MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd

County Court of Victoria|2016-08-10|Before: Mr J

1 The issue in this application is whether the plaintiff ("Tripodi") should be granted leave to amend its amended statement of claim to include an alternate claim for damages for loss of opportunity.

2 Tripodi has its roots in a long-established family farming business near Swan Hill. The current director of Tripodi is Michael Tripodi ("Michael"). His grandfather came to Australia in about 1938. The grandfather began the farming operations at Lake Boga, which were later taken over by his son, Michael's father. Michael, after living in Melbourne for about eight years, returned to the family farm in about 1992 and farmed in partnership with his father for about seven years.

4 While the primary focus of the farm remains stone fruit, in about 2010, Michael and Jina decided to diversify the business and bought an additional 300 acres intending to use approximately one-third to grow fruit for export and the balance to grow other crops. After conducting a trial of growing borlotti beans on black mulch plastic, Michael and Jina decided to expand this production. Tripodi bought machinery to pick and process the borlotti beans crop and leased approximately 200 acres from Craig Burrell ("Burrell") to grow the borlotti beans.

5 The defendant ("SHC") conducted business as a supplier of chemicals and other materials commonly required by farmers in running their farms.

6 Tripodi alleges that Michael had relied on advice and guidance from SHC since about 1992 in what chemicals to use in the production of the stone fruit, whether it be fertilising the soil or protecting the fruit trees from pests, insects or fungus. As a result, Tripodi spent substantial sums of money each year with SHC on herbicides, pesticides, insecticides and other chemicals. Part of the service which SHC offered was frequent attendance at the Tripodi orchard to monitor the health of the trees.

7 Tripodi says that when it decided to grow borlotti beans commercially, it sought advice from SHC about the appropriate chemicals to use to protect the crop. Tripodi claims that the chemicals recommended by SHC were not suitable for the task. Some chemicals allegedly killed the bean plantings. In other plantings, due to the apparently deadly effect upon the crop, Tripodi used no pre-emergent herbicide and the plantings were said to have been overwhelmed by weeds. Ultimately, only some of the borlotti beans plantings were successful and produced a good crop of beans. As a result of the problems experienced due to the conduct and advice of SHC, Tripodi says that it suffered substantial losses. Tripodi says that it was unable to honour supply agreements with Woolworths and lost approximately $4.2 million. This includes past and future losses.

8 SHC denies that it advised Tripodi that the pre-emergent herbicides it used were suitable. The primary SHC person who dealt with Tripodi was Brian Cumming ("Cumming"). Cumming says he informed Michael that there was no authorised herbicide in Victoria for use with borlotti beans and it would be best to do a trial before spraying a whole crop. SHC also disputes that the pre-emergent herbicides used were responsible in a legal sense for the demise of parts of the crop. SHC says that the "summer death" virus was the responsible agent for much of the losses suffered and, if plantings 1 and 2 had survived the pre-emergent herbicides, the virus would probably have destroyed those plantings in any event. SHC says that the person who supplied the seed to Tripodi warned Michael to be wary of the summer death virus. As a result, SHC contends that regardless of the pre-emergent herbicide used, the bean crops would have fared badly due to the summer death virus.

9 SHC also contests the quantum of the claim. It denies that there were contractual arrangements in place between Tripodi and Woolworths whereby Tripodi agreed to sell, and Woolworths agreed to buy, a particular quantity of beans at a particular price - whether it be $13.20 per kilogram or some other price. That assumption is said to be without any foundation. SHC submits that Woolworths required Tripodi to demonstrate its reliability by supplying green shelled peas on a consistent basis. Only if this trial product performed successfully, would Woolworths contemplate ongoing commercial dealings with Tripodi for the sale of borlotti beans.

10 SHC also contends that there is no factual or legal basis for the plaintiff's claim that the defendant should be liable for losses sustained in respect of growing seasons as far away as 2017 and 2018.

11 On the second last day of the trial, after the completion of the evidence, SHC made its final submissions. During the afternoon, junior counsel for the plaintiff began final submissions on behalf of Tripodi. On the morning of the last day of trial, junior counsel for Tripodi applied to further amend the amended statement of claim to include the following:

7A Further and in the alternative to paragraph 7, the Plaintiff had an opportunity to see its Borlotti Beans to Woolworths Supermarkets and made a commitment to and/or provided an opportunity to the Plaintiff to sell to Woolworths Supermarkets the Plaintiff's range of freshly shelled legumes including Borlotti Beans when they became available.

PARTICULARS

The commitment was oral and given at a face to face meeting held 3 July 2012 between Tony Klatt and Mario Saad of Woolworths and Michael and Jina Tripodi and Lisa Cork of the Plaintiff and in a subsequent telephone conversation between Michal Tripodi and Tony Klatt.

The substance of the commitment was the Woolworths would purchase the whole range of freshly shelled legumes, including Borlotti Beans, of the Plaintiff when they became available.

The commitment is confirmed in the evidence of Tony Klatt at Transcript pp 365 L 18-23, 366 L 13-22, 368 L 1-2, 371 L2-15, 359-362, 368 L 23-28, 377 L 24-27, 379 L 2-17 and also in an email dated 18 July 2013.

7B By reason of the actions of the Defendant summarised in paragraph 50 herein, the Plaintiff lost the opportunity to supply Borlotti Beans to Woolworths Supermarkets and suffered loss and damage.

PARTICULARS

The loss and damage suffered by the Plaintiff is set out in two reports of Bruce Wilkinson's reports dated 11 August 2015 and 9 October 2015 respectively.

12 Counsel contended that if the court were not satisfied that there was a binding contract between Tripodi and Woolworths, then as an alternative, Tripodi had lost the opportunity to sell its borlotti beans to Woolworths as a result of the negligence of SHC. He noted that the evidence already given in the trial, in particular by Anthony Klatt ("Klatt") , Mario Saad ("Saad") and Christopher Chase ("Chase") from Woolworths, showed the loss of opportunity and the evidence was equally applicable whether there was a claim for the loss resulting from the failure to fulfil the contract with Woolworths or the loss of opportunity to enter such a contract. Also, he contended that the evidence of Tripodi's expert, Wilkinson, set out the loss which flowed if there were a contract. If the court found that there was no contract, then he submitted that the court would apply discount factors to assess how much of that loss Tripodi ought recover.

13 Counsel submitted[1] that there was no other evidence which needed to be given, at least from the viewpoint of the plaintiff. He contended the overriding consideration was that the real matters of controversy between the parties ought to be determined, provided there was no irreparable harm. He repeated that there was no requirement for further evidence[2] and that the parties could simply provide the court with further written submissions regarding the amendment issue.

14 Counsel for SHC made some submissions in court to the effect that before the court even considered Tripodi's application, Tripodi, as the moving party, ought to provide affidavit evidence setting out the reasons for the delay in making such an application and explaining the position. He also contended that, having regard to cases such as Sellars v Adelaide Petroleum NL[3] the court had to assess various contingencies which the plaintiff would face on a loss of opportunity claim and decide whether Tripodi had lost an opportunity to achieve the benefit claimed. Counsel also indicated that if Tripodi were allowed to amend, then SHC reserved the right to re-open its case, recall witnesses for cross-examination and lead further evidence.

15 Having heard these relatively brief submissions, I directed that Tripodi should continue with its final submissions but that the parties have a further opportunity to put material before the court. I directed that Tripodi file and serve anything further by 4.00pm on Friday, 29 July 2016 and SHC file and serve anything further by 4.00pm on Tuesday, 2 August 2016.

16 On 1 August 2016, Tripodi filed further submissions, together with an affidavit by the plaintiff's instructing solicitor explaining the reasons for the delay in making the plaintiff's amendment application.

17 On 4 August 2016, SHC filed an affidavit from the defendant's solicitor together with written submissions. The affidavit material addressed an aspect of the plaintiff's affidavit, the conduct of the litigation, the further evidence which the defendant would seek to adduce if the amendment were allowed and the financial position of Tripodi.

18 Later on 4 August 2016, the plaintiff's solicitor filed a responsive affidavit disputing various assertions made in the defendant's solicitor's affidavit.

19 After the parties filed their further material, neither of them approached the court seeking to cross-examine any deponent of the newly served affidavit material or to make any further submissions.

20 Whether or not to grant a pleading amendment is a discretionary decision in the sense that no single consideration and no combination of considerations is necessarily determinative of the result. The judge has some latitude about choosing which decision to make.[4]

21 Whereas at one time courts were quite liberal about allowing pleading amendments, at least where the inconvenience to the other party could be mollified by a costs order, the position has changed in recent years. The altered attitude is reflected partly by the introduction of legislation like the Civil Procedure Act 2010 (Vic) ("the CP Act") and partly by the approach now taken by the courts as reflected in decisions such as Aon Risk Services Australia Limited v Australian National University.[5]

22 A main purpose of the CP Act was to reform and modernise the law's practice, procedure and processes relating to civil proceedings in Victorian courts. Another main purpose was to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[6] The CP Act sets out its overarching purpose and section 8 requires that courts give effect to the overarching purpose in the exercise of any of its powers or the interpretation of those powers.

23 Hence, in making any order or giving any direction in a civil proceeding, the court is to further the overarching purpose by having regard to various objects including the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources and the timely determination of the civil proceeding.[7]

24 In Aon, in December 2004, the Australian National University commenced proceedings in the Supreme Court of the Australian Capital Territory against three insurers seeking indemnity for losses suffered by reason of damage to buildings and their contents. In June 2005, the University joined as a defendant its insurance broker, Aon Risk Services Australia Limited, and claimed damages based on Aon's failure to arrange the renewal of insurance over some of the property as an alternative to its claim against the insurers. Two of the insurers claimed in their defences to be entitled to reduce their liability to the University because the value of the property had been substantially understated by the University.

25 On 15 November 2006, the third day of a four week trial, the University settled its claims against the insurers and consent judgments were subsequently entered. The University then applied for an adjournment of the trial and leave to amend its Statement of Claim to add a substantial and new claim against Aon based on allegations that Aon had been obliged to ascertain and declare the correct value of the property to the insurers and to provide certain advice to the University.

26 On 12 October 2007, Gray J granted the University leave to amend. The High Court, reversing the decision of the Court of Appeal of the Australian Capital Territory Supreme Court, held that he was wrong to permit the amendment.

27 The judgments made the point that in considering how to deal with amendment applications, there is a variety of matters to which the court can properly pay regard: the extent to which allowing the amendment would waste the public resource of the court and its officers; the strain and uncertainty on litigants; the potential for loss of public confidence in the judicial system; the scope for delay and the effect on other litigants.

28 Courts have now decided that achieving the just, timely and cost effective resolution of disputes is a matter of public interest to the court and other litigants and is not confined solely to the parties in the subject action.

29 The Victorian Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe said:[8]

"As we construe Aon, it was about the impropriety of granting a party leave to make a late amendment to a pleading, in circumstances where that party had failed to act expeditiously, and where to allow the amendment was likely to be productive of wasted costs and resources. More generally, Aon may be thought to have re-invigorated the procedural paradigm, to some extent and for some time diminished by J L Holdings, that time, costs and limited judicial resources are relevant considerations in the determination of whether to allow late applications for amendment and invoke other interlocutory process."

30 Aon made clear that 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 allow amendment should be weighed up. The fact of substantial delay and wasted cost and the concerns of case management will assume importance on such applications.

31 The judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon commented that:[9]

"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 parties having a sufficient opportunity to identify the issues they seek to agitate."

32 The applicable rule for considering amendment applications is Rule 36.01(1) of the County Court Civil Procedure Rules 2008 (Vic) , which provides as follows:

"For the purpose of:

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

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

(c) avoiding multiplicity of proceedings;

a court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding."

33 In this context, "document" includes originating process, indorsement of claim and a pleading.

"Any question, issue or matter for determination by the court, whether a fact or law or a fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the court, by any party or by any person not a party who has a sufficient interest."

35 The words "the real question in controversy" refer to a question which is not necessarily raised by the existing pleadings. A question which is not raised by the pleadings may be put in controversy, that is, become a "real question" so as to enliven the jurisdiction of the court to allow a pleading amendment to raise the question either by a party or the court of its own motion.[11] The Court of Appeal in Etna v Arif[12] adopted a reasonably broad view of what constituted the real question in controversy. It need not be something explicitly agitated or confined to the existing pleadings. It is enough if it forms part of the underlying dispute between the parties.[13]

36 Here, I consider that the issue sought to be raised by the amended pleading is part of the real question in controversy because it goes to the damage which Tripodi suffered if it is entitled to recover from SHC for its alleged negligence. Further, the proposed amendment will avoid the need for another action where this point regarding damage might be argued. The limitation period has not expired, so in theory Tripodi could make another claim. In saying this, I recognise that Tripodi faces a risk that SHC could raise arguments about abuse of process and estoppel based on cases such as Henderson v Henderson[14] and Port of Melbourne Authority v Anshun Pty Ltd.[15]

37 I turn now to examine the factors which can be weighed in deciding how to exercise the court's discretion with respect to amendments. The factors, as drawn from the decision of the High Court in Aon are as follows:

(a) whether there will be substantial delay caused by the amendment;[16]

(b) the extent of wasted costs that will be incurred;[17]

(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;[18]

(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 inefficiency as arising from the vacation or adjournment of trials;[19]

(e) whether a satisfactory explanation has been given for seeking the amendment at the stage when it was sought;[20] and

(f) whether the grant of the amendment will lessen public confidence in the judicial system.[21]

38 This list of factors referred to in the Aon judgments is not exhaustive. Ultimately, all matters arising in any particular case which are relevant to the exercise of the power should be taken into consideration.

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

39 If the amendment is allowed, there will be a substantial delay. The listings in this court are such that, at this point, the earliest the case could be resumed is late February or early March 2017. At that time, the defendant indicated that it would seek to cross-examine the witnesses it wants to recall and to lead the extra evidence which, by reason of the way in which Tripodi framed its case, was not necessary or relevant earlier.

40 The delay is unsatisfactory for the parties and the court. It further postpones the completion of the case and, more importantly, the judgment. Granting the application to amend means the parties will have to return to court next year. Thus, the parties, the relevant witnesses and legal representatives will have to reacquaint themselves with the details of the case and reassemble in court to conclude it. Whatever the result of the trial, it is in the interest of all parties to have a result as soon as possible. This is especially so in a case which commenced in 2013. It is very unusual for a case in the Commercial Division of this court to extend over four years. I could readily imagine that the commercial uncertainty attaching to the litigation does not assist either party in its business operations and forward planning.

41 The judgment too becomes much more burdensome for the judge because, instead of writing a judgment soon after completion of the evidence and submissions, there is a lengthy break between July 2016 and February/March 2017, after which the judge has to re-familiarise himself with the details of the case. By that time, the case will have a likely duration of between three and four weeks. Unlike the position in other courts, the pressure of work in the Commercial Division of this court is such that it is impossible for a judge in the Division to be out of court for two or three weeks writing a judgment.[22] Thus, the delay places significant and unnecessary pressure on the trial judge, which can, in turn, affect his capacity to deal with the demands of other litigants.

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

42 At present, it seems that the extent of wasted costs will be limited. This is not a situation in which Tripodi had run its case on a particular basis, which it has now abandoned, and sought to replace it with an entirely different case. On that scenario, the parties could find that the trial and much of the interlocutory work is totally wasted because the former claims or causes of action are dropped and the plaintiff creates wholly new issues which need to be addressed. In effect it means the case begins again, and the defendant is forced to deal with the new and different allegations which the plaintiff has now decided constitute the basis of its case.

43 Here, Tripodi is seeking to allege an alternate basis for its damages claim. Previously, Tripodi, during its opening, the conduct of the trial, and its written closing submissions, operated on the basis that there was a contract between itself and Woolworths which, by reason of SHC's negligence, Tripodi was unable to honour. It now seeks to contend that if there were no contract, Tripodi's damages are the loss of opportunity to enter into and obtain the benefit of such a contract with Woolworths. To that extent, Tripodi is seeking to run an additional point rather than to entirely abandon its previous case and substitute it in full with a new one. Because the evidence already given remains relevant I attach less concern to SHC's point about the ability of Tripodi to meet an order for costs.

44 It is noted that Tripodi has said that it will not be calling any further evidence in support of its claim if the amendment is allowed.

45 Tripodi contends that it is simply a matter of allowing the amendment, and, if necessary, any extra time to permit further argument on the merits of the point. This represents an oversimplification of the matter. As noted, SHC wants to adduce further evidence before making submissions on the new issue. To that extent, the conduct of the litigation will become more expensive due to the extra time and cost of the additional work.

46 If the Tripodis' amendment is allowed, it would be appropriate to grant it on terms that SHC be permitted to re-open its case, recall witnesses for cross- examination and lead further evidence. In the affidavit sworn by the defendant's solicitor, he identified matters which SHC would seek to investigate and pursue:

• the capability of Tripodi's processing line during the period from about January 2013 - May 2014 to produce shelled beans for sale to Woolworths;

• the existence of any problems affecting the processing and packaging equipment;

• evidence from an expert about issues affecting the production and packaging of legumes and their potential impact upon Tripodi and Woolworths;

• evidence from representatives from Woolworths about the product specification for such beans, the nature and extent of the trial process for the bean supply and the extent of dumping of pea stock; and

• the financial position of Tripodi and whether it could have afforded to grow beans either at all or in sufficient quantities to satisfy Woolworths in and after 2013.

47 From the affidavit and submissions, I understand the general basis for SHC's submissions and consider that its request to explore such matters is reasonable and logically connected to the additional claim which Tripodi seeks leave to advance.

(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

48 There is an element of prejudice caused to SHC if the amendment is allowed. Tripodi ought to have made any such amendment application much sooner than it did. This proceeding began in August 2013. The trial was first listed for hearing on 28 May 2014. By consent, that trial was vacated and the trial was refixed for hearing on 14 October 2014, then 15 April 2015, and then 15 September 2015. Finally, by Orders of Judicial Registrar Tran made on 2 September 2015, the matter was refixed for trial on 11 July 2016. Hence, this is the fifth trial date allocated to the matter.

49 As noted by McHugh J in Brisbane South Regional Health Authority v Taylor,[23] there is always a risk of prejudice in delay. It can exist without parties being aware of it. On occasion, important and possibly decisive evidence will have disappeared without anyone knowing that it ever existed.

50 It is beyond argument that Tripodi has had ample opportunity to amend its claim. This is especially so in circumstances where, on the first morning of the trial during Tripodi's opening, I raised with senior counsel for the plaintiff whether the claim was based on a claim of contract or a loss of opportunity. Counsel said it was the former, not the latter. The trial proceeded on that basis until the final day of trial when the amendment issue was raised. Further, if the reason for the application were Klatt's failure to swear up in court to his proof of evidence, there was no explanation of why the application was not made until 28 July 2016 when Klatt gave evidence on 15 July 2016.

51 In his affidavit Eric Vadarlis ("Vadarlis"), the plaintiff's solicitor, advised that the plaintiff no longer had an item of the processing and packaging machinery, namely, the Multivac Thermoformer. It is not apparent when Tripodi last had the machinery in its possession or where it has gone, or why. To the extent that this component of the plant is no longer in the possession of Tripodi, SHC will probably be at some disadvantage because it may well not be able to inspect and test the machine. I accept that the operational efficiency and reliability of the Tripodi processing and packaging machinery is important in the context of a loss of opportunity claim. Given some of the problems which Tripodi experienced in supplying Woolworths with packaged peas which met the quality and presentation criteria specified by Woolworths, the performance of the machinery represents a major contingency in affecting whether Tripodi could have honoured a borlotti bean supply agreement with Woolworths.

52 I also note that the absence of the equipment is a problem for Tripodi as well. It has to prove it was capable of fulfilling a contract with Woolworths to recover on the loss of opportunity claim.

53 At present, this inability to examine and test equipment is the only specific item of prejudice affecting SHC's defence to the proposed amendment. While it is relevant, I do not consider that it is so significant as to constitute a reason to disallow the amendment.

54 In dealing with the issue of prejudice, I note that even if by allowing the amendment, SHC might be deprived of a successful outcome which would be achieved if the amendment were not allowed, this is not a relevant form of prejudice for the purposes of the application.[24]

(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 inefficiency as arising from the vacation or adjournment of trials

55 Plainly, the application takes up the time of the court and, if allowed, extends the trial and occupies time and resources which would otherwise be allocated to other litigants. The effect on other litigants is reduced, perhaps, by adjourning the trial to a time at which no other matters are currently listed.

(e) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it was sought

56 On the day it made the application in court, Tripodi gave no explanation to the court about why it delayed until during final address to make the amendment application. As a result, the court was uncertain whether the failure to plead loss of opportunity was an oversight by the parties' legal representatives or a considered decision and whether the client had a role in the decision or whether it was driven purely by the lawyers. The court knew nothing of why the application was brought so late. This was extremely unsatisfactory and was contrary to common practice where a party seeking to amend explains the relevant circumstances to the court on affidavit.

57 However, on 1 August 2016, Tripodi filed the affidavit by Vadarlis, in which he explained that, based on Michael Tripodi's instructions, there was an agreement between Tripodi and Woolworths to supply freshly-shelled legumes including borlotti beans. Vadarlis sent a solicitor to Sydney to take a statement from Klatt about relevant matters. Klatt's proof of evidence was said to confirm the agreement. However, Vadarlis said that Klatt's oral evidence in court left room for doubt about the existence of a contract. After the evidence of Saad and Chase, which concluded on about 20 July 2016, Vadarlis said that it became apparent to Tripodi that a claim based on loss of opportunity might be more appropriate than the existing claim based on a binding contract.

58 The Vadarlis affidavit did not address some of the more equivocal statements in Klatt's proof of evidence. Nor did it address some of the other evidence in the case which suggested that it was ambitious or an exaggeration to claim the parties had entered into a binding agreement. Although the Vadarlis affidavit provided an explanation of Tripodi's position, its omissions meant that it was not particularly compelling or persuasive. There was no cross-examination so one cannot be definitive. But I suspect the reassessment of Tripodi's position was prompted partly by the defendant's closing submissions, and partly by the lawyers' realisation that this alternate claim should have been included. I am at least satisfied that the failure to plead loss of opportunity was not a deliberate tactical decision from which Tripodi now seeks to resile.

(f) Whether the grant of the amendment will lessen public confidence in the judicial system

59 In this case, the grant of the amendment might reduce public confidence in the judicial system inasmuch as it would appear that a party can, at almost the conclusion of a proceeding, raise a new issue which it expressly repudiated earlier in the hearing. However, the public can also see that the courts seek to do justice by assessing the merits of particular applications.

60 Other cases about the exercise of the discretion are of limited utility because they will be governed by the circumstances of the particular case. As noted before, courts previously adopted a liberal approach to amendment consistent with the views of Bowen LJ in Cropper v Smith[25] and Bramwell LJ in Tildesley v Harper.[26] There are other cases in which the court has disallowed late amendments. For example, in Ting v Blanche,[27] Hill J refused an application to amend which the plaintiff made after the evidence was closed and the parties had filed written final submissions. The plaintiff wanted to amend the representations alleged in a claim for misleading and deceptive conduct so that they better conformed to the evidence given in the case. His Honour refused the application because it was too late and required the re-opening of the evidence in the case. His Honour said that the case had been run on a particular set of allegations and the defendant should not have to face a new set of allegations. He said the court was entitled to have regard to the public interest in the finality of litigation and to the private interests of the parties in trying to do justice between them. In the circumstances, it was simply too late to amend. Hill J reached this view in full knowledge that, because the plaintiff had failed to prove the defendant made the misrepresentations alleged in the statement of claim, the plaintiff's case would inevitably be dismissed.

61 The ultimate aim of any court is the attainment of justice. This must be the primary guide for any judge. In the circumstances of this case, making due allowance for the requirements of sections 7 - 9 inclusive of the CP Act, and after weighing the competing considerations discussed in Aon and other cases, I consider that the interests of justice are best served by allowing Tripodi to amend its claim.

62 I have reached this conclusion for the following reasons.

63 First, while the amendment application is late, it seeks only to add an alternate claim for damages and does not abandon or render irrelevant the claims and evidence already canvassed at trial.

64 Secondly, Tripodi does not propose to call any further evidence and this will reduce the inconvenience and cost associated with the amendment.

65 Thirdly, to the extent that the decision to omit this alternate damages claim from the original claim was made by the lawyers, and not the client,[28] courts on occasion choose to spare clients the consequences of the decisions or conduct of their legal representatives and do not limit the client to a claim against its lawyers.[29]

66 Fourthly, although the grant of the amendment will undoubtedly cause SHC to incur more cost and expense in pursuing new points which were not previously relevant, I do not consider that SHC faces any irreparable prejudice so great as to warrant the refusal of Tripodi's application.

67 Finally, if Tripodi is not permitted to raise its claim, it faces a significant risk of irreparable harm, namely, its case might otherwise fail.

68 I will hear the parties on the form of order and costs and any consequential orders.

[2] I assume from the plaintiff at T948/4-6.

[4] See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] quoted by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services

Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [89].

Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [112].

[11] See Williams' Supreme Court Practice paragraph 36.01.15

[13] Ibid, per Batt JA, with whom Charles and Callaway JJA agreed, at [30]-[32].

[16] Aon at [4] per French CJ and [111] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[17] Aon at [111] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[18] Aon at [5] per French CJ and at [100-101] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[19] Aon at [5] per French CJ and at [111] by Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[22] At present approximately 26% of the proceedings issued in the court are issued in the Commercial Division. Of the 60 judges in this court, only 5 judges sit in the Commercial Division.

[23] [1996] HCA 25; (1996) 186 CLR 541, 551 Dawson J agreed with the observation.

[24] Etna v Arif [1999] VSCA 99; [1999] 2 VR 353 at [36], quoting Lord Keith of Kinkel in Ketteman v Hansel Properties Ltd [1987] AC 189, 203.

[28] I acknowledge it is hard to reach a clear finding in the absence of better evidence.

[29] See for example the discussion in Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507at [81] - [94] and cases cited therein.

Court Civil Procedure Rules 2008

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