, and in his affidavit, he did not contend that it was those actions which, in a material sense, caused him emotional or psychological distress. Rather, when he spoke to Dr Hayman, he said that after he had been pushed onto the stage, he felt he could not extricate himself from the situation, he felt humiliated, he was asked personally intrusive questions, and he was then required to dress up in 'gold hotpants a bikini top and a pink cowboy hat', after which he was pushed onto the stage, and laughed and cheered at. Similarly, in the affidavit, the applicant said that after he was pushed onto the stage, he felt he could not leave, and he felt trapped and helpless. He then described the same circumstances of what occurred on stage, namely, being asked embarrassing questions, dressed up in fancy clothing, and required to perform in front of his work colleagues. The thrust of the applicant's affidavit was to the effect that it was those circumstances which embarrassed and humiliated him, causing him to feel distressed.

32 Thus, the central thrust of the allegations made by the applicant, before the issue of the proceedings, was to the effect that, although he had been physically forced to attend on the stage, it was the experiences to which he was subjected while on the stage that precipitated his emotional and psychological distress, in respect of which he sought compensation. In those circumstances, the account given by the applicant was not such as to put the respondent on notice that the applicant was claiming compensation or damages in respect of the initial part of the incident, in which, he alleged, he was physically impelled to attend on the stage on the second occasion.

33 The statement provided by Ms Bronson, the respondent's southern regional sales manager, did not advance the proposition contended for by the applicant in this application. Ms Bronson stated (inter alia) that on the first occasion the applicant voluntarily attended on the stage, and performed well. She said that the applicant joined in the spirit of the occasion by laughing and being in good spirits. Subsequently, when the impersonator called the applicant back onto the stage, the impersonator 'grabbed him by the arm and escorted him to the stage'. Ms Bronson said that from what she observed the applicant went there voluntarily. Pausing there, there was nothing in the statement made by Ms Bronson which suggests that the respondent was, in any respect, on notice that it ought to investigate the account that the applicant had given to Dr Hayman (and subsequently gave on his affidavit) that he had been physically impelled to re-attend on the stage in a manner and circumstances which caused him distress or humiliation.

34 As we have noted, the original statement of claim pleaded causes of action based in negligence and breach of contract. Specifically, in paragraph 4 of the statement of claim, the applicant pleaded that he was subject to embarrassment and humiliation 'when being obligated to dress up dance and sing as part of the entertainment at such conference'. That central allegation did not involve, in any form, an underlying allegation that the applicant had been subjected to physical force of coercion. Rather, the applicant's claim was based on the allegation that, when he was on stage, he was required to dress up, dance and sing.

35 That focus of the applicant's claim was made clear in the specific particulars of negligence pleaded under paragraph 6 of the original statement of claim. Subparagraphs (d) to (g) of those particulars alleged as follows:

(d) Obliging the Plaintiff to sing and dance dressed in inappropriate clothing in front of his work subordinates such that the activity was likely to cause embarrassment and humiliation to the Plaintiff;

(e) Subjecting the Plaintiff to insult and ridicule;

(f) Causing and/or allowing the Plaintiff to be the subject of insult and humiliation in the workplace;

(g) Failing to have any or any proper regard for the position and sensitivities of the Plaintiff when obliging him to become part of the entertainment at the said conferences;

36 Thus, as the statement of claim then alleged, and as that pleading stood until a short time before the date fixed for trial of the proceeding, the three allegations made by the applicant were, first, that he was obliged (against his will) to dress up, dance and sing on the stage at the conference, secondly, that as a consequence of the humiliation to which he was subjected in that process, he suffered psychological injury, and, thirdly, that he was injured as a result of the negligence (or breach of contract) of the respondent.

37 Importantly, in order to establish that third proposition, the applicant was required to prove that the respondent ought to have reasonably foreseen that in the circumstances the applicant was at risk of sustaining psychiatric injury in consequence of his being required to participate in the entertainment at the conference when he returned to the stage on the second occasion.[8]

38 By contrast, the central focus, of the proposed cause of action in assault and battery, concerned the actions of those persons who were alleged to have physically forced the applicant onto the stage. In order to establish the tort of battery, a plaintiff must prove (inter alia) the performance by the defendant of a voluntary act which caused physical contact with the plaintiff.[9] The assaults pleaded in the PASC are the batteries which are alleged to have constituted 'threatening behaviour'. Thus, the critical issues, in the proposed cause of action, would be, first, whether there was any application of force to the applicant by an employee of the respondent, or by a person for whose conduct the respondent was responsible, and, secondly, whether, in the circumstances, the applicant had conveyed to such person or persons that he was not consenting to being physically persuaded to attend on the stage (the respondent bearing onus on the issue of consent). If the applicant were to succeed on those two issues, his cause of action in battery would be made out, and a critical element in the cause of action in assault would also be established. In order to defend such a case, it would be essential for the respondent to be able to ascertain the identities of those persons, who, it was alleged, had physically impelled him to the stage, in order to obtain the accounts of those persons as to what they each did, and to examine the circumstances and the actions undertaken by those persons, in order to be able to assess whether the respondent would be held vicariously liable for any tort committed by them.

39 Accordingly, the issues, that would necessarily be involved in investigating and defending the proposed claims based in assault and battery, were, at most, peripheral to the original claim based in negligence and breach of contract. In the context of the claims pleaded in the original statement of claim, the respondent did not need to investigate them, and, in particular, to ascertain the identities of the persons involved in impelling the applicant onto the stage, or gaining from those persons their contemporaneous account of what had occurred. Accordingly, the judge was correct to proceed on the basis that, in light of the fact that the amendment was sought to be made some four years after the events in question, the respondent would not be able to adequately investigate the matters that would be central to it defending the proposed claims in assault and battery. For those reasons, the judge was correct to conclude that the proposed amendment to the statement of claim would involve irremediable unfair prejudice to the respondent of a nature which justified rejecting the application by the applicant for leave to amend the pleading.

40 The application for leave to amend was made at a very late stage in the proceeding, on the eve of the date on which the case was fixed for trial. The applicant did not proffer any satisfactory explanation for the delay in making the application. The applicant, or his solicitors, did not provide any such explanation by way of affidavit. From the Bar table, counsel on behalf of the applicant explained that due to the change in counsel, a different view had been formed as to the appropriate cause of action to be advanced on behalf of the applicant. That explanation was by no means an adequate excuse for the delay. The cause of action, based in battery, is not particularly uncommon. It is a well-known and well understood tort, and it could have been appropriately pleaded from an early stage, if those acting on behalf of the applicant had considered that it was worth relying on it. The purpose of pleadings is to define the issues that are to be agitated in the proceeding, and to be determined by the court. In the circumstances of this case, it was unacceptable, from the point of view of proper case management, that those acting on behalf of the applicant should, without any adequate explanation, seek to alter the whole basis upon which the trial was to proceed, at such a very late stage.

41 In seeking leave to appeal, counsel for the applicant submitted that the judge erred in failing to consider the viability of the proposed amended causes of action in assault and battery. It is not necessary for us to enter upon that consideration. However, it should be observed that there is a reasonable basis for considering that the applicant has not suffered any significant prejudice or disadvantage, by reason of the rejection of the application for leave to amend his claim.

42 In particular, without determining the issue, it is somewhat doubtful that the proposed claims, that are sought to be pleaded in the PASC, might succeed, and, in particular, whether those claims would result in the award of other than nominal damages to the applicant.

43 There are two difficulties that would confront the applicant if he were permitted to rely on the proposed causes of action in assault and battery. First, in order to succeed on the cause of action in assault, the applicant would need to establish, as one of the elements of the cause of action, that the persons who, it is alleged, engaged in actions that were threatening to him, thereby intended to create in the mind of the applicant an apprehension that he would be subjected to undesired physical contact.[10] The proposed amendment does not plead any such intent on behalf of the persons who, it is alleged, were responsible for the assaults. Nor does the description of the events, given by the applicant to Dr Hayman or on his affidavit, necessarily support the existence of any such intent on behalf of the persons who, it is alleged, so assaulted him.

44 Secondly, the cause of action based in battery is complete upon the proof of the intentional application of force to the plaintiff. If the battery or assault is proven, the plaintiff is entitled to at least nominal damages. However, in the present case, it is doubtful that a court would conclude that the psychological injury, claimed to have been sustained by the applicant, was or could have been caused by the actual acts that constituted the batteries, or by the conduct that is alleged to have constituted the assaults.

45 Specifically, the applicant does not allege that by reason of the physical force that he says was applied to him, or by reason of the alleged assaults, he thereby sustained psychological injury. Rather, his complaint is that, after he felt compelled to return to the stage (part of such compulsion being the physical force that had been applied to him), he was then subjected to a number of humiliating experiences, including being asked embarrassing questions, and being required to dress up, to dance, and to sing, such experiences being the cause of his psychological injury. Viewed in that light, it is, at least, doubtful that a court would conclude that the psychological injury, complained of by the applicant, was caused by the alleged batteries, or by the alleged assaults, applying the common sense test of causation discussed by the High Court in March v E & MH Stramare Pty Ltd.[11] Similarly, it would be doubtful that a Court would, in any event, conclude that the psychological injury, claimed by the applicant, was a natural and probable consequence of the assault or battery alleged in the proposed pleading, so as to be recoverable damage sustained pursuant to such causes of action.[12]

46 For those reasons, the applicant has failed to demonstrate that there was any relevant error by the primary judge in the exercise of her Honour's discretion. Specifically, the applicant has failed to make out any of the proposed grounds of appeal.

47 In respect of ground 1, the judge did not apply the wrong test in determining whether to grant leave to the applicant. As we have discussed, her Honour correctly rejected the submissions, advanced by the applicant, that the respondent had significant previous notice of the factual basis of the claims in assault and battery, and that there was a significant correlation between the factual inquiry involved in the negligence and breach of contract claims and the proposed claims in assault and battery. Thus, her Honour correctly concluded that if leave were granted, the respondent would suffer irremediable prejudice. That conclusion was, of itself, sufficient to dispose of the application for leave to amend, in circumstances when that application had been made, without any satisfactory explanation, at a very late stage. For those reasons, ground 2 is also not made out. The judge sufficiently stated the appropriate test, and gave adequate reasons for her conclusion in relation to it.

48 For the same reasons, contrary to ground 3, the judge did not take into account an irrelevant consideration. As we have discussed, her Honour was correct to conclude that the proposed new cause of action in assault and battery would have required the respondent to investigate, a number of years after the event, the particular circumstances in which the applicant claimed that he had been physically forced to attend upon the stage on the second occasion. For the same reason, ground 4 must fail; that ground is based on a false premise, namely, that there was a substantial correlation between the factual matrix underpinning the claims in negligence and for breach of contract, and the claim in assault and battery to be added in the PASC.

49 Finally, ground 5 must fail. The judge's decision, to dismiss the application, was not unreasonable or plainly unjust. On the contrary, we consider that it was quite correct in the circumstances.

50 Accordingly the application for leave to appeal must be refused.

[1] [1897] 2 QB 57.

[2] [2015] VSCA 172 ('Northern Health').

[3] House v The King (1936) 55 CLR 499, 504-5.

[4] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176-7 (Gibbs CJ, Aickin, Wilson and Brennan JJ) (citations omitted).

[6] Ibid 217 [111]-[113] (emphasis in original) (citations omitted).

[7] Northern Health [2015] VSCA 172, [28] (citations omitted).

[8] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 55-57 [26]-[33] (McHugh, Gummow, Hayne and Heydon JJ).

[9] Carter v Walker [2010] VSCA 340; (2010) 32 VR 1, 38-9 [215] ('Carter').

[10] Rozsa v Samuels [1969] SASR 205, 207; Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 114 [56]; ACN 087 528 724 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559, 564-5 [16].

[11] [1991] HCA 12; (1991) 171 CLR 506.

[12] Carter [2010] VSCA 340; (2010) 32 VR 1, 39 [215].