Manday Investments Pty Ltd v Commonwealth Bank of Australia

INTRODUCTION 1 This is an application by the first respondent for trial dates of 5 June 2012 to 15 June 2012 to be vacated. The first respondent says that the application is made in the context of an unfinalised statement of claim, the late delivery of expert evidence by the applicants, and recent statements by the applicants as to what material they will, and will not, rely on at trial. 2 The relevant history of the matter is that: (a) On 18 October 2011, I listed this matter for trial on 5, 6, 7, 8 and 11 June 2012. (b) On 23 February 2012, at the request of the first respondent in light of matters discussed below, I extended the listing of this matter to 5, 6, 7, 8, 11, 12, 13, 14 and 15 June 2012 to accommodate the first respondent's concern about the potential length of the trial. That extension was subject to the availability of counsel in the second week. (c) On 28 February 2012, the first respondent informed the Court that its preferred counsel was unavailable in the week commencing 11 June 1012 due to other trial commitments. 3 The balance of these reasons should be considered in light of my reasons in Manday Investments Pty Ltd v Commonwealth Bank of Australia [2011] FCA 681 (Manday No 1). 4 Additionally, in determination of the application to vacate the trial dates the parties would bear in mind the observations of French CJ in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 where his Honour said (at [26]-[32]) (footnotes omitted): 26 Sali v SPC Ltd was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties". Brennan, Deane and McHugh JJ went on to say: "What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources." Toohey and Gaudron JJ dissented in the result but acknowledged by reference to GSA Industries, that: "The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard." (footnote omitted) 27 The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn. 28 Both the primary judge and the Court of Appeal in the present case regarded the decision of this Court in J L Holdings as determinative of the approach they should take to the amendment application. But that case was factually very different. As counsel for Aon pointed out in written submissions: 1. The applicant had explained, and the Court had accepted, that the application was made late because a material fact had only recently been discovered. 2. The application was made before a hearing date was fixed and, once it had been fixed, the period of six months intervening between the application and the commencement of trial meant that the hearing dates would not be imperilled. 3. The point sought to be raised could not be avoided at trial, as it was apparent on the face of certain documents. In reversing the decision of the Full Federal Court, which upheld the primary judge's refusal to grant leave to amend the defence, this Court held case management principles to be relevant, but said that they could not be used to prevent a party from litigating a fairly arguable case. 29 In their joint judgment, Dawson, Gaudron and McHugh JJ reaffirmed the "principles established in Cropper v Smith and accepted in Clough and Rogers v Frog...". They held that nothing said in Sali suggested that proper principles of case management might be employed, except perhaps in extreme circumstances, to shut a party out from litigating a case which was fairly arguable. Their Honours said: "Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." And further: "Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties." Kirby J wrote a concurring judgment. 30 It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. Application of the Rules to ANU amendment 31 The amendment allowed in the present case could only be supported as an exercise of the discretion under r 502. On no view was it required by r 501(a). The requirement to make amendments for the purpose of deciding "the real issues in the proceeding" does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself. 32 The requirement under r 501(c) to avoid a multiplicity of proceedings is to be understood as operating within the framework of an ordered progression to a fixed trial date. It does not oblige the court to accept the addition of new claims at the last moment before trial, on the basis that if they are not allowed there might be subsequent proceedings in which those claims are raised. The steps which r 501(c) requires to be taken to avoid multiple proceedings are "all necessary amendments". The Court had no basis for inferring that, absent the amendments, there would be further proceedings.