An application to adjourn the argument
18 When this matter was called on for argument on 14 June 2022, Mr Ower QC sought leave to appear without instructing solicitors for the purposes of applying to adjourn the argument. The applicant opposed the adjournment. The proposed respondents neither consented nor objected to the adjournment application.
19 I granted Mr Ower QC leave to appear to make the application for an adjournment of the argument.
20 Mr Ower QC explained during the course of his application that his clients were unable to comply with the programming orders that I had made on 25 May 2022 due to the conflict of interest between the proposed respondents and Ms Martin and Nordburger.
21 Ms Martin and Nordburger made their application for an adjournment on three grounds:
(1) The factors in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 had not been made out;
(2) A document that been exhibited to the eighth Hillier affidavit which may be the subject of legal professional privilege, a matter which Ms Martin and Nordburger may seek to have taken into account on any application for joinder; and
(3) The prejudice to the respondent in proceeding with the argument.
22 As to the first of those grounds, being the factors in Aon Risk Services Australia Ltd French CJ said in relation to an application to amend a statement of claim close to trial at [34]-[35]:
34. … A court faced with a late amendment seeking to raise new claims and the in terrorem prediction that a multiplicity of proceedings may follow if the amendment is not allowed, is entitled to have regard to the barriers to the implementation of suggestions of that kind.
35. It might be said that the adjournment effected by the primary judge's decision to entertain the amendment application and to allow written submissions to be filed and evidence to be put on, and the subsequent delay in his decision, rendered academic any concern about further waste of court resources or inefficiencies flowing from the amendment ultimately being allowed. It might be said that, in those circumstances to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice. This factor was not taken into account by the primary judge, nor by the Court of Appeal. The discretion of the primary judge miscarried and the Court of Appeal was in error in not allowing the appeal. In the circumstances, giving proper weight to the factors to which I have referred, the application for the amendment should have been refused.
23 In a joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ, when considering the objectives of case management and the purpose of the court's rules in question, which have as amongst their objectives the timely disposal of proceedings at an affordable cost, said at [98]-[99]:
98. Of course, a just resolution of proceedings remains the paramount purpose of r 21 but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment.
(Citations omitted)
24 In the eighth Hillier affidavit, Mr Hillier deposes that a consideration of documents known as the "William Buck brief", annexed to the affidavit of Mr Thomas Patrick Martin sworn and filed 11 March 2022 (Thomas Martin affidavit), allows the conclusion that Mr Williams was aware of certain matters and that Mr Hillier's review allows for a proper pleading to the effect that Mr Williams and Norman Waterhouse provided assistance to Ms Martin to effectuate what is referred to in the proposed pleading as a "Plan": eighth Hillier affidavit [34]-[35].
25 I deal with the proposed pleading later in these reasons, however it is clear from the eighth Hillier affidavit that part of the material which led Mr Hillier to make to this application, being the "William Buck brief", was not available to him until at the earliest 11 March 2022. Further, it was not until 21 March 2022 that Mr Hillier had access to the Xero database. Mr Hillier deposes that access to the Xero database allowed him to reach various conclusions about Nordburger's financial circumstances, including payments made to Ms Martin and her associates: eighth Hillier affidavit [26]-[31].
26 Consideration of the type of action sought to be raised by the applicant in these proceedings in their proposed amended statement of claim reveals that, if appropriate, joinder of the proposed respondents was both necessary for the efficient and timely resolution of the proceedings. Joinder of the proposed respondents, if appropriate, would also avoid a potential multiplicity of proceedings and remove the possibility of inconsistent findings between different courts.
27 Had Mr Hillier been on notice of the potential for a Barnes v Addy cause of action and/or had received the documents in the Xero database some time prior to receipt of Mr Martin's affidavit, then there may well have been force in Mr Ower QC's submissions that the interlocutory application should not be considered given the proximity of the trial and in view of the matters set out by the High Court in Aon.
28 However, given the late access to information provided by the respondents to Mr Hillier and the consequent lack of any opportunity to consider and plead appropriately not only the cause of action now contemplated but also the joinder of the proposed respondents, I did not accept the first and second respondents' first ground advanced in support of the application to adjourn the argument.
29 The second ground concerned a document apparently in the possession of the applicants which may have been the subject of legal professional privilege. That document is an email dated 29 April 2016 which is the subject of [34.5] of the eighth Hillier affidavit but was not read by the applicant at the hearing of the application. The email is, however, the subject of the proposed fourth amended statement of claim (4ASoC).
30 As I understand the submission made by the first and second respondents, the email dated 29 April 2016 is a document that should not be relied upon and that they sought time to investigate the provenance of the document.
31 I do not accept that submission. The issue on the interlocutory application is the joinder of the proposed respondents and leave to file the 4ASoC. If such an order is made, there will be an opportunity to address any questions of legal professional privilege and the impact on any pleading, assuming that leave is granted to amend in the form of, or substantially in the form of 4ASOC, in the near future.
32 The third ground concerned prejudice to Ms Martin and Nordburger. That prejudice was not clearly identified but again, as I understand the submission, they sought an opportunity to allow them to instruct new solicitors.
33 That submission should be rejected for the following reasons. First, Ms Martin and Nordburger had been on notice since on or about 16 May 2022 of this application. It was abundantly clear that it was inappropriate for the proposed respondents to continue to act for Ms Martin and Nordburger under those circumstances yet no steps have been taken to instruct alternative solicitors.
34 Second, it was not until Friday 10 June 2022 that Mr Williams gave notice under FCR 4.05 of his intention to cease acting for the first and second respondents. There is no satisfactory explanation for the delay, at least no affidavit evidence has been filed and served deposing as to the reasons for the delay.
35 Third, no submission was put as to why it is that Ms Martin and Nordburger seek to be heard about the joinder of the proposed respondents. I can understand opposition to joining the proposed respondents on the basis that the trial will be adjourned and that it is too late for such an amendment, however that is not what is put. Rather, an adjournment of some four weeks was sought to allow for new solicitors to be retained, but the purpose of instructing new solicitors on this application was not explained.
36 In the circumstances, I refused the application for an adjournment of the argument and proceeded to hear the matter. I granted Mr Ower QC leave to withdraw at the conclusion of the application to adjourn the argument.