MacQuarrie v Hunter New England Local Health District

Supreme Court of NSW|2019-10-17|Before: Walton J

Solicitors: Bale Boshev Lawyers (Plaintiff) Hicksons Lawyers (First Defendant) HWL Ebsworth (Second and Third Defendants) File Number(s): 2015/211983

JUDGMENT

HIS HONOUR: By notice of motion filed 14 November 2018, Ms Heidi MacQuarrie ("the plaintiff") sought the following orders: 1. the plaintiff have leave to serve Notice to Answer Interrogatories to the first defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018; 2. the plaintiff have leave to serve Notice to Answer Interrogatories to the second defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018; 3. the plaintiff have leave to serve Notice to Answer Interrogatories to the third defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018; 4. the plaintiff be granted leave to file and serve a Further Amended Statement of Claim; 5. the defendants pay the plaintiff's costs of this application; and 6. any other Order the Court sees fit.

PROCEDURAL HISTORY

The plaintiff commenced proceedings in the District Court claiming damages for medical negligence. She alleged that she suffered intracranial hypotension ("ICH") caused by a cerebrospinal fluid leak ("CSF leak"), which the defendants' negligently failed to suspect or diagnose and thereby caused her irreparable harm (namely, brain damage).
During the first trial, the District Court heard argument over the admissibility of the liability evidence of Professor Brew, the tender of medical records, the rejection of the tender of the plaintiff's treating and medico legal records and application for adjournment by the plaintiff to rectify the evidence.
On 17 August 2017, the plaintiff's application for adjournment to rectify evidence was dismissed. The court refused to admit the medical reports of Professor Brew and the plaintiff's application for leave to adduce further evidence from Professor Brew was refused.
The plaintiff's claim was subsequently dismissed.
The plaintiff filed an appeal. The appeal was heard by the Court of Appeal in Newcastle in June 2018.
Prior to completion of the hearing of the appeal, the matter settled. Orders were made by consent, which set aside the orders made in the District Court and remitted the matter to the Common Law Division of this Court for rehearing.
On 4 April 2019, the matter was listed for hearing in this Court.
On 7 May 2019, the Court of Appeal considered the matter with respect to the scope of the remitted proceedings: MacQuarrie v Hunter New England Local Health District [2019] NSWCA 98 (per Basten, Ward and Payne JJA) ("the Court of Appeal Judgment"). The matter was returned to this Court on 17 October 2019.

THE PROPOSED AMENDMENTS

The variations made by the PFASOC concern, what the plaintiff considers, appropriate procedures that the defendants should have followed to prevent the risk of harm.
The primary issue in dispute in the substantive proceedings, as alleged by the plaintiff, is that the true cause of her condition remained undiagnosed for a period of time due to the defendants' respective failures to take an adequate clinical history. Had the defendants taken her proper history in consideration the plaintiff would have been accurately diagnosed (and treated) at an earlier time. Thus, she alleged irreparable harm would have been avoided.
Mr Morris SC submitted that, in substance, the PFASOC alters the current pleadings as follows: We have set out at the time she saw Dr Singla the symptoms she says she was suffering from and the change. We have set out her more distant medical history, including her history of head and neck injury. We have set out the literature that was available to the treating doctors that makes relevant their state of knowledge at the time, or not their state of knowledge, what they knew or ought to have known and we have actually identified that literature and none of this is secret because that literature was before the first trial judge. It was appended to first report of Professor Brew I think, or one of the reports of Professor Brew and it was the subject of considerable arguments in the Court of Appeal. ... The difference is we have made a positive allegation about it, so that the defendants need to say well, we were aware of it or we weren't aware of it, or the literature stands for the proposition that the plaintiff asserts or it doesn't stand for the proposition that the plaintiff asserts. In other words they have got to meet it, they can either admit it, deny it or not admit it, but what the objective is, is to make it clear what the plaintiff is relying upon. It sets out what she had been feeling at the time of the first consultation and what was capable of being elicited by the doctor but was not. Now that didn't appear in the first statement of claim and in my respectful submission what the revised document is seeking to do is to tease this out so that the defendants know the claim that the plaintiff is bringing, firstly, and, secondly, the plaintiff and the court is able to identify what is in dispute and what isn't in dispute.
For completeness, the PFASOC can be relevantly summarised as follows: 1. The incorporation of paras 3-6 concern the plaintiff's prior medical history, including three separate neck injuries, which occurred in 1973, 1982 and 1999, and her suffering from migraines or cluster headaches up to and including October or November 2007. 2. From that time, the headache symptoms changed, the plaintiff noticing that they were characterised by pain behind her right eye with a sense of swelling. The incorporation of paras 7-9 detail these changes. 3. The incorporation of para 13 alleges symptoms of spontaneous intracranial hypotension caused by CSF leak. 4. The incorporation of paras 14-23 provides examples of medical literature, available in 2009, regarding spontaneous ICH due to CSF. 5. The incorporation of paras 24-25 detail the plaintiff's worsening of headache symptoms from about February 2009. 6. The incorporation of paras 26-43 detail that the plaintiff, on 23 May 2009, presented to the first defendant's emergency department and was then assessed by Dr Singla and subsequently discharged later that same day.
Further, the plaintiff submitted that her presentation to the first defendant's emergency department on 23 May 2009 and her following medical consultations (which the plaintiff proposes to substantially amend) suffered from the same problem, namely, that a proper diagnostic process was not undertaken.
Whilst the plaintiff was "essentially" seen by doctors and treated symptomatically, no clear diagnosis was reached because her clinical history was not adequately elucidated and applied against the known scientific knowledge.

Plaintiff's Submissions

The plaintiff accepted that the PFASOC was a complete redraft.
The plaintiff submitted that leave to file the PFASOC is needed in order to achieve the following: 1. articulate her claim, to take into account the complexity of the facts matters and circumstances over the three year period; 2. to identify how each fact matter and circumstance relates to the scope and content of the duty of care and breach with respect to each defendant; 3. to bring the pleadings into line with the oral and expert evidence adduced at the first trial; 4. to enable the plaintiff's allegations of material facts to be traversed, it being inappropriate to relegate material facts to particulars; and 5. to incorporate the terminology such as identification of the relevant risk, involved in the relevant provisions of the Civil Liability Act 2002 (NSW).
Once the parties are apprised of the factual matters that are actually in dispute, the scope and content of the duty, the question of breach and causation can be more clearly identified, and this will assist with the more efficient disposition of the proceedings. Thus, the plaintiff submitted that, PFASOC furthers the overriding purpose and the statutory duty imposed by s 56(2) of the Civil Procedure Act 2005 (NSW).
The PFASOC sets out full particularisation of symptoms and histories obtained as well as what symptoms would have been obtained on proper history taking.
Further, scientific knowledge available to the defendants concerning the symptomatology of ICH, including factors which indicated that ICH should still be considered when typical findings were not always present such as normality of CSF pressure on measurement and normality of MRI images. Applicable literature going to that knowledge is relevant and has been particularised.
The plaintiff submitted that there is no prejudice to the defendants through the sought amendments. It was contended, in that respect, that: 1. The evidentiary source of the detailed narration of symptoms and medical records has been widely available to the parties for years. It has provided the basis for all expert reports and joint conference reports. It was also used during lengthy cross-examination of the plaintiff. 2. The PFASOC will assist the defendants identify the issues which they hold in dispute and will help refine the issues that require determination by the Court.
No dates for the rehearing have as yet been allocated, and as such, the defendant submitted that no delay is created. The PFASOC deals almost entirely with issues previously raised in the lay witness evidence, the treating records and the expert reports, but provide improved particularisation of the facts, matters and circumstances that are in contention between the parties.
The PFASOC was served shortly after the Court of Appeal ordered a rehearing. Hence, the application was not made late.
Allegations concerning the responsibilities of the referring neurologist and the neurologist receiving the referral were not originally pleaded. However, the plaintiff submitted that, by the time the report of Professor Brew was served on 8 March 2017, the need for appropriate communication between the specialists was in issue. Professor Brew opined that a referring doctor has a responsibility to adequately discuss a patient's relevant medical information with the neurologist to whom the patient is referred. However, irrespective of receiving a referral, a patient's comprehensive history must be taken afresh and independently. This issue was raised in both joint conferences of experts. In response to one of the defendants' questions at the second conclave, Dr O'Neill opined, "mistakes are often made by not making a full history".
The plaintiff submitted that the PFASOC does not contain new issues. In any event, the matter is remitted for re-trial and is a de novo hearing. The plaintiff is consequently entitled to amend her case and obliged to amend her pleadings to bring them into line with the evidence following the consideration of issues raised on appeal and the evidence given at the first trial.
Ultimately, the plaintiff submitted that the "overriding purpose" is served by the PFASOC being allowed at this early stage of preparation for the rehearing: s 56 of the Civil Procedure Act.

Defendants' Submissions

The defendants relied upon the provisions of ss 56-60 of the Civil Procedure Act and the principles outlined in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ("Aon") against granting leave to file the PFASOC.
The second and third defendants submitted that the PFASOC lacks clarity and precision and is inconsistent with the "overriding purpose".
The first defendant opposed the application to file the PFASOC on three grounds relating to content of the amendments, namely: 1. the PFASOC advances a new case against the first defendant without an explanation as to why that is necessary or desirable; 2. it does not meet the requirements of the Court's rules as to pleadings; and 3. it inadequately defines the plaintiff's case against the first defendant.
The first defendant did not accept the plaintiff's submission that no prejudice to the defendants would be occasioned if the Court were to allow the amendments. Rather, it was submitted that the PFASOC was "embarrassing" (i.e. "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70).
The first defendant submitted that the PFASOC exceeds the bounds of the case pleaded in the amended statement of claim and exceeds the bounds of the case, as reframed, on Wednesday, 26 July 2017 (the third day of the first trial). Furthermore, it exceeds the bounds of the oral and expert evidence relied upon by the plaintiff at the first trial. That is, the plaintiff's oral evidence at the first trial did not include the complete clinical history she now alleges the defendants ought to have taken.
The first defendant submitted the proposed incorporation that alleges the plaintiff suffered postural headaches was the subject of contradictory evidence at the first hearing. The second and third defendant affirmed this inconsistency.
The first defendant submitted that the plaintiff's reframed case, relied upon at the first trial, articulated a case in negligence as against the first defendant that was refined to a period from 15 June 2009 until the expiry of a period of "say three weeks" at which time surgical repair would have been affected by approximately 6 July 2009.
The first defendant submitted that the PFASOC does not reflect the same case. Rather, the PFASOC incorporates the plaintiff's admissions to the first defendant's emergency department on 23 May 2009, 3 June 2009, 11 August 2009, 22 April 2010 and 14 September 2010. However, none of those events were relied upon as material to the reframed case at the first trial.
The second and third defendant similarly submitted that the PFASOC contained a suite of new issues that were not propounded at the first trial and not traversed in any of the expert reports.
The first defendant submitted that pleadings and particulars must be very carefully framed so that each party may know (in detail) the case they are being called upon to meet: Banque Commercial SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 (see also Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218).
The first defendant submitted that the PFASOC does not meet the staged approach required by ss 5B, 5C and 5D of the Civil Liability Act. That is, the plaintiff has not identified the risk of harm asserted against the first defendant such as for her emergency department presentations on 23 May 2009 or 3 June 2009. Further, it is unclear whether the risk of harm is said to have changed at each consultation. I accept those submissions.
The first defendant submitted that risk is central to the determination of civil liability: see Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [102] (per Leeming JA). The identification of risk is antecedent to the Court determining whether the elements foreseeability, probability and reasonableness of precautions are established before finding a breach of duty: s 5B(1) of the Civil Liability Act; see also: Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 at [442]-[444] (per Sackville AJA). Thus, the PFASOC inadequately articulates the case that the first defendant is being called on to meet and ought to be rejected.
The first defendant submitted that the PFASOC does not meet the requirements of r 15.5 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Rule 15.5 relevantly states: Allegations of negligence and breach of statutory duty in common law claims in tort (1) The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise)-- (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and (b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission. …
The first defendant submitted that the alleged acts of negligence relied upon in respect of the plaintiff's emergency department presentation on 23 May 2009, for example, are not adequately particularised in the PFASOC. This same inadequacy can be observed with respect to other consultations incorporated by the PFASOC, in that it does not to state whether the same duty of care was owed to the plaintiff by a doctor working in the Emergency Department of the first defendant's hospital and specialist neurologist (whom examined the plaintiff subsequently) of the first defendant. I accept this submission.
The first defendant submitted the PFASOC does not identify a date or event at which point the plaintiff alleges an ICH caused by CSF leak ought to have been diagnosed. This fact is central to the first defendant understanding and answering the plaintiff's case on causation. A negligent act or omission causing loss or injury constituting damage must be pleaded and proved (see: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [111] (per Kiefel J (as the Chief Justice of Australia then was)).
I note the plaintiff submitted that the PFASOC makes it abundantly clear that the CSF leak existed as at the date of each consultation. I reject this submission. Neither a date alleging the existence of a CSF leak nor when it ought to have been diagnosed is explicitly stated in the PFASOC.
Further, I note that the defendants contend that the plaintiff never suffered from ICH caused by CSF leak, this condition not having ever been found in the plaintiff.
The first defendant submitted the PFASOC was also contrary to r 14.7 of the UCPR, which provides that "pleadings must contain only a summary of the material facts … and not the evidence by which those facts are to be proved". Particulars of the PFASOC include medical journal articles; the first defendant submitted that particularising evidence is embarrassing and impermissible. Whether the knowledge contained within such articles is relevant to any of the doctors who saw the plaintiff is not a matter for pleading and particulars, but perhaps a matter for expert opinion. I find that it is indeed unclear as to whether an Emergency Department physician, at the time they examined the patient, should have been aware of the medical literature that is listed in the PFASOC. The first defendant should not be required to make such inferences, they ought to be clearly articulated. Furthermore, the first defendant should not be required to trawl through a body of medical literature in order to be in a position to traverse the allegations.
The second and third defendants likewise submitted that the PFASOC failed to conform to the requirement of r 14.7 of the UCPR. It was further submitted the PFASOC was contrary to r 14.8 of the UCPR, which provides: "a pleading must be as brief as the nature of the case allows."
The second and third defendants further submitted that the amendment application was made at a very late stage in the proceedings and that the plaintiff had not proffered any satisfactory explanation for the delay.
The second and third defendants submitted that plaintiff has not explained why the new allegations contained in the PFASOC are necessary within the meaning of Civil Procedure Act (see s 64(2)).

CONSIDERATION

The order of remittal, made by the Court of Appeal in June 2018, was as follows: "Remit the matter to the Common Law Division of this Court for rehearing".
The Court of Appeal ordered that the costs of the first trial be the plaintiff's costs in the cause on the remitted proceedings.
The Court of Appeal observed as follows (at [12]): [12] There is a further factor which, had it been fully explained to the primary judge, should have resolved any question as to the scope of the further hearing. The appeal from the judgment in the District Court dealt with three topics, namely (i) the rejection of the plaintiff's expert evidence, (ii) rejection of, and limitation of the use which could be made of, certain medical records and (iii) refusal of an application for leave to amend the statement of claim. The grounds of appeal provided the context for understanding the agreement of the parties that the appeal should be allowed, so that a further trial could take place. Given the bases of the appeal, it is inconceivable that that agreement could have entailed a trial on the same evidence as that adduced in the District Court and without the possibility of amendment of the statement of claim; it is equally improbable that, in making consent orders following almost two days of the hearing of the appeal, the Court would have intended that any further trial would be conducted on such a limited basis.
In the Court of Appeal Judgment, the Court made clear that the order did not carry an implied constraint on the conduct of the rehearing in the Common Law Division (at [13]).Further, the Court of Appeal stated (at [15]): [15] That does not entail any conclusion that a trial judge, in dealing with a remitted matter, may not have powers to restrict the manner in which the case proceeds. That will depend upon the nature of the proceeding and the statutory powers of the court conducting the trial. Statements to this effect may be found in the judgments of the Full Court of the Federal Court in Blackman v Cmr of Taxation (Cth) and Morales v Minister for Immigration & Multicultural Affairs, applied by this Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority. After referring to Morales, the Court in Walker Corporation noted that where there is a power to order a "new trial" or a "retrial" nothing turns on the precise language used in respect of the scope of the power conferred on the court below.
At [19] of the Court of Appeal Judgment, the Court held: [19] For these reasons, there is no basis for suggesting that the order of remittal made by this Court on the appeal heard in June 2018 in any way constrained the powers of the trial judge in dealing with interlocutory applications and the trial of the matter in the Common Law Division, except, as already noted, with respect to the costs of the earlier trial. Accordingly, it is not necessary to correct or vary the order made in the appeal and entered on 25 June 2018.
The plaintiff submitted that the effect of the Court of Appeal Judgment was that the matter now falls to be determined within the usual parameters of case management in this Court. Resultantly, the plaintiff is at liberty to make an application to amend her pleadings.
The first defendant did not directly submit as to whether the effect of the Court of Appeal Judgment was that the plaintiff had an entitlement to amend. Rather, and more fundamentally, the first defendant submitted the Court ought to consider whether the PFASOC should be permitted pursuant to statutory provisions governing case management and the rules as to pleading. Upon the Court of Appeal Judgment that submission must be accepted. The consideration of the application to amend should be assessed in that light upon the particular terms of the PFASOC.
Further, the first defendant submitted that the PFASOC was not a proper pleading, i.e. it does not conform to the rules of pleadings. Therefore, the Court cannot consider the ambit of the PFASOC and determine whether a grant of leave is wholly or partially appropriate.
I propose to commence consideration of the application to amend, in that latter respect, by first turning to the submissions of the first defendant with respect to the medical literature which the PFASOC sought to incorporate. Mr Hutchings submitted: There is fundamentally an obligation upon parties in proceedings to plead material facts. The material facts are generally propositions that can be stated with some simplicity in sequential paragraphs. This statement of material facts is said to be that there was literature available that suggested a history of trauma can be elicited. There are then three articles which the defendant presumably is intended to read, to make an assessment about whether those three articles were available at the relevant point in time, and whether they did in fact suggest that a history of trauma could be elicited in about one-third of patients. Then it has to be traversed by way of allegation. That requires the defendant to interpret medical literature and to determine what its significance is, particularly in light of the fact that there is no articulation in this pleading of why Dr Singla, for example, a physician working in an Accident and Emergency Department, should have known of this literature, should have had it in his contemplation, should have known as of 23 May 2009 that the patient that he was seeing and taking history from was one who suffered from spontaneous [ICH] due to a [CSF] leak. It is a very circular proposition that the very doctor who is examining a patient trying to determine what is wrong with the plaintiff, is said to have been a doctor [who] ought to have known what was wrong with the patient and then should have had regard to literature about when the patient presents with that condition whether their histories can be reliable or not. It is an absurd proposition, and it can't possibly be any part of the prospective role played by a practitioner assessing a patient complaining of a headache in May 2009 in an Accident and Emergency Department. How this literature is meant to tie into the claim to be advanced by the defendants is simply not stated in any proper way because it posits that the diagnosis is an understood thing, and that is the only reason one would have regard to the literature. Which puts the cart well before the horse. The proposition is, prospectively, what did the practitioner understand the patient was presenting with, what questions were asked, what answers were given, and what might reasonably have been inferred about her presenting signs and symptoms. This case starts with the proposition of a diagnosis and works backwards in [the PFASOC]. That is not a way that this issue can be approached. That is the reason why [the PFASOC] is fundamentally and fatally flawed in its articulation of its case against the defendants.
I accept the thrust of those submissions and find that the medical literature is contrary to the rules as to the form of pleadings: rr 14.7 and 14.8 of the UCPR.
More broadly, the question before the Court is whether the PFASOC should be allowed under s 64 of the Civil Procedure Act. That section relevantly provides: Amendment of documents generally (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. …
The Court's power to grant leave to amend a document in the proceedings is a discretionary one. In considering whether the Court ought exercise that discretionary power it must have regard to ss 56-61 of the Civil Procedure Act. Sections 56-58 relevantly provide: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
The fundamental legal principles regarding case management, as set out by the High Court in Aon should also considered. The factors identified in Aon, as to the balancing exercise a court must conduct in determining whether to exercise its discretion to grant an amendment to pleadings, was conveniently summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 as follows (at [38]): [38] … 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. [Footnotes omitted.]
The importance of the overriding purpose in the exercise of the Court's powers under the Civil Procedure Act was reinforced by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46. The High Court observed (at [51]-[52] and [56]-[57]): [51] In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. [52] Unsurprisingly, the case management rules with which the court was concerned in Aon Risk Services Australia Ltd v Australian National University had essentially the same object as those stated in the CPA. The overriding purpose of the CPA and the rules of court provided for by the UCPR, as stated in s 56(1) of the CPA, is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings." In order to achieve that purpose, s 56(2) provides that the court: must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. A duty is also imposed upon a party to civil proceedings. Section 56(3) provides that: A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. Section 56(4) requires that lawyers representing a party to civil proceedings (or any person with a relevant interest in the proceedings) must not, by their conduct, put a party in breach of this duty. … [56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. [57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice. [Footnotes omitted.]
The substantive proceedings were commenced by statement of claim, filed in the District Court on 20 July 2015. They have been subject to multiple amendments. The PFASOC was served on the defendants on 4 October 2018. It follows that the plaintiff has had ample opportunity to identify the real issues in the proceedings.
In Aon, plurality of the High Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (at [112]): [112] 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.
The application to amend in this case was sought at a very late stage in the proceedings. As outlined above, a 14-day trial in the District Court has been completed, wherein the then extant amended statement of claim was reframed on the third day of hearing. On appeal, the proceedings were subsequently heard in the Court of Appeal over two days. The plaintiff has espoused no explanation as to the lengthy delay in seeking the amendment. A factor weighing against the approach to amend is the absence of a satisfactory explanation for the amendment (see: Aon (at [102]).
The PFASOC raises, in substance, an entirely new case. I consider that the PFASOC does raise new issues. The PFASOC seeks to incorporate additional events. Thus, granting leave to file the PFASOC would undoubtedly cause additional costs to be incurred and would likely extend the length of the rehearing. I find that there is a strong likelihood that the new claim would need to be further particularised. The prospect of resultant delay is high.
Further, as the defendants correctly submitted, the PFASOC lacks cogency. The consequence of the inclusions in the PFASOC is unclear and the defendants are justifiably uncertain as to how to answer the case they must meet. This is a further factor against the grant of the application.
In Chaker v Tompsett [2011] NSWSC 135, Hoeben J (as his Honour then was) said (at [29]): [29] … The trial and appeal process should not be regarded as some kind of "trial run" which would allow either side to significantly change their case because of the unfortunate circumstance that the matter has to be heard again.
As detailed above, I find the PFASOC does not conform with the rules as to pleadings. Further, the contraventions are found throughout the PFASOC. It follows, and I find, that even the possibility of allowing a partial amendment cannot properly be entertained.
In light of the above reasons, I have determined that the plaintiff's application to file the PFASOC must be refused.
I find no reason why costs ought not to follow the event in accordance with the general rule.

ORDERS

I make the following orders: 1. The plaintiff's application to file and serve the proposed Further Amended Statement of Claim is refused. 2. The plaintiff is to pay the defendants' costs of the application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2020

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Judgment (8 paragraphs)

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Cases Cited (13)