Cheers v El Davo Pty Ltd [2000] FCA 310 | Case summary

1 There is before the Court an application by Capital Investments Corporation Pty Ltd ("CIC"), the tenth respondent in what I shall describe as the "principal proceeding", to amend its second further amended cross-claim against the eightieth to eighty-third cross-respondents. Those cross-respondents are Classic Trading Pty Ltd ("Classic"), Mr Elliot Davis, Mr Frank Crombie and National Finance Group Pty Ltd "(NFG"). I shall refer to those cross-respondents collectively as "the Davis cross-respondents". 2 On 28 February 2000, I set down the trial of the cross claim to commence on Tuesday, 14 March 2000. The reason for that date having been fixed for hearing was that all issues in dispute in the principal proceeding had been resolved shortly after the trial commenced save for those matters in dispute between CIC and the Davis cross-respondents. A copy of the proposed third further amended cross-claim was first provided to counsel for the Davis cross-respondents at 4.30 pm on Friday, 10 March 2000. That was the afternoon of the last business day before the trial was due to commence, and approximately ten days after that commencement date had been fixed. 3 No formal notice of CIC's intention to seek leave to amend its cross-claim was given by CIC to the Davis cross-respondents at any time prior to the provision of the proposed amended pleading last Friday afternoon. Moreover, no indication was given by CIC of the nature of the proposed amendments. 4 The cross-claim has at all relevant times pleaded a number of distinct causes of action against the Davis cross-respondents. These have included: · the tort of inducing breach of contract; · misleading or deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) ("the Act") on the part of Classic; · various breaches of the Corporations Law on the part of Crombie; · various breaches of fiduciary duty on the part of Crombie; · various permutations of ancillary or derivative liability on the part of each of the Davis cross-respondents. 5 It is unnecessary for me to set out the proposed amendments to the cross-claim in detail. It is sufficient for present purposes to summarise them as being, in substance, as follows: · in relation to the allegation that Crombie had acted in breach of his fiduciary duty to CIC it is proposed that par 31 of the second further amended cross-claim be amended by the addition of what are, in substance, particulars of the fiduciary duty which he is said to have owed CIC. It is also proposed to set out in much greater detail than was previously done how that fiduciary duty had been breached. This is to be done by adding pars 31A to 31E to the cross-claim. · alleging that NFG engaged in misleading or deceptive conduct in breach of s 52 of the Act by seeking to fix NFG with responsibility for Crombie's conduct as set out in the proposed new par 31D by invoking section 84(2)(b) of the Act. This is to be done by amending paras 36 to 43 of the cross-claim. · alleging that Davis is accessorially liable for NFG's breaches of s 52 of the Act as set out above by invoking s 75B of the Act. This is to be done by amending par 44 of the cross-claim. · alleging that Crombie has engaged in misleading or deceptive conduct arising out of the matters set out in the proposed new par 31D of the cross-claim, in breach of s 11 of the Fair Trading Act 1985 (Vic). 6 The hearing of the matters raised by CIC in its cross-claim against the Davis cross-respondents was not originally expected to take place until much later this year. The settlement of the principal proceeding between the applicants and the respondents has meant that a number of the issues raised in the cross-claim will now be heard much sooner than previously expected. When the settlement between the applicants and the respondents was announced, counsel for the Davis cross-respondents sought, and were granted, an adjournment of some two weeks to enable them to complete their preparation for the trial of the cross-claim, given that they would now have the carriage of a number of matters that were previously to be agitated by the applicants. That adjournment was not opposed by counsel for CIC. 7 The circumstances which have led to this application for leave to amend being made may be summarised in the following way. On 1 February and 9 February 2000 respectively witness statements by Crombie and by Davis were filed on behalf of the Davis cross-respondents. Those witness statements contain detailed accounts by Crombie and Davis of a series of critical events which occurred in May and June 1996. Counsel for CIC contend that the details of those events contained in those witness statements had not previously emerged with any clarity notwithstanding the copious discovery given in the principal proceeding. Counsel for CIC were engaged, at the time these witness statements became available, in preparing for the trial of the principal proceeding and, subsequently, in negotiations with the applicants and with the other respondents with a view to settling that proceeding. Consequently they did not immediately appreciate the significance of those witness statements. 8 Subsequently it became apparent to counsel for CIC that the witness statements contained what they now contend are significant and damaging admissions. Those admissions are said to support the claims made by CIC that Crombie breached his fiduciary duty to CIC, by providing specific details of the facts and matters which Crombie (whilst a director and employee of CIC) had discovered between May and June of 1996 and allegedly refrained from disclosing to CIC. The admissions are also said to provide details of actions taken by Crombie in May and June 1996, including his conversations with Davis and others which are said to have constituted breaches of fiduciary duty on Crombie's part. These facts and matters lie at the heart of the proposed new claim against NFG, and also of the proposed new claim against Davis. 9 Counsel for CIC have foreshadowed that they not only seek to amend the cross-claim against the Davis cross-respondents, but that they also intend to call Crombie and Davis as witnesses for CIC in the trial. Indeed, counsel for CIC have announced that they intend to call Crombie and Davis as the first witnesses in the case. They propose to invite Crombie and Davis to adopt the contents of their witness statements, and also to clarify what are described as some minor matters. By calling Crombie and Davis to give evidence, CIC anticipates that it will ensure that their evidence is admissible against all of the Davis cross-respondents, and not merely against Crombie and Davis themselves. 10 Counsel for CIC acknowledge that their application for leave to amend the cross-claim is made at a comparatively late stage of the proceedings, though they note that it is still prior to the opening of their case. They submit that there can be no prejudice to the Davis cross-respondents in permitting these amendments to be made, apart from the damage which it is expected that the evidence of Crombie and Davis will do to their own case and that of the other Davis cross-respondents. Prejudice of that type is clearly not a reason for refusing leave to amend a pleading. Counsel for CIC also note that the proposed amendments to the cross-claim are taken substantially from the witness statements of Crombie and Davis, a matter which is not disputed by counsel for the Davis cross-respondents. Counsel for CIC submit that counsel for the Davis cross-respondents can hardly claim to be taken by surprise by what two of their own clients will say. any prejudice arising out of what might be thought to be a somewhat unusual tactic, and out of the surprise possibly engendered by that tactic, could be overcome, counsel for CIC submit, by a short adjournment of the trial. 11 Counsel for CIC also contend that the amendments which they propose are fully particularised, require no additional discovery to be given by either side and do no more than set out, in considerably greater detail than the cross-claim had previously done, matters which they had, in substance, pleaded in any event. They submit that merely ascribing a new legal character to some of the facts now sought to be alleged cannot occasion prejudice of a kind which would warrant refusing leave to amend. 12 Counsel for the Davis cross-respondents submit that leave to amend should be refused. They point to the lateness of the application for leave, and the discourtesy with which they were treated in not having been provided with details of the proposed amendments until almost the last moment before the commencement of the trial of the cross-claim. They contend that there has been no adequate explanation for the lateness of the application and that they have, in effect, wasted a good part of the two weeks' adjournment granted to them to finalise preparation for the trial after the principal proceeding had settled. They say that they should have been told significantly sooner that amendments to the cross-claim were contemplated. 13 Counsel for the Davis cross-respondents also contend that, if leave is granted to amend the cross-claim, they will be entitled to further particulars. They say that there will have to be further discovery, and that they will be required to carry out further investigations into some of the matters now sought to be alleged. They say further that if leave is granted, a lengthy adjournment of the trial will be necessary. Such an adjournment would impose intolerable burdens upon their clients, including additional strain and extra costs. They submit that it is unfair, and contrary to public policy, to permit the witness statements filed by Crombie and Davis to be used as the basis for CIC's application to amend its cross-claim. Those witness statements were prepared with a view to meeting the case pleaded against the Davis cross-respondents at a time when the pleadings were thought to have been closed. To permit the amendments to be made, they say, would be tantamount to permitting the goalposts to be moved. 14 Counsel for the Davis cross-respondents also took objection, on a separate basis, to the proposed amendment to the cross-claim which would have raised for the first time a claim against NFG for having engaged in misleading or deceptive conduct contrary to s 52 of the Act. They submitted that this claim was statute-barred pursuant to s 82(2) of the Act. They conceded, however, during the course of argument, that given that no limitation point had yet been pleaded by them, for obvious reasons, and that there was at least some uncertainty as to when this particular cause of action could be said to have accrued, this matter should be left for determination to a later stage in the proceedings. 15 Each side provided me with extensive references to authority. Among the cases drawn to my attention were Commonwealth v Verwayen (1990) 170 CLR 394, where Dawson J observed at 456: "The considerations which govern a decision to grant or refuse leave to amend are of a different kind from those which go to establish an estoppel. The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties (see now O. 31, r. 1 of the Supreme Court Rules (Vict)) and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment (see Shannon v Lee Chun, Tildesley v Harper, Cropper v Smith). The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. An amendment may, however, be refused because it is made at such a late stage that neither costs nor an adjournment can compensate the other side for the failure to raise the issue at an earlier stage." (footnotes omitted) 16 Toohey J said at 464: Leave to amend is ordinarily given, even at a late stage, so long as this can be done "without injustice to the other party", to use the words of Bowen LJ in Cropper v Smith (see also Shannon v Lee Chun, Clough v Frog, Atkinson v Fitzwalter). Nevertheless, it is appropriate to refuse leave to amend, if to grant leave may bring about an injustice to the other party which cannot be compensated by an adjournment or by an order for costs. This is not something that can always be determined by reference to the merits of the matter sought to be raised by the proposed amendment (Strauss v Douglas Aircraft Co). There may be cases, and a plea of limitations is a good example, where the amendment proposed has every prospect of success but comes at such a late stage that, if it be granted and the point raised succeeds, an award of costs in favour of the other party is no adequate compensation. It may be, for instance, that it is then too late for the plaintiff to bring action against anyone else: (see Joint Coal Board v Adelaide Steamship Co Ltd). It should not be lightly assumed that the "healing medicine" (the words are those of Bowen LJ in Cropper v Smith) of costs is always a sufficient cure for the disadvantage to the other side." (footnotes omitted) 17 My attention was also drawn to certain well-known passages in the joint judgment of Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 152 to 155 and to the decision of the Victorian Court of Appeal in Howarth v Adey [1996] 2 VR 535 at 542 per Winneke P. In both these decisions reference was made to the decision of the House of Lords in Kettemen v Hansel Properties Ltd [1987] AC 189, where Lord Keith of Kinkel said at 203: "Whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well-settled principles ... The rule is that amendment should be allowed if necessary to enable the true issues in controversy between the parties to be resolved, and if allowance would not result in injustice to the other party not capable of being compensated by an award of costs." 18 Lord Griffiths said at 220: Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall upon their own heads rather than by allowing an amendment at a very late stage of the proceedings." 19 It should be noted that their Lordships' comments in Kettemen were directed at a situation where application is made to amend a pleading at the very conclusion of a case, and not, as in the present case, at a much earlier stage of the proceeding. 20 What emerges from these authorities is that the question of whether or not to permit an amendment to be made to a pleading is a matter for the discretion of the trial judge. That discretion must be exercised judicially and in accordance with well-settled principles. 21 In my opinion, the application by CIC for leave to amend its cross-claim against the Davis cross-respondents should be granted for the following reasons: · The application, though made on the afternoon preceding the commencement of the trial, and therefore late, was made before counsel for CIC opened its case against the Davis cross-respondents. Provided adequate opportunity is given to counsel for the Davis cross-respondents to prepare themselves to meet the changes brought about by the amendment to the pleading, no irreparable prejudice will be occasioned to the Davis cross-respondents by granting leave to amend. There will be no need, for example, for witnesses to be recalled, or for any sudden, last-minute, changes to be made to the manner in which this case is to proceed. · Counsel for the Davis cross-respondents cannot claim that they are taken by surprise by the contents of the proposed amendments. The facts now sought to be pleaded are taken substantially from the witness statements prepared by and on behalf the Davis cross-respondents. · The proposed amendments, as pleaded, are in my view adequately particularised, save for one or two quite minor matters. · There should, in my opinion, be no additional discovery required to be given by either side as a consequence of permitting the proposed amendments to be made. · It is desirable, in the interests of justice, that CIC be permitted, in circumstances where prejudice to the Davis cross-respondents can be overcome by appropriate orders, to plead its case as it sees fit, upon proper material, and to adduce such evidence as it is able to procure to support that case. CIC should not be shut out from presenting an arguable case merely because the matters which it wishes to agitate have only come to light at a comparatively late stage in the proceedings. · There is no reason in principle why a party who has pleaded a case against another party in a particular way should not seek to amend its case after discovering from the other side's witness statements that the case can be put in a more advantageous manner. · I do not accept that anything other than a relatively short adjournment is required to enable counsel for the Davis cross-respondents adequately to prepare to meet the proposed amendments to the cross-claim. 22 I will hear counsel in relation to the duration of any adjournment which may be warranted. In my view, a short period would be sufficient to enable such further instructions as are required to be obtained, and any further investigations to be carried out. 23 I believe that any additional prejudice to the Davis cross-respondents arising from the amendment of the cross-claim can adequately be dealt with by the granting of a short adjournment, and by making appropriate orders as to costs. I will hear the parties further on the issue of costs. [Argument ensued and the orders set out at the commencement of this ruling were pronounced.] I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Weinberg.

Cheers v El Davo Pty Ltd

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