HIS HONOUR: These proceedings commenced their final hearing before me today. At approximately noon the first plaintiff indicated that she wished to amend her amended statement of claim. The first plaintiff, by leave, appears by her husband Mr Agresta who was the second plaintiff in these proceedings. However, for reasons which I need not record in this judgment, the second plaintiff, as such, plays no further part in the proceedings. His only role now is, by leave, to represent his wife.
I afforded Mr Agresta time from approximately 12.15 until 2 o'clock to formulate his proposed amendment. By about 2.30pm he had done so. His proposed amendment has been admitted into evidence for reference only as exhibit 8P. I have heard submissions both from Mr Agresta and from Mr Newton of Counsel for the defendant. The defendant opposes the amendment.
I considered the applicable legal principles in relation to an amendment in the Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2013] NSWSC 764 at paras 48 to 55:
48. The parties, correctly, agreed that I had power to permit Macquarie's amendment under s 64 of the Civil Procedure Act 2005 (NSW) ("the CP Act"), which provides:
(1) At any stage of proceedings, the court may order:
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …
49. Section 58 of the CP Act provides:
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and …
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, …
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
50. Pausing there, I therefore proceed on the basis that the prima facie mandatory requirement for all necessary amendments to be made under s 64(2) is to be exercised subject to the requirements of s 58. In doing so it is mandatory for the Court to have regard to the provisions of ss 56 and 57 of the CP Act and permissible for the Court to have regard to the matters listed in s 58(2)(b). I have reproduced above those permissive matters listed in s 58(2)(b) which I consider to be relevant to the present application and which I have in fact taken into account.
51. Section 56 requires the Court, in an application of this kind, to give effect to the overriding purpose of the CP Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
52. Section 57(1) of the CP Act requires the overriding purpose to be effected having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
53. The enactment of the CP Act has meant that the case law developed before that legislation relating to matters such as amendment of pleadings is no longer directly relevant. Nevertheless, that case law can provide a useful guide, particularly as to discretionary considerations of the kind which fall within s 58(2)(b)(vii) of the CP Act.
54. In the course of argument before me there was discussion as to the applicability, by analogy, of cases dealing with, for example, applications for leave to reopen proceedings following the delivery of judgment (e.g., Smith v NSW Bar Association (1992) 176 CLR 256 at 266-267) or where, on appeal, matters not raised below are sought to be relied upon for the first time (e.g., Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). However, while cases of that kind may point to discretionary considerations which could be relevant to the present case, I do not propose to seek to apply such cases by analogy. I respectfully agree with the observation of the Court of Appeal in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 ("Walker Corporation") (upholding a decision of Biscoe J in the Land and Environment Court refusing a party leave to amend its points of claim after the matter had been remitted to his Honour from the Court of Appeal) where at [92] Basten JA (with whom Beazley and Young JJA agreed) said:
… The danger of relying upon analogy is that it will distract attention from the specific circumstances of the particular case. Appropriate guidelines promote uniformity of approach and are desirable; guidelines adopted by analogy may be helpful in some situations, but not in others.
55. In determining this application I have applied the provisions of the CP Act to which I have referred. Nevertheless, drawing upon considerations which have been identified as relevant in cases of the kind cited in paragraph 54 above, I have identified the following matters which (with one exception) I consider to be relevant in the circumstances of this case pursuant to s 58(2)(b)(vii) of the CP Act:
(a) the principle of finality of litigation, particularly after the entry of judgment and, a fortiori, after appeal;
(b) (not relevant to this application) whether the application is based on fresh evidence either not reasonably obtainable before the hearing or relating to events after the hearing;
(c) the reasons for the amendment application and why the subject matter of the application had not been pleaded earlier, including whether a forensic decision had been made not to do so; and
(d) whether the defendant would have taken a different forensic course (including raising different legal issues, calling additional evidence and pursuing other lines of cross examination) had the proposed new issue been pleaded before the matter had been heard.
I will apply what I have just set out and assume in favour of the first plaintiff, without deciding, that the amendment is a necessary one within the meaning of s 64(2) of the CP Act. Notwithstanding that assumption in favour of the first plaintiff, the amendment ought not be allowed. The reasons for that are as follows.
First, even taking into account the fact that Mr Agresta is not legally qualified and making all appropriate allowances for that, the proposed amendment comes too late in the proceedings. It would be seriously disruptive of the orderly conduct of these proceedings to introduce further issues concerning an alternative basis on which the first plaintiff proposes to allege that the judgments of this court and the Court of Appeal in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17 (White J), and Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (Spigelman CJ; Campbell JA; Handley AJA) (the "Phoenix judgments") were obtained by some form of impropriety or irregularity. Mr Agresta shies away from the use of the word "fraud" and I will take him at his word in relation to that.
This case has been fixed for hearing on the basis of the amended statement of claim, which was filed pursuant to a consent order made on 6 September 2013. The amended statement of claim sets out, as best as possible, the bases on which the first plaintiff wishes to contend that the Phoenix judgments were obtained by some illegality or irregularity. The basis now sought to be propounded in the proposed amendment is new and the defendant has not had an opportunity to consider what implication it may have for the defendant's case beyond the obvious point that a complete review of available evidence will be required.
Second, and more fundamentally than the case management considerations to which I have referred above, the proposed amendment does not disclose any cause of action and is therefore futile. With respect to Mr Agresta, it remains quite difficult to follow the chain of reasoning which he has set out in the proposed amendment. However, one thing is clear and I have sought to elucidate that in exchanges between myself and Mr Agresta. The one thing that is clear is that Mr Agresta wishes to contend that the Phoenix judgments were improperly obtained because the defendant had actual and constructive knowledge of a document known as the "tie in deed". In proposed paragraph 1N the first plaintiff wishes to plead:
However, at all times the Landlord and its solicitor were silent regarding the Deed, a collateral agreement, and therefore impliedly intended it to be understood that the failure to refer to the collateral agreement would or could be taken by the court as a representation that there was no other agreement in existence between the landlord and tenant.
That allegation of a representation by silence is unsustainable in its terms. I have been informed by Mr Agresta that during the course of the proceedings at first instance and on appeal, albeit at a late stage in the case of the proceedings before White J, Phoenix was represented by counsel and counsel was well aware of the tie in deed. Phoenix's counsel did not choose to draw attention to the deed. I am quite unable to see how the defendant's failure to draw attention to the tie in deed could be said to be in any way misleading. In particular, silence in and of itself in relation to the tie in deed, in the context of contested proceedings where both parties are represented by counsel cannot, in my view, give rise to a situation of an implied representation by the defendant to the Court that there was no other agreement in existence between the landlord and the tenant. No other facts are proposed to be pleaded that could support the contention that either court was misled by silence as to the existence of the tie in deed in the way the first plaintiff wishes to plead.
Therefore, for both case management reasons and because I am of the view that the amendment taken as a whole, but particularly because of the matters to which I have just specifically drawn attention, must fail, the application to amend the amended statement of claim in accordance with exhibit 8P is refused.
[2]
Amendments
23 September 2015 - Front page - Catchwords - "issued" changed to "issue of"
23 November 2015 - Decision date changed to 5 May 2014
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Decision last updated: 23 November 2015