Determination of Application
11 The Court has a discretion whether to allow the application to amend the Statement of Claim. The well-known contemporary guiding principles appear in s.56 (and following) of the Civil Procedure Act 2005. Those principles, in the context of similar ACT legislation, were the subject of consideration by the High Court of Australia in Aon.
12 The changing regime with respect to applications of this sort, as reflected in the statutory scheme and in decisions such as Aon, has been commented on by a number of judges of this Court in the context of amendment applications. In Grivas v Harrison [2010] NSWSC 208, Davies J at [9]-[10] observed that the decision of the High Court in Aon had altered the playing field in terms of amendments and adjournments, with the High Court indicating that it is not sufficient merely to say that the other side can pay costs as a result of the amendment or adjournment sought. However, his Honour observed, what the High Court stressed was that one always had to look at the governing Act and Rules of the Court concerned, and that was the starting point for any such application. Davies J observed that the Civil Procedure Act 2005 places a great deal of emphasis on the just and quick resolution of litigation. His Honour observed, in the context of that case, that a delay of more than 18 months in seeking to amend the Statement of Claim could scarcely be said to be in accordance with those dictates. There are other decisions of this Court which have emphasised these principles.
13 It is important to bear in mind, of course, that there are multifaceted considerations to be taken into account. The overriding purpose of the Act and Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and there are duties upon litigants and their representatives to facilitate that process: s.56.
14 Section 57 emphasises that, for the purpose of furthering the overriding purpose in s.56, proceedings in any Court have to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable to the respective parties.
15 Section 58 (importantly) emphasises that the Court is to follow the dictates of justice when considering, amongst other things, an application to amend a document such as a pleading. Section 58(2) requires the Court, in determining what the dictates of justice are in a particular case, to consider, amongst other things, the provisions in ss.56 and 57; the degree of difficulty or complexity to which the issues in the proceedings give rise; 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; the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; the degree to which the respective parties have fulfilled their duties under s.56(3); 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; the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and, finally, such other matters as the Court considers relevant in the circumstances of the case.
16 Section 59 emphasises that the practice of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination, beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
17 Section 60 requires the Court to have regard to proportionality of costs.
18 The starting point in this case is that the proceedings were commenced as long ago as May 2008 by way of a Statement of Claim which, until today, was not the subject of any application for amendment. The causes of action alleged by the Plaintiffs are serious ones. It has been observed that proceedings alleging misfeasance in public office involve a very serious allegation to be made against a person who holds public office. As Mullins J observed in Leinenga v Logan City Council [2006] QSC 294 at [64], such a claim cannot be made in a broadbrush way and requires particularity in setting out the facts that can, if proven, establish the cause of action. Those principles, which in truth reflect obvious requirements with respect to pleadings, are the expectation with respect to pleadings where a cause of action of this sort is brought in this Court. Provisions of the Uniform Civil Procedure Rules 2005 (rules 15.3, 15.4) also require the identification, with proper particularity, of claims involving (in effect) allegations of misconduct such as misfeasance in public office.
19 Accordingly, the Defendant was entitled to approach these proceedings up to yesterday upon the basis that the case it had to meet was the case as pleaded in May 2008 and particularised in October 2008. Although there may be opportunities in the interlocutory phase of proceedings for evidence to be obtained which may lead to a reshaping of a party's case, there has been no application by these Plaintiffs to amend their claim in any way whatsoever until the hearing commenced yesterday.
20 The Plaintiffs point out that the Defendant amended its Defence in December 2009. It is true that that amendment occurred shortly before the then scheduled hearing. Once the amendments were identified, the Plaintiffs did not contend they were prejudiced and no application was made to adjourn the December 2009 hearing. Thus, in broad terms, the forensic battlelines were drawn by the pleadings, until yesterday.
21 The matters of complaint on behalf of the Plaintiffs concerning the indication by the solicitors for the Defendant that a legal representative of the Defendant ought be present if Council personnel or councillors were to be interviewed, does not, it seems to me, touch in any material way on the present application. The correspondence in this respect (MFI 1 and MFI 2) stretches from July 2009 through to March 2010. It reflects movement backwards and forwards, with the repetition of the positions of the parties.
22 It was, in reality, the obligation of the Plaintiffs to make such interlocutory application as was needed to break the gridlock in that respect. If the Plaintiffs did not do that, the concern was that the hearing would commence before the Plaintiffs' legal representatives had spoken to any Council personnel or councillors. That, in fact, is what has happened. If application was made to the List Judge or the Duty Judge, or indeed to Rothman J in December 2009, for orders to allow the Plaintiffs' legal representatives to speak to these persons without the fetters proposed by the Defendant, then orders could and would have been made to facilitate the final hearing of the matter. If it was said that because of this problem, the present hearing could not proceed, it could have been vacated. But the Plaintiffs made no such application.
23 The issue was touched upon before me last Friday afternoon with respect to one witness. It does not seem to me that this issue bears materially upon the present application to amend. In any event, as I have said, the relevant remedy lay with the Plaintiffs' legal representatives to seek orders from the Court, and they did not do so.
24 The submission by the Plaintiffs that the email (MFI 5), which was provided only last Friday, 19 March 2010, in some way bears upon the present application, does not seem to me to have substance. The email is a part of a chain of documentation, most of which the Plaintiffs had, and have had, for some time. It is an email from the Council officer, Ms Gale, to a solicitor in April 2006 seeking legal advice with respect to the relevant application. The Plaintiffs seek to put one construction upon the email; the Defendant seeks to put another. What bearing the email has upon the present proceedings, it seems to me, is a matter which is capable of being accommodated, at least to some extent, within the confines of the existing pleadings. It is clear, however, that the provision of that email last Friday does not in any way constitute a form of new or fresh evidence which leads the Plaintiffs to see their case in a different light so that a recasting of the claim is needed.
25 The Court is left with the Plaintiffs seeking to recalibrate their case after the hearing has commenced. No satisfactory explanation has been given as to why this is happening now. On the face of it, the Plaintiffs have not been complying with their obligations under s.56 Civil Procedure Act 2005.
26 The final hearing has commenced. The present application (if allowed) would see the hearing being aborted, with the litigation, on one view of it, to effectively start again with fresh pleadings, with the parties to prepare fresh cases to be heard at some future time; all of this against the background of a hearing listed to proceed this week, following a vacated hearing last year and a not-reached marking in December 2009.
27 As I have said, the Court must have regard to a range of factors as identified in the Civil Procedure Act 2005 and in Aon. What do the dictates of justice require in this case? Aon itself involved an application to amend on the third day of a four-week trial. It bears some broad similarity to the present application, in that the application to amend was made only after the final hearing had commenced. The High Court observed that a range of factors had particular significance. The Court was entitled to consider whether reasonable diligence on the part of the moving party would have led to the bringing of the claim in the existing proceedings. Now, in this case it does not seem to me that the Plaintiffs have exercised reasonable diligence with respect to the areas encompassed by the proposed Amended Statement of Claim.
28 The amendments, as in Aon, raise new issues and they fall to be considered by reference to statutory objectives. As the High Court observed in Aon by reference to the relevant ACT legislation, a party does not have an entitlement to amend a pleading subject to payment of costs by way of compensation. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the Court and other litigants, and the concern for case management itself assume importance on an application for leave to amend. Relevant matters also include the nature and importance of the amendment to the party applying, the stage the litigation had reached when the amendment was sought and the explanation for any delay in applying for amendment.
29 In my view, consideration of factors of that type operate against the Plaintiffs on this application to amend. If the application is refused, the Plaintiffs will be able to proceed at this hearing with their pleaded and particularised claim, which the Defendant is here to meet. It is that claim which has been left on foot and has been the subject of several interlocutory applications since May 2008. The Court will proceed to hear and determine that claim. Although there is, I accept, a degree of prejudice to the Plaintiffs in refusing the application to amend the Statement of Claim in these circumstances, I am satisfied that it is strongly outweighed by the other factors which I have mentioned.
30 The application to amend the Statement of Claim in accordance with MFI 6 is refused.
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