The respondent's remaining grounds of objection
34 As to the first ground, the respondent submits that the leave granted on 23 December 2015 ([7] above) was conditioned on appropriate particulars of paragraph 92C.1 being given by 29 January 2016. The respondent says that, by its present application to amend, the applicant is seeking to revisit this grant of leave - in effect, to change the date by which particulars are to be provided, from 29 January 2016 to 30 May 2016. The respondent also argues that, by its present application to amend, the applicant is seeking to "re-open" the Court's order made on 19 April 2016 that struck out various parts of paragraph 92C.1 as then pleaded ([12] above).
35 The focus of the respondent's submissions in this regard is the private injustice and public undesirability of permitting the relitigation of matters already litigated once. The reflection of this precept in the context of interlocutory orders made after a contested hearing, is to be seen in McLelland J's statement of principles in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, where his Honour was dealing with a motion to set aside the appointment of a provisional liquidator who had been appointed after a contested hearing on that question:
Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application…
36 The respondent also referred to the discussion of these principles in Liu v The Age Company Limited [2016] NSWCA 115 at [13]-[14], [168]-[169], [199] and [203]; ACCC v Adata (Vic) Pty Ltd (No 2) [2015] ATPR 42-502; [2015] FCA 272 at [40], [44] and [55]; and Dallas Buyers Club LLC v IiNet Ltd (No 5) (2015) 115 IPR 544; [2015] FCA 1437 at [12]-[15] and [35]. The respondent also referred to AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [23]-[24], [31], [96] and [102].
37 The essence of the respondent's submission is that, by (a) supporting the pleading of paragraph 92C.1 in the amended statement of claim at the hearing on 13 April 2016 on the basis that it was in conformity with the leave granted on 23 December 2015, and by (b) not indicating at that time that it wished to plead a "new case" based on its intended expert evidence, the applicant made a forensic decision from which it should not be permitted to depart. The respondent submits that "to permit that course would be to endorse an abuse of the Court's process, or conduct tantamount to that, there being no new facts that have come into existence since 13 April 2016 that would make the order of 19 April 2016 unjust".
38 Thus, the respondent submits, the applicant "has no right to what is effectively a new hearing on the matters resolved by the order of 19 April 2016 following a change in its forensic position". In support of this last submission, the respondent argues that the applicant must have known the substance of the opinions to be expressed by its experts by the time of the hearing on 13 April 2016. He argues that the applicant cannot complain if the Court declines to reopen the matters resolved on 19 April 2016 in order to advance a case which the applicant has effectively "kept up its sleeve".
39 I am not persuaded to the view that the present application to amend is appropriately characterised as an application to change the date by which the applicant was to provide particulars of paragraph 92C.1. Similarly, I am not persuaded to the view that, by making its present application to amend, the applicant is seeking to reagitate matters determined at the hearing on 13 April 2016 by the orders made on 19 April 2016. At the hearing on 13 April 2016, the respondent was seeking to strike out certain parts of paragraph 92C.1 of the amended statement of claim on the basis that the condition on which leave was granted to plead paragraph 92C.1, had not been fulfilled. The applicant's position was that it disputed that contention. However, the applicant's position could not be sustained. It lost that argument. It does not seek to re-open it. It advances a new pleading of paragraph 92C.1. The new pleading of paragraph 92C.1 is based in part on the expert opinions that are now available to it. The new pleading also seeks to take into account, and avoid, the pleading deficiencies discussed in Oztech 6 at [48]-[60]. The applicant is not seeking to support or reagitate the adequacy of the pleading of paragraph 92C.1 of the amended statement of claim as filed on 29 January 2016.
40 Further, I am not persuaded that the case to be made under paragraph 92C.1, as now proposed, is one that, at the hearing on 13 April 2016, the applicant had "kept up its sleeve". In fact, on 13 April 2016, I made orders extending time to the applicant to file its additional expert reports. At that time, I had understood, based on what I had been told by counsel for the applicant, that the applicant's experts were still in the process of undertaking the tasks that had been assigned to them. There is no material before me that would undermine that understanding or cause me to change my view. As I have explained at [14] above, I have been informed that the reports of the applicant's experts are structured in a particular way. The opinions expressed culminate in the final reports filed on 22 April 2016. I have no reason to think that the applicant was in a position to accommodate its intended expert evidence in the pleading of paragraph 92C.1 until the experts' reports were finalised.
41 For these reasons, I reject the respondent's contention that the present application to amend is, in effect, an abuse of the Court's process.
42 As to the second ground, the respondent submits that the applicant has failed to provide an adequate explanation for its delay in seeking to amend paragraph 92C.1. The respondent argues that the applicant has been, at all times, subject to an obligation to proceed with expedition, particularly in circumstances where it commenced this proceeding at the very end of a limitation period.
43 In this connection, the respondent points to the procedural history of the matter, much of which I have canvassed earlier in these reasons ([3]-[13] above) including by reference to [9]-[26] of Oztech 2. One matter not yet referred to by me is the fact that, in the period 14 January 2016 to 7 March 2016, the applicant was granted leave to serve subpoenas addressed to numerous Octaviar companies, which resulted in the production of a large number of documents. The respondent says that, on 3 February 2016, some 9,979 documents were produced on a USB stick and a further 69 documents were produced in a folder, in answer to a subpoena addressed to OA that was issued on 27 January 2016. The respondent also gave further discovery on 9 and 19 February 2016.
44 Another aspect of the procedural history is that, on 4 February 2016, I made orders extending time to the applicant to file its expert evidence. One reason for this was the fact that, on that day, I also ordered the respondent to file and serve an amended defence by 26 February 2016. As I noted in Oztech 6 at [38], at that time I was informed that the respondent would be advancing a positive case in his defence. It therefore seemed to me to be highly desirable that the respondent plead to the amended statement of claim before the applicant was required to file its expert evidence. The time for filing the applicant's expert evidence was again extended on 16 March, 23 March and 13 April 2016. On the last occasion, I also ordered that the applicant not be permitted, without further leave, to lead any expert evidence at the trial that had not been filed in accordance with the Court's then order.
45 The respondent's contentions are, essentially, these. First, the applicant could have sought leave to issue the subpoenas much earlier than it did (according to the respondent, even before the proceeding was commenced). The respondent says that the applicant has not explained why that course was not adopted. Secondly, the applicant has advanced a new case under proposed paragraph 92C.1. The respondent says that the applicant has not explained why it did not inform the Court or the respondent of its intention to do so at an earlier stage. I have already addressed certain aspects of that contention: see [19] and [27]-[30] above.
46 The applicant's response is that, firstly, it cannot be criticised for seeking leave to issue subpoenas when it did, given that:
leave to file the amended statement of claim was only granted on 23 December 2015;
the respondent filed his amended defence on 1 March 2016;
the respondent continued to provide his supplementary discovery on 9 and 18 February 2016, and as recently as 10 and 11 May 2016; and
the respondent has failed to explain how the applicant could have caused subpoenas to be issued before the proceeding was even commenced.
47 In support of these submissions, the applicant refers to the following observations by Hill J in Universal Press Pty Limited v Provest Limited [1989] FCA 402:
With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed.
It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v Carter (supra) (at p. 201, 202):
"But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of …"
48 Secondly, the applicant says that any delay in seeking to amend paragraph 92C.1 has been explained by Ms Banton in her affidavit: see [14] above.
49 In cross-examination, Ms Banton's attention was directed to the subpoena addressed to OA that was issued on 27 January 2016. In effect, this subpoena called for documents that Mr Borrelli had before him in preparing a report filed in another proceeding in the Supreme Court of Queensland. Ms Banton said that she wanted to review these documents to see whether they were relevant to the report that Mr Borrelli was to prepare for the purposes of the present proceeding.
50 Ms Banton was challenged on why leave to issue this subpoena was not made earlier. Her response was that, normally, she would consider the documents to be produced on discovery, consider what "gaps" there might be and then "work out what subpoena[s] were needed to be issued". However, Ms Banton said, in this case the timetable was so compressed that "we didn't have the benefit of being able to do that".
51 Ms Banton was challenged on this explanation, including by reference to the fact that she knew that the further discovery being sought from the respondent in this proceeding was not due to be given until 8 February 2016. I do not think that the explanation given by Ms Banton is inconsistent with this fact.
52 However, notwithstanding Ms Banton's explanation, it does seem to me that leave to issue this particular subpoena, and perhaps others, could have been sought earlier, regardless of the documents that the applicant was seeking to obtain by way of discovery. Whether the delay in doing so caused any appreciable additional delay in the preparation of the applicant's intended expert evidence and, hence, a consequential delay in the applicant seeking to amend paragraph 92C.1 of the amended statement of claim to take account of that intended evidence, I cannot tell. It is but one factor in play which could have affected - although not necessarily affected - the timing of the preparation of that intended evidence. I am, in any event, reluctant to conclude that any miscalculation by Ms Banton in this regard should have the consequence that leave to amend paragraph 92C.1 should be refused, particularly in light of my finding that prejudice to the respondent, caused by the proposed amendments, can now be remedied satisfactorily. I do not think, therefore, that a refusal on this basis would be a just outcome in the circumstances.
53 For completeness, I would add that, even though the applicant accepts that it commenced this proceeding at the end of a limitation period, I do not see this factor as having any particular significance, given the respondent's particular involvement in litigation concerning the Octaviar Group and its officers. As the applicant argued, it is a brave submission for the respondent to rely on "the notorious difficulties of trying claims involving matters that occurred a number of years ago" when, as I have noted, a number of the allegations pleaded in this proceeding concern facts, matters and circumstances which the respondent has relied on in proceedings which he has brought himself. Moreover, as I have noted (at [19]), the respondent does not say that it is not, and cannot be, in a position to answer paragraph 92C.1, as now proposed, given appropriate time.