First Plaintiff v First Defendant

1 These reasons relate to the plaintiffs' late application by amended summons filed 30 March 2026 (Amended Summons) for leave to file a second further amended statement of claim (Revised Application).

2 Briefly, the plaintiffs seek damages and other relief against the defendant in connection with what they claim was the wrongful termination of a licence to locate and operate a floating entertainment venue in Victoria Harbour, Docklands (Licence). Among other things, the plaintiffs allege that the defendant breached an implied term of the Licence requiring it to act reasonably and in good faith by reason of specified alleged acts and omissions. They also bring claims based on alleged misleading or deceptive conduct and unconscionable conduct by the defendant.

3 This proceeding was commenced in December 2023 and is now a proceeding against only the first defendant (defendant or Council) because the claim against the second defendant was settled in November 2025. By orders made on 6 March 2025 the proceeding was fixed for trial not before 14 April 2026 on the parties' joint estimate of seven days.

4 On 17 February 2026 the parties were informed that the trial would commence on 11 March 2026 (First Trial Date). The plaintiffs opposed this date and sought to have it vacated due to, among other things, counsel availability. The defendant was somewhat indifferent about the First Trial Date. This issue was addressed at the directions hearing on 20 February 2026, and the First Trial Date was vacated.

5 On 5 March 2026 the trial was refixed to commence before me on 13 April 2026 (Trial Date), which remains the position. Eight days have been allowed for the trial, which is a day longer than the parties' previous seven day estimate, but noting that the seven day estimate assumed that the trial would also involve the hearing of the claims against the second defendant.

6 Apart from this application, the defendant filing its outline of opening submissions when due, and one or two other matters that will be dealt with satisfactorily, the proceeding is now ready to proceed on the Trial Date.

7 Given the impending Trial Date, and a mediation scheduled to occur on 8 April 2026, it was necessary for the Court to deal with the Revised Application urgently, and it was heard on 1 April 2026. After leaving the Bench for a period at the conclusion of argument that day, I delivered my ruling and reasons orally.

8 For the reasons that follow, I concluded that leave should be granted to the plaintiffs to file and serve a second further amended statement of claim substantially in the form exhibited to the Second Ghabrial Affidavit (defined below) (Revised Proposed Claim), but excluding the proposed amendment in paragraph 81(d)(i) and the first three paragraphs of the particulars to paragraph 81(d)(ii) of the Revised Proposed Claim (Revised Working Group Amendment). Although leave to amend will be granted in respect of the other amendments, I note for completeness that the other proposed amendments were ultimately consented to.[1] This included part of the proposed amendment in paragraph 81(d)(ii) of the Revised Proposed Claim, which was consented to during the hearing after counsel for the plaintiffs clarified and confirmed its narrow scope.

9 The plaintiffs relied upon affidavits of their solicitor, Mr Ghabrial, sworn on 25 March 2026 (First Ghabrial Affidavit) and 30 March 2026 (Second Ghabrial Affidavit), and a written submission filed on 25 March 2026, which was supplemented by oral submissions from counsel. The defendant relied upon the history of the proceeding, the material before the Court, and oral submissions from counsel.[2]

10 Prior to the hearing of the Revised Application, I had the opportunity to read all the written material, review the previous pleadings and other filed documents, and review the history of the file, including all previous orders and transcripts.

11 A review of the procedural history, orders, and transcript in the proceeding reveals that the plaintiffs have failed to meet numerous court deadlines since the proceeding was commenced,[3] including very recently, and notwithstanding that the Court was informed by counsel for the plaintiffs on 20 February 2026 that the proceeding was 'back on track' and that the then proposed further extension dates for various steps could be met.

12 On 18 March 2026, it was noted by my chambers that certain steps that were required to be taken by the plaintiffs had not been taken in accordance with the orders made on 20 February 2026. The parties were informed by email that the Court required a status update, and that the outstanding steps should be completed forthwith. Later that day, the defendant's solicitors informed the Court about the extent of the plaintiffs' non‑compliance with the orders made on 20 February 2026 and 10 March 2026. They also informed the Court that on 16 March 2026 the plaintiffs' solicitors informed the defendant's solicitors, for the first time, that the plaintiffs intended to seek leave to make further amendments to their further amended statement of claim, with the proposed pleading having been provided to the defendant late on 18 March 2026.

13 Given that the trial was fixed to commence on 13 April 2026, which is shortly after the Easter public holiday, the matter was urgently listed for directions before me on 20 March 2026. At that directions hearing, concerns were again raised by the Court in respect of the plaintiffs' failure to comply with Court orders, and the lateness of the proposed amendment application given the Trial Date. Orders were made requiring the plaintiffs' application and supporting material, together with an outline of submissions, to be filed by 25 March 2026, with any responsive material and submissions to be filed by 1 April 2026. The latter date was subsequently brought forward to enable the Revised Application to be urgently heard on 1 April 2026.

14 The plaintiffs filed affidavit material and their submissions on 25 March 2026, together with a summons seeking leave pursuant to r 36.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules) to file and serve a proposed second further amended statement of claim substantially in the form of the document exhibited to the First Ghabrial Affidavit. The then proposed second further amended statement of claim contained numerous amendments, including, but not limited to, proposed deletions following on from the settlement of the claim by the plaintiffs against the second defendant. Two of the many proposed amendments were said by the plaintiff to be substantive and raise new claims.

15 At a pre-scheduled directions hearing on 27 March 2026, and following an earlier request of the Court, the defendant outlined its position regarding the then proposed second further amended statement of claim. Subject to some more minor matters that do not need to be addressed for present purposes, at that stage the Court was informed that the defendant strongly opposed the proposed amendment in paragraph 81(d) of the then proposed pleading, but otherwise did not oppose leave being granted to the plaintiffs. Paragraph 81(d) of the then proposed pleading sought to introduce a further breach of good faith claim based upon allegations regarding the formation and operation of a large working group, and an alleged pre-determination by the defendant to terminate the Licence (First Working Group Amendment). The defendant's position regarding the proposed amendments is recorded in the transcript of the 27 March 2026 hearing and need not be repeated here.

16 Orders were made at the conclusion of the hearing on 27 March 2026 requiring, among other things, the plaintiffs to inform the Court and the defendant by 30 March 2026 whether they proposed to proceed with the leave application in respect of the First Working Group Amendment.

17 By email dated 30 March 2026 the Court and the defendant were informed by the plaintiffs' solicitors that the plaintiffs proposed to press their amendment application in respect of the First Working Group Amendment (and other unopposed amendments), but stated that the paragraph 81(d) amendment had been reformulated in a further draft proposed pleading, being the Revised Proposed Claim.

18 The Amended Summons was filed on 30 March 2026 in which the plaintiffs sought leave pursuant to r 36.01 of the Rules to file and serve a proposed second further amended statement of claim substantially in the (revised) form of the pleading exhibited to the Second Ghabrial Affidavit, being the Revised Proposed Claim.

Plaintiffs' Revised Proposed Claim and the Revised Working Group Amendment

19 Paragraph 81 of the current pleading (FASOC) alleges that, in breach of the 'Implied Compliance Terms', the defendant failed to act in good faith when determining whether the plaintiffs had failed to comply with any terms and conditions of the Licence by reason of the matters specified in sub‑paragraphs 81(a), (b), and (c). Relevantly, the Revised Working Group Amendment seeks to insert a further alleged breach of good faith in proposed sub‑paragraph 81(d).

20 If permitted, paragraph 81 of the Revised Proposed Claim would then be in the following terms:[4]

1. In breach of the Implied Compliance Terms, Council failed to act in good faith when determining whether the plaintiffs had failed to comply with any terms or conditions of the Licence by reason of the following:

(a) during the time in which the Council was considering whether the plaintiffs had failed to comply with any terms or conditions of the Licence:

(i) Council had repeatedly made a number of public assurances that the plaintiffs were operating within the EPA Noise Protocols through the Compliance Confirmations;

(ii) despite the Compliance Confirmations, Council ultimately purported to terminate the Licence by relying on alleged exceedances of the EPA Noise Protocols;

The plaintiffs refer to paragraphs 49, 60, 62, 70 and 80 58, 70, and 72, and the particulars subjoined thereto.

(b) during the time in which the Council was considering whether the plaintiffs had failed to comply with any terms or conditions of the Licence:

(i) Council had repeatedly given the plaintiffs assurances through the Council Relocation Representations that the plaintiffs would be able to move the Project to the Proposed Location by mid-2023;

(ii) the anticipated move to the Proposed Location would have significantly reduced noise-related issues;

The noise related issues which the plaintiffs rely upon are the series and number of complaints that Council says it received by reason of the plaintiffs' operation at VH03. The Proposed Location was located at the western tip of the North Wharf, and was approximately 250 metres away from where the majority of residents in the Victoria Harbour were located. The Proposed Location was in a largely industrial part of the Docklands with very few residential or noise sensitive buildings in the near vicinity, which would've ensured minimal impact on local amenity; and

Additionally, given the location of the Proposed Location on the western tip of the North Wharf, the Barge would have been able to be positioned so that the majority of noise was directed out into Victoria Harbour, and away from residential buildings.

(iii) despite the matters stated above at sub-paragraphs 81(b)(i) and (ii), the Council chose to purport to terminate the Licence before allowing the plaintiffs to move to the Proposed Location.

The plaintiffs refer to paragraphs 49, 51, 60, and 62, and the particulars subjoined thereto.

Had the plaintiffs been permitted to trade from the Proposed Location, any issues relating to noise complaints would have been significantly reduced to the additional distance of the Proposed Location from residences.

Further particulars will be provided by way of expert evidence.

(c) during the time in which the Council was considering whether the plaintiffs had failed to comply with any terms or conditions of the Licence:

(i) the plaintiffs repeatedly followed any request or instruction from Council regarding noise attenuation measures;

(ii) despite this repeated compliance, Council failed to properly consider the measures and steps implemented by the plaintiffs to adhere those requests or instructions from Council.

The plaintiffs refer to the installation of the Noise Limiter, the compliance with the Noise Log Demands, and the compliance with the Background Music Demands[.]

(d) during the time in which Council was considering whether the plaintiffs had failed to comply with any terms or conditions of the Licence:

(i) Council had formed a cross-departmental working group which was tasked with finding a way to terminate the Licence (Termination Working Group);

(ii) Council had requested that the relevant minister in the State Government terminate the Licence under cl. 4.2 of the Licence, despite also stating to that Minister that Council's repeat investigations had determined the plaintiffs were complaint with all conditions in the Amended Planning Permit, including EPA noise limits.

The Termination Working Group was formed in or around March 2023, and included members of Council's planning department, legal department, and economic development department (Termination Working Group).

The Termination Working Group members included Ms Leighton, Mr Edwards, Mr Wear, and Mr Armstrong.

From around March 2023, the Termination Working Group would meet weekly or fortnightly to determine ways the Council could terminate the Licence.

On or about 12 May 2023, Council provided a Ministerial Briefing Paper to the State Government of Victoria (Ministerial Briefing Paper) in which Council stated that Council's repeat investigations had determined the plaintiffs were complaint with all conditions in the Amended Planning Permit, including EPA noise limits.

In the Ministerial Briefing Paper, Council requested the relevant Minister terminate the Licence under cl. 4.2 of the Licence.

21 I note for completeness that the proposed amendments to the particulars to paragraph 81(b)(ii), and part of the proposed amendment in paragraph 81(d)(ii) of the Revised Proposed Claim, were consented to.[5] As I have said, the Revised Working Group Amendment in sub‑paragraph 81(d) was strongly opposed.

22 The plaintiffs submitted that leave should be granted to include the Revised Working Group Amendment in the Revised Proposed Claim. Putting to one side the plaintiffs' submissions regarding amendments that were ultimately not opposed, in substance the plaintiffs' written submissions[6] included the following.

23 The relevant legal principles were addressed by reference to well-rehearsed authorities, parts of which I refer to later below.[7]

24 The plaintiffs submitted that, 'most critically', the proposed amendments would not cause any delay to the conduct of the proceeding. It was contended that the amendments would not jeopardise either the Trial Date or the length of the trial. In support it was submitted that the witnesses necessary to give evidence on what transpired will already be before the Court for the Council, being Ms Leighton and Mr Edwards. The plaintiffs contended that if any additional time was needed, that could be accommodated by the lengthening of the trial by a few hours and should not be a reason to refuse leave.

25 The plaintiffs submitted that there was no prejudice of the relevant kind which the defendant could legitimately point to in opposing the grant of leave in respect of the Revised Working Group Amendment. Again, reference was made to the witnesses to be called. It was also submitted that the Council has been aware since at least November 2025 that the plaintiffs were seeking to rely upon the Ministerial Briefing Paper and the allegations about the alleged 'Termination Working Group'. It was contended that it could not be said by the Council that it had been taken by surprise by any of the allegations, or that the Council had been prejudiced in the sense that it may have taken a different approach to the conduct of the litigation or preparation for trial, particularly in circumstances where the trial was still 'nearly three weeks away'.

26 The plaintiffs submitted that given that there would be no risk to the Trial Date then no concerns for case management can arise in any relevant sense. It was said that interests of public confidence support the granting of leave. It was also contended that the Council has 'enormous power and influence' on how businesses and residents in Melbourne conduct their daily lives, and the questions of whether the Council is properly conducting its affairs in good faith are questions of considerable public importance. The plaintiffs submitted that they should not be shut out from raising these matters simply by reason of delay, which was not going to affect the trial in any meaningful sense in any event.

27 As to the plaintiffs' explanations for delay, the plaintiffs stated that they readily accepted that the reasons for the delay in bringing the proposed amendment to the Court were less than satisfactory. These reasons were addressed primarily in the First Ghabrial Affidavit, to which I refer but need not set out its contents. It was submitted that the lack of a completely satisfactory explanation should not be a reason for shutting the plaintiffs out from running the claim the subject of the Revised Working Group Amendment, with reference being made to among other things, some observations in Aon Risk Services Australia v Australian National University (Aon),[8] and observations of J Forrest J in Ultra Thoroughbred Racing Pty Ltd t/as Baree Stud v Those Certain Underwriters at Lloyd's (Ultra Thoroughbred),[9] and emphasis being placed upon the administration of justice.[10]

28 Counsel for the plaintiffs supplemented the plaintiffs' written submissions with oral submissions recorded in the transcript of the hearing, to which I refer but will not recite. Briefly, the matters raised included the following:

1. It was confirmed that the allegations in paragraphs 81(d)(i) and (ii) of the Revised Proposed Claim are separate and distinct allegations, and that the first three paragraphs of the particulars to paragraph 81(d)(ii) are intended to be the particulars of the allegations in paragraph 81(d)(i).

2. Counsel for the plaintiffs further emphasised the (written) submissions that the trial need not be vacated, that little additional time would be needed, and that there would not be wasted costs.

3. It was submitted that the key witnesses will already be before the Court at trial and therefore there should be no need for additional witnesses, and that no irreparable prejudice had been demonstrated by the defendant.

4. It was confirmed that the plaintiffs were seeking to allege a breach of good faith by reason of: the alleged working group being formed with a purpose of finding a way to terminate the Licence; the said group being tasked with this purpose or aim at various meetings; and by the alleged working group undertaking that task at various meetings.

5. The plaintiffs' submissions regarding case management were further elaborated upon, and it was submitted that even if the Trial Date needed to be vacated, granting the plaintiffs leave to amend best served the administration of justice given the serious nature of the allegation, and the public importance of the role of the Council as a local government authority.

6. What were described as the 'Aon Factors' were addressed in a manner consistent with the written submissions, including in connection with delay, explanation for delay, prejudice, case management, wasted costs and the interests of justice.

7. Further emphasis was placed on aspects of the authorities referred to in the plaintiffs' written submissions, including the observations of Quigley J in Daldy v McLaughlin,[11] although it was properly recognised that each case depends on its own facts.

8. It was submitted that the pleading in paragraph 81(d)(i) (and its particulars set out below paragraph 81(d)(ii)) were more than adequate and gave sufficient notice to the defendant of the case to be met.

29 Counsel for the defendant relied on their oral submissions[12] which are recorded in the transcript, and to which I refer but will not set out.

30 The Court was informed that, subject to addressing some minor formatting and other matters, the other proposed amendments in the Revised Proposed Claim were consented to, with the only live issue relating to the proposed amendments in paragraph 81(d).[13]

31 In substance, the defendant reiterated the position it had articulated on 27 March 2026, with some adjustments noted in connection with changes between the First Working Group Amendment and the Revised Working Group Amendment. Other matters raised in the oral submissions included the following:

1. It was submitted that the pleading in paragraph 81(d)(i) was manifestly deficient, embarrassing, and did not give adequate notice of the claim to be met, or its basis. This was said to have occurred despite there having been four attempts at formulating the pleading, all of which were said to retain fundamental deficiencies.

2. It was emphasised that if the pleading amendment was allowed there would need to be time given to understand its nature and then investigate and respond to it, in circumstances where the existence of such an alleged working group was denied, and it was said to be impossible to engage with the 20 odd members of the alleged group given that at least 16 of the alleged members of the group were not named.

3. Heavy emphasis was placed upon the absence of any particulars of the alleged working group's alleged purpose of determining a way to terminate the Licence, the group being 'tasked' with that purpose, and how that was alleged to have been undertaken at one or more of the relevant alleged meetings.

4. It was further emphasised and contended that the pleading was relevantly vague, unclear, and deficient, and that it did not give proper notice of the claim notwithstanding it seeks to contain serious allegations against a public authority.

(1) For the purpose of -

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings -

the Court may, at any stage order that any document[14] in the proceeding be amended or that any party have leave to amend any document in the proceeding.

33 The general principles regarding applications for leave to amend pleadings in civil litigation were addressed in Business Service Brokers v Optus Mobile Pty Ltd (No 3) (Business Service Brokers),[15] which was recently cited with approval by the Court of Appeal in Dawn v Carlisle Homes Pty Ltd.[16] The relevant part of the reasons in Business Service Brokers is repeated in part below in largely identical terms.

34 The general principles relating to the grant or refusal of leave to amend pleadings are well known. They were succinctly referred to by Elliott J in Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) as follows:[17]

[31] The principles relating to the granting or refusal of leave to amend pleadings are well established.[18] Rule 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the court to grant leave to any party to amend any document for the purpose of 'determining the real question in controversy between the parties to any proceeding'. Leave may be granted at any stage of the proceeding.

[32] In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[19]

[33] The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment.[20] The nature and importance of the proposed amendments must be considered.[21] This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants that might arise if the proposed amendments are allowed.[22]

[34] Further, in exercising the power to grant leave, the court may give any direction or impose any term or condition it thinks fit.[23]

35 A helpful summary was also set out in ABL Nominees Pty Ltd v MacKenzie (No 2):[24]

[17] The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.

[18] It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[25] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[26] Gimson v Victorian WorkCover Authority.[27] The court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court's discretion.[28]

[19] As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[29] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[30]

[20] In Namberry Craft Pty Ltd v Watson,[31] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[32] as follows:

[T]here are to be limits placed upon re-pleading. The High Court in AON Risk Services Australia referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:

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

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(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.[33]

[21] This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[34] and the authorities that preceded it, including the famous case of Cropper v Smith,[35] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.

[22] On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[36]

36 In Ultra Thoroughbred,[37] J Forrest J observed that, following the High Court's decision in Aon,[38] courts must consider: the wider public interest and the efficient use of limited court resources when deciding whether to grant applications to amend pleadings; that parties will not be permitted to raise any arguable case in any stage of proceedings subject only to payment of costs; and that amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system. As his Honour noted, in Aon, the High Court said as follows:[39]

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 ...

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 the 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.

37 In Northern Health v Kuipers (Northern Health),[40] Kyrou and McLeish JJA referred to the above extract, the reasons of J Forrest J in Ultra Thoroughbred, and echoed the observations of the High Court regarding the just resolution of proceedings being a paramount consideration:[41]

It has been said by this Court that Aon may have 'reinvigorated the procedural paradigm' insofar as time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes.[42] However, as J Forrest J observed in Ultra, 'the primary question still remains: what do the interests of justice dictate?'; Aon reminds courts that 'the prism through which these interests are viewed is wider than just that of the moving party'.[43]

38 The Court must have regard to the relevant provisions of the Civil Procedure Act 2010 (Vic) (CP Act) when addressing case management matters, including applications for leave to amend. This was emphasised by Kyrou and McLeish JJA in Northern Health, where the CP Act was described as '... pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies ...', and it was stressed that '... it is important that ... trial judges engage with the Act's provisions in balancing the competing interests of the parties and those of the administration of justice more generally.'[44]

39 Their Honours were also swift to recognise that procedural rulings must often be made promptly with succinct reasons, noting that engaging with the provisions of the CP Act '... does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it ... [but that] it must be apparent from the reasons for the ruling - either expressly or inferentially - that the judge took into account the applicable provisions.'[45]

40 Subsequent to my decision in Business Service Brokers, the Court of Appeal summarised the principles to be applied in determining whether to permit an amendment to an existing defence in Baptcare Ltd v Ingpen,[46] to which I refer but will not set out.

41 As indicated above, the timing of an application to amend pleadings, and the impact that has on considerations of public interest and prejudice, is relevant to whether leave ought to be granted. An issue to which consideration must be directed is whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought, and the circumstances giving rise to the proposed amendment so that they may be weighed against the effects of any delay and the objectives of the Rules.[47] In many cases the court has refused to grant leave largely on the basis that no adequate explanation was provided for a significant delay in bringing the application, although each case of course depends on its own facts.[48]

42 Having considered the Revised Application, the Revised Proposed Claim, the relevant materials, the written and oral submissions, the history of the proceeding, the circumstances in which the Revised Application is brought, the applicable principles and observations, and the Court's and the parties' obligations under the CP Act, I have determined that leave to amend should not be given to the plaintiffs in respect of the Revised Working Group Amendment, but that, otherwise, the plaintiffs should have leave to file and serve the Revised Proposed Claim. I elaborate below as to why.

43 It is apparent that the Revised Application has been made very late. Indeed, even though the Revised Application has been heard and determined as a matter of urgency, given the impending Easter period, there are only a handful of business days before the commencement of the trial on the Trial Date. It was also common ground that relevant documents had been produced by the defendant in September 2024.

44 To the extent that it was submitted that there would be no relevant delay to the proceeding or impact upon the trial if the Revised Working Group Amendment is allowed, I do not accept that submission. The submission pays insufficient regard to the breadth and serious nature of the proposed alleged breach of good faith, which is evident from the terms of paragraph 81(d)(i) of the Revised Proposed Claim. It will be noted that it is alleged that the defendant formed the (somewhat pejoratively defined) 'Termination Working Group' to 'find a way' to terminate the Licence, and that it is alleged that there were many members of the alleged Termination Working Group that met weekly or fortnightly from around March 2023 'to determine ways' the defendant could terminate the Licence.

45 Self-evidently, if leave was granted it would be necessary for the defendant to further investigate the background to, the alleged formation of, and the relevant activities of, the people in the alleged Termination Working Group in connection with these allegations over a material period, including by reference to numerous alleged members of the working group, most of whom are not identified. I note in this regard that the First Working Group Amendment in evidence stated that the alleged working group '... originally comprised about 20 individuals across various departments and consulting organisations ...'

46 It is in my view somewhat fanciful to suggest that these matters could be appropriately investigated by the defendant, responded to, and prepared for trial in the very short period between now and the Trial Date. Allowing only such a short period for these tasks, whilst other trial preparation is ongoing, would not provide the defendant with a fair or just opportunity to investigate and respond to these serious allegations.

47 There is no persuasive force in the plaintiffs' contention that additional time should not be needed by the defendant because the issue was raised in connection with a possible amendment foreshadowed in November 2025 regarding a claim of misfeasance in public office, or because of Mr Armstrong's position, whose witness outline was filed late only a day or two ago. As the history of the proceeding reveals and records, the plaintiffs (understandably in my view) elected not to proceed with that proposed amendment, and it has never formed part of the plaintiffs' claims in this proceeding. So much is evident from the current and past pleadings, the draft amendment put forward in November 2025, and the fact that the plaintiffs now seek leave to introduce the Revised Working Group Amendment.

48 Indeed, there is no sound basis upon which it can be contended that the defendant should have been investigating, responding to, or engaging in trial preparation for false or non-issues in the proceeding. It is also hard to see how it would be consistent with the defendant's obligations under the CP Act to have acted in that way. In any event, it is apparent that, understandably, the defendant has not prepared for trial on the basis that the allegations the subject of the Revised Working Group Amendment are in issue in the proceeding. If leave was to be granted in respect of the Revised Working Group Amendment, sufficient time would need to be allowed to the defendant for investigating, responding and preparing for trial in respect of the same. This would inevitably result in the loss of the Trial Date, and in circumstances where the proceeding was fixed for trial 'not before' 14 April 2026 more than a year ago. The suggestion that little or nothing would be required by the defendant because the defendant says there was no such alleged Termination Working Group in existence is without persuasive force given the seriousness, nature, and breadth of the allegations sought to be made at this late stage.

49 Further, based on the parties' previous estimate, the trial was set down for seven days. As the material and the defendant's submissions suggested,[49] although it is apparent that trial time would increase if leave is granted, it is not possible at this stage to determine in any meaningful way the likely impact there would be on the length of the trial, the number of witnesses, or the extent of the additional evidence that may be needed if leave to amend is granted in respect of the Revised Working Group Amendment. It is again to be noted in this context that the alleged working group is alleged to have involved a number of people meeting frequently over an extended period. Given the allegations, it is at least possible, if not likely, that any additional evidence that may be required will be relevantly material, involve additional witnesses and documents, and additional evidence from existing witnesses. To the extent the plaintiffs submitted otherwise, I do not accept those submissions, particularly insofar as it was contended that it can be determined now that the impact on a trial commencing on the Trial Date will be minimal.

50 It is also self-evident from the terms and nature of the Revised Working Group Amendment that further time, cost, and delay will be involved in addressing and assessing the need for any further steps, including with respect to matters such as pleadings, the production of additional documents, meeting with potential witnesses (if and when identified), preparation of further or revised witness outlines, and/or dealing with subpoenas to produce documents or give evidence.

51 It is apparent, and was not relevantly in contest, that the Revised Application could and should have been addressed and made much earlier. So much is underscored by the inclusion of a very similar allegation in the previously proposed misfeasance claim amendment that was foreshadowed, addressed, and abandoned in November 2025. As was acknowledged responsibly by counsel for the plaintiffs, the fact that the Revised Application was not addressed earlier rests in the plaintiffs' camp, even taking into account Mr Ghabrial's evidence regarding the role of solicitors and counsel and the issue of oversight. Appropriately, the plaintiffs did not contend that any responsibility for the delay in bringing the Revised Application rests with the defendant or others.

52 It is well known and accepted by the parties that relevant case management and public resource considerations are to be taken into account on applications of this kind, including in connection with the Court's obligations under the CP Act. So much is also addressed in the principles and observations section of these reasons above. The Court has previously fixed and vacated an earlier March 2026 trial date. At that time no further amendment was foreshadowed by the plaintiffs, even though the parties expressly foreshadowed that those parts of the plaintiffs' claim that dealt with the now settled claim against the second defendant would be deleted and orders were made to allow the same to occur.[50]

53 To the extent that it was pressed, I do not accept the plaintiffs' submission that relevant questions of case management do not arise in connection with the Revised Application. As I have said, it is inevitable that if the Revised Working Group Amendment is allowed the Trial Date will need to be vacated to allow the defendant sufficient but not excessive time to investigate and respond to the new claim, and to prepare again for a later trial date. Given the closeness of the Trial Date, there are inevitably case management considerations, not the least of which is the loss of the Trial Date for a trial of some length, which also arises in circumstances where the proceeding was commenced in 2023, and fixed for trial on a 'not before' basis more than a year ago.

54 It is also the case that, given the impending Trial Date shortly after Easter, and the Court time and resources that have been set aside for the trial, it is currently at least highly unlikely that parties in another proceeding will be able to be ready to fill the 'trial gap' that will be left if the Trial Date is vacated, as is inevitable if leave to amend is relevantly granted.[51] More significantly, at this point there is no capacity to refix the trial before me or any other judge in the Commercial Court in the 2026 calendar year unless other fixed trials are vacated to accommodate this proceeding. On the material before the Court, there is no sound reason why other fixed trials should be displaced in this way given the circumstances. Having regard to the applicable principles earlier referred to and the Court's obligations under the CP Act, these matters weigh materially in the circumstances, and notwithstanding that refusing leave will result in the proposed claim the subject of the Revised Working Group Amendment not being able to be pursued by the plaintiffs against the Council as a public authority. In so observing I also take into account the plaintiffs' emphasis in this context on the public interest factor.

55 To the extent that it was suggested that there will not be wasted costs, I do not accept that submission. The trial is shortly to proceed and if the Trial Date is vacated so as to allow the defendant to deal with the Revised Working Group Amendment, it is inevitable that there will be some wasted costs in connection with, at least, aspects of duplicated trial preparation.

56 Further and in any event, given the serious nature and breadth of the proposed allegation, in my view the new claim in paragraph 81(d)(i) of the Revised Proposed Claim is not adequately pleaded or particularised. To take one important example, there is a positive allegation that the alleged working group was 'tasked with finding a way to terminate the Licence'. Self-evidently this is an allegation of material fact about the purpose and task of the alleged working group, as was appropriately confirmed by counsel for the plaintiffs during the hearing. However, the particulars do not provide any insight to, or detail about, the basis upon which it is alleged that the alleged working group had such a purpose or was so 'tasked'. Further, the allegation that the working group would meet 'weekly or fortnightly to determine ways the Council could terminate the Licence'[52] is also a broad‑based serious breach of good faith allegation of purpose and task (found in the particulars) that is similarly bereft of necessary sufficient detail. It is also not apparent on what basis it is alleged in respect of each of the relevant meetings referred to that the alleged working group was in fact seeking to determine ways to terminate the Licence at each meeting.

57 Given the seriousness and breadth of the allegations, and taking into account the asserted public importance, these are not minor matters, and they render the pleading materially defective and embarrassing in the relevant sense. They do not reveal to the Court or the defendant the true nature or basis of the case to be met, which is unsatisfactory, and unfair to the defendant. Whilst there are other pleading deficiencies in paragraph 81(d)(i), they are of a more limited significance and I will say no more about them. I also add that the result of the Revised Application would not change even if the proposed pleading had not been defective in the way referred to given the other matters addressed above.

58 On a different topic, I of course accept the plaintiffs' submission that an amendment will not be refused in order to punish or sanction a party. However, no such issue arises on this application.

59 I also accept the plaintiffs' submission that, depending upon the circumstances, and having regard to the principles and observations earlier referred to, it will not necessarily follow that leave to amend will be refused even if an explanation for delay is less than satisfactory. Rather, the existence or otherwise of, and the content of, an explanation for delay will be relevant matters to take into account, as has occurred on this application. Indeed, so much is underscored on this application by the fact that, notwithstanding the plaintiffs' acknowledgement of a less than satisfactory explanation, leave is to be granted to the plaintiffs to make all the other amendments in the Revised Proposed Claim, including: the new and substantive amendment regarding the terms and operation of clause 4.1 of the Licence; the allegation that the defendant failed to give the plaintiffs a reasonable opportunity to be heard; and the amendment in paragraph 81(d)(ii) of the Revised Proposed Claim. I add that even if these particular amendments had been opposed, I would have granted leave to amend in respect of them in any event. The alleged failure to adequately consider the relevant 22 June 2023 correspondence is already the subject of other allegations in the existing FASOC, and, as clarified by counsel for the plaintiffs, the allegation in paragraph 81(d)(ii) has been confirmed to be narrow and confined in scope and operation.

60 In all of the circumstances, and having regard to the material and the submissions, the principles and observations earlier referred to, the objects in s 9 of the CP Act, and in seeking to give effect to the overarching purpose as required by s 8 of the CP Act, I have concluded that, on the particular facts of this case, the interests of justice are best served by refusing the plaintiffs' application to include the Revised Working Group Amendment in its Revised Proposed Claim at this late stage in the proceeding. I have so concluded notwithstanding that it will preclude the plaintiffs from pursuing the proposed additional claim against the Council as a public authority.

61 For the reasons stated above, leave will not be granted to the plaintiffs to include the Revised Working Group Amendment in their Revised Proposed Claim. Subject to addressing the precise form of orders with counsel for the parties, I proposed to make orders to the following effect:

1. The plaintiffs have leave to file and serve a second further amended statement of claim substantially in the form of the proposed pleading exhibited to the Second Ghabrial Affidavit, but excluding sub‑paragraph 81(d)(i) and the first three paragraphs of the particulars to paragraph 81(d)(ii) of that proposed pleading.

2. The plaintiffs shall file and serve their further amended statement of claim by 10:00am on 2 April 2026.

3. By 4:00pm on 7 April 2026, the defendant shall file and serve any defence to the plaintiffs' second further amended statement of claim.

62 After delivering my ruling and reasons ex tempore and hearing from counsel regarding costs and consequential orders, authenticated orders were made as follows:

1. The plaintiffs have leave to file and serve a second further amended statement of claim substantially in the form of the proposed pleading exhibited to the affidavit of Anthony Ghabrial sworn on 30 March 2026, but excluding sub-paragraph 81(d)(i) and the first three paragraphs of the particulars to paragraph 81(d)(ii) of that proposed pleading.

2. By 10:00am on 2 April 2026, the plaintiffs are to file and serve their second further amended statement of claim.

3. By 4:00pm on 10 April 2026, the defendant is to file and serve:

a) any defence to the plaintiffs' second further amended statement of claim; and

b) any revised or further witness outlines addressing any of the amendments the subject of the grant of leave referred to in paragraph 1 above.

4. With respect to the costs of and incidental to the Initial Application and the Revised Application (Applications):[53]

a) subject to sub-paragraph (b) below, the plaintiffs shall pay 80% of the defendant's costs of and incidental to the Applications, to be taxed on a standard basis if not agreed;

b) notwithstanding sub-paragraph (a) above, the plaintiffs shall pay 100% of the defendant's costs of and incidental to the hearing on 1 April 2026, to be taxed on a standard basis if not agreed;

c) otherwise, the defendant's costs of and incidental to the Applications shall form part of the defendant's costs in the proceeding; and

d) the plaintiffs shall bear their own costs of and incidental to the Applications.

5. The directions hearing is adjourned to the first day of trial at 10:30am on 13 April 2026.

6. There is liberty to apply.

[1] Which was an understandable and appropriate position for the defendant to take.

[2] Due to the lateness of the application and the necessity for the matter to be urgently heard, I informed counsel for the defendant on 27 March 2026 that it was not necessary for the defendant to file a written submission if that was not going to be achievable in the timeframe.

[3] As was responsibly acknowledged by counsel for the plaintiffs, but noting also that the defendant had also missed some deadlines but had not been as dilatory as the plaintiffs.

[4] The proposed amendments for this application are shown as being double underlined.

[5] The consent to paragraph 81(d)(ii) was on the basis that the only particulars to be relied upon comprised the last two paragraphs of the particulars to paragraph 81(d)(ii), which counsel for the plaintiffs confirmed.

[7] Plaintiffs' written submissions [6]-[10].

[9] [2011] VSC 370.

[10] Submissions were also made regarding the application for leave to file and serve the 'Armstrong Witness Outline' out of time, but these need not be referred to as this issue was addressed and determined at the directions hearing on 27 March 2026. Leave was granted to the plaintiffs to file this witness outline out of time, but noting that the evidence in chief in the proceeding is to be given orally and will be subject to any valid objections, including as to relevance.

[11] [2020] VSC 808.

[12] And their position as stated at the directions hearing on 27 March 2026.

[13] Which late in the hearing reduced to only the Revised Working Group Amendment .

[14] The inclusive definition of 'document' in r 36.01(2) includes a pleading.

[15] [2022] VSC 283, [23]-[31] (Connock J), and also recently addressed in Mould v GW & R Mould Pty Ltd [2025] VSC 760, [47]-[56] (Connock J).

[16] [2025] VSCA 58, [137] (Niall CJ, Emerton P and Gray AJA).

[17] [2018] VSC 772, [31]-[34] (Elliott J).

[18] The relevant principles have been set out previously in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10) [2018] VSC 439, [16]-[18]. They are repeated here for convenience.

[19] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 204-205 [69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSCA 529, [17] (Derham AsJ).

[20] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [96], 213 [98]-[99], 217 [111].

[22] Ibid 213 [98]-[99], 214-215 [102], 217 [111]; Civil Procedure Act 2010 (Vic) s 7.

[23] Supreme Court Rules, r 1.14(1)(b).

[24] [2014] VSC 529, [17]-[22] (Derham AsJ).

[26] [1939] NSWStRp 35; (1939) 39 SR NSW 305, 310.

[27] [1995] VicRp 14; (1995) 1 VR 209, 215.

[28] Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].

[29] [2012] VSC 70, [34].

[30] As to the test, see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).

[31] [2011] VSC 136.

[33] Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].

[34] [1997] HCA 1; (1997) 189 CLR 146.

[35] (1884) 26 Ch D 700.

[36] ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, [28].

[37] [2011] VSC 370.

[39] [2011] VSC 370, [7] (J Forrest J), citing Aon (2009) 239 CLR 175, 217, [111]-[113].

[40] [2015] VSCA 172. See also the recent references to Aon and Northern Health by the Court of Appeal in Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25]-[26] (Beach, Kaye JJA and Croucher AJA) (Billington).

[41] [2015] VSCA 172, [33] (Kyrou and McLeish JJA), footnotes included as in the original.

[42] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [42].

[43] Ultra Thoroughbred [2011] VSC 370, [9] (Kyrou and McLeish JJA).

[44] Northern Health [2015] VSCA 172, [22] (Kyrou and McLeish JJA). Considerations of this kind were further referred to in Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 [36]-[48] (Kyrou, Ferguson and McLeish JJA), and more recently reinforced in Billington at [25] (Beach, Kaye JJA and Croucher AJA).

[45] Northern Health [2015] VSCA 172, [22] (Kyrou and McLeish JJA).

[46] [2022] VSCA 250, [37]-[40] (Macaulay JA and J Forrest AJA).

[47] Aon, [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Ultra Thoroughbred [2011] VSC 370, [8(f)] (J Forrest J); Northern Health [2015] VSCA 172, [28] (Kyrou and McLeish JJA); Carroll v Goff [2021] VSCA 267, [75] (Maxwell P, Kennedy and Walker JJA).

[48] See, for example, Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199, [2016] FCAFC 2, [114], [128], [129] (Gilmour, Perram and Beach JJ); Goodrich v Kilmore Racing Club Inc [2022] VSC 803 (McDonald J); Tinworth v WV Management Pty Ltd [2009] VSC 552, [34]-[37] (J Forrest J); Greensill v Piper Alderman & Ors [2022] VSC 622, [32] (J Dixon J).

[49] And part of the plaintiffs' submissions.

[50] Which were not complied with by the plaintiffs in any event.

[51] Although no different result would follow if this consideration is put to one side.

[53] Which were defined in the 'Other Matters' section of the authenticated orders to be the applications by summons filed 25 March 2026 and amended summons filed 30 March 2026.