Carlene Randall v City of Canada Bay Council

EX TEMPORE Judgment

1. 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.
2. 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.
3. 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.