Case management issues
25 It is very clear from the transcript of the proceedings before his Honour that:
the affidavit of Mr Bedington was tendered by the appellants on the first day of a three day trial;
the appellants informed his Honour that the affidavit contained new matters which the appellants submitted went to the central issue in the case;
the respondent had not seen any of the material in the affidavit;
the appellants had provided no evidence as to why the affidavit had only come to light on the first day of the trial;
Counsel for the appellants was surprised that no defence had been filed by the appellants, and had no explanation for that failure (transcript BRG166/2012 26 March 2013 p 5 ll 9-17);
the respondent opposed an order granting leave to the appellants to file and serve the affidavit. In particular, Counsel for the respondent informed his Honour:
We would like, for instance, to consider the originals, particularly this mysterious memo that's been the subject of dispute since about mid 2010 and suddenly surfaces the night before trial …
We have complied with the orders and we're ready to proceed. It's just that the late filing of this material, whatever light it might shed, should not be at the cost of ambushing the applicant in these proceedings, which is precisely what it does.
(Transcript BRG166/2012 26 March 2013 p 6 ll 28-37.)
26 Second, it is clear that his Honour had made directions some time prior to the hearing in relation to the filing of evidence by both parties. In particular, his Honour had ordered that the appellants file evidence by 26 August 2012. No application was made by the appellants to vary this order.
27 Third, his Honour recounted in his first judgment that:
More directions issued on 26 October 2012. No directions were made for the filing and service of any material because the parties, I think on at least three occasions, told the Court that all of their material had been filed.
(Emphasis added.)
28 Finally, as the respondent correctly submitted there was no material before his Honour to support the adjournment application.
29 The inherent right of the Court to control its own proceedings is not in dispute. This right, and the importance of the Court managing its workload - including specific aspects of cases before it - was discussed in detail in the well-known case Aon Risk Services. In that case as was summarised by French CJ at [1]:
In November 2006, at the commencement of a four week trial of an action against its insurers and its insurance broker Aon Risk Services Australia Ltd ("Aon"), the Australian National University ("ANU") settled with the insurers and consent orders were made to give effect to the settlements. ANU then applied for an adjournment of the trial to make substantial amendments to its statement of claim against Aon … The adjournment was granted, the application for amendment was heard two weeks later …
30 The High Court found that the trial judge erred in allowing the adjournment.
31 French CJ observed:
4. Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted.
5. In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.
32 Further, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
111. 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 permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
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.
113. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
(footnotes omitted.)
33 Mr Bain QC for the appellants strongly submitted that this case was not analogous to Aon Risk Services or other authorities which involved a new case assayed, a forensic choice which was repented of, or a substantial amendment of an existing cause of nature and type such as to affect the case radically. However I do not agree. The evidence the appellants sought to file did, on their own submissions, constitute allegedly critical evidence, but evidence which:
without explanation, they sought to file on the first day of the trial;
was not in fact new, but constituted documents dated several years prior to the hearing;
on the own evidence of the appellants, warranted an adjournment of the trial; and
was filed seven months after the evidence filed by the appellants was ordered closed, and approximately six months after the appellants had informed his Honour that no further evidence was to be filed.
34 The decisions of his Honour in relation to the additional affidavit of Mr Bedington and the adjournment of the trial were exercises of judicial discretion. In the circumstances of this case I consider his Honour was fully justified in refusing to not only permit new and relatively extensive evidence to be filed so as to "ambush" the respondent, but to refuse to adjourn the proceedings and thus disrupt the progress of a three day hearing for no better reason than the unexplained convenience of the appellants. Concern for management of these proceedings and the impact of disruption of the trial on the respondent validated the decisions of his Honour. In my view, Aon Risk Services is squarely applicable to the circumstances of this case.