Plaintiff v Defendant

Supreme Court of Victoria|2013-08-27|Before: KAYE J

PRACTICE - Claim for damages for personal injury - Application on day of trial to amend defence to plead defence under Limitation of Actions Act 1958 - Application refused.

**1 In this proceeding the plaintiff Lawrence Borg claims damages against the defendant, the Trustee for AG Airwork Services Trust, for injuries which he alleges he sustained in the course of his employment with the defendant as a loader operator and chemical mixer.

2 The plaintiff alleges that on 6 February 2003, while he was alighting from the cabin of a loader at an airstrip at a property in Warrnambool, he slipped and landed on a rock. As a result he alleges that he suffered injury particularly to his right ankle, to his hip and to his lumbar spine. The plaintiff alleges that the injury was caused as a result of the negligence or breach of duty owed to him by the defendant as his employer.

3 The proceeding was issued by the plaintiff by writ on 19 September 2012. In circumstances, which I shall detail shortly, the case was set down in March 2013 for trial in the sittings of the Supreme Court at Bendigo commencing on 26 August 2013. The case came on for trial today. Before the jury was empanelled, the defendant has applied to amend its defence to include a plea that the claim by the plaintiff is statute barred under the provisions of the Limitation of Actions Act 1958.

4 It is common ground that the combined effect of s 5, s 27B(2)(a) and s 40 of the Limitation of Actions Act, and s 134ABA of the Accident Compensation Act 1958, is such that the limitation period for commencing this proceeding expired on 6 February 2011.

5 In view of the late stage at which the application has been made to amend the defence, it is convenient first to set out, in chronological form, some of the history of the proceeding. That history is as follows.

6 As I stated, the proceeding was issued by writ on 19 September 2012. On 27 September the defendant entered an appearance to the writ. On the same date it gave notice to the plaintiff that it required the proceeding to be heard before a jury.

7 On 15 October 2012 the plaintiff filed and served an amended statement of claim. On 16 October the defendant filed and served a defence to the amended statement of claim. On 15 February 2013 Daly AsJ made a consent order on the papers adjourning the directions hearing before her to 5 April 2013.

8 On 13 March Daly AsJ vacated the directions date of 5 April 2013. Her Honour gave a series of directions, again on the papers, in respect to the various interlocutory steps to be taken in the proceeding, and made an order setting the case down for trial at the Bendigo circuit commencing 26 August.

9 Since that date all the interlocutory steps, including discovery and interrogation, have taken place between the parties. I note that on 17 July 2013 the plaintiff filed sworn answers to interrogatories. On 5 August 2013 a mediation took place between the parties, but the proceeding did not resolve.

10 On Monday 19 August I held a callover of all the matters which had been fixed for hearing for the Bendigo circuit commencing the next week. On that occasion I was told that the case was ready for trial before a jury, and that the trial would take between one week and one and a half weeks.

11 Importantly I was not informed that the defendant might apply to amend its defence to include a plea under the Limitation of Actions Act. In fact, it would seem that the defendant first notified the plaintiff of its intention to apply to amend its defence in that way by a letter by the defendant's solicitors to the plaintiff's solicitors on the next day, that is 20 August.

12 The Bendigo circuit commenced before me yesterday, 26 August, and on that day I was told that the application to amend the defence had been foreshadowed. The case was listed for trial today. The case which had been listed ahead of it settled. As I stated, apart from the disposition of this application, the case is ready to proceed before a jury.

13 Mr Terry Casey of Queen's Counsel, who appears with Mr McWilliams for the defendant, has candidly conceded that he can advance no explanation why the application to amend the defence has been made at such a late stage. Nevertheless, he submitted that I should grant the application. He pointed out that the new defence would not raise any new facts in the proceeding. He submitted that if I did not allow the amendment, the defendant would be shut out of what on its face was a legitimate defence otherwise available to it. On the other hand, if I allowed the amendment, the plaintiff would be entitled to apply for an extension of time under s 23A of the Limitation of Actions Act, and that application would be determined on its merits, including such matters as the detriment caused to the defendant arising out of the delay by the plaintiff in issuing his proceedings.

14 Mr Casey further submitted, that if I allowed the amendment, and if the subsequent s 23A application by the plaintiff succeeded, the case would be likely to be able to be refixed for hearing at the February sittings of this circuit for next year, thus limiting the delay occasioned to the plaintiff to a period of six months.

15 In response Mr John Richards of Senior Counsel, who appears with Mr Purcell for the plaintiff, emphasised that the defendant has come to this court at a very late stage in the proceeding and has proffered no explanation at all for the late application to amend its defence. He pointed out that the case has been through all of the interlocutory steps, including the preliminary serious injury application to the County Court in April 2012 which was contested.

16 He submitted that throughout that time the defendant had chosen not to plead a defence under the Limitation of Actions Act. He submitted that, by doing so, it created in the plaintiff a legitimate expectation that this case would be heard and determined on its merits. In that context, Mr Richards referred me to the speech of Lord Griffiths in Ketterman v Hansel Properties Limited,[1] where His Lordship stated:**

"A defendant does not invariably wish to rely on a defence of limitation, and may prefer to contest the issue on the merits. If therefore no plea of limitation is raised in the defence, the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties."

**17 Mr Richards also pointed out that the bringing of this late application imposed greater strain on the plaintiff, and that is a legitimate matter which I should take in to account. He submitted that, if an amendment was allowed, the plaintiff would be required to make a s 23A application, and he submitted that there is a reasonable risk that such an application might not be heard and determined by February next year.

18 He submitted that even if such an application were heard and determined by February next year, and if the plaintiff succeeded, nevertheless the case might not be reached, but rather it might be listed too far down in the list of cases for hearing next February. Thus he submitted that if I were to allow the amendment to be made by the defendant, the plaintiff might suffer a delay of at least 12 months in the hearing of his case.

19 He further submitted that if I were to grant the amendment, by doing so the public confidence in the administration of justice would be undermined. He pointed out that this is a case where the plaintiff had been through a number of interlocutory steps. He had been through a serious injury application. The plaintiff had made his case ready for trial and proceeded to the court in an expectation that it would be heard.

20 Mr Richards submitted, with some force, that if at the eleventh hour the plaintiff were now required to adjourn the case to make an application under s 23A of the Limitation of Actions Act, the public would likely question whether the court was administering its processes with proper efficiency and in a fair manner.

21 The principles, which apply to an application such as that which is being made by the defendant in this case, have undergone some substantial alteration in recent decades. The original principle was that stated by the English Court of Appeal in Cropper v Smith,[2] namely that an application to amend a pleading should ordinarily be allowed, even at a late stage in the proceeding, unless the prejudice occasioned by that amendment to the other party could not be sufficiently cured by an order for costs or by an adjournment of the case.

22 That principle was of some longevity. However, it recent times it has been considered by the courts that the principle thus stated was too narrow because it did not take into account other factors which are relevant to determining whether it is in the interests of justice to allow an amendment, and particularly a late amendment to a pleading.

23 Ultimately those other factors led the High Court in AON Risk Services Australia Ltd v. Australian National University[3] to significantly modify the principle stated by the Court of Appeal in Cropper v Smith. In doing so, the High Court gave some weight to the role which case management has now come to play in the efficient, economic and just disposition by the courts of their business.

24 In particular, the High Court held that the question of doing justice between the parties is not confined merely to a consideration whether the party, seeking the amendment, might suffer prejudice if it were not permitted to amend its pleadings, and if any consequent prejudice to the other party could be cured by an order for adjournment or costs.

25 The court held that a number of other factors are relevant including the following. First, it recognised that the parties each have a right to the timely disposition of a proceeding. In that respect, the plurality of the High Court said[4]:**

"Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings."

**26 Secondly, the High Court considered that it was important to take into account the strain which litigation imposes on litigants, and thus the effect on litigants of amendments made to the case which they are required to meet, particularly when the amendments are made at a late stage.

27 Thirdly, the High Court considered that a court is obliged to consider the effect that an order, granting an application to amend a proceeding, might have on other litigation and other business which is before the court, and particularly on the court's ability to deal with and dispose of that litigation in a timely, orderly and efficient manner.

28 The principles stated by the High Court in AON were applied by J Forrest J in Tinworth v. WV Management Pty Ltd & Anor.[5] In that case the plaintiff claimed damages against two defendants for negligence, alleging he had contracted Q Fever while employed at the Wodonga abattoirs.

29 The case came on for trial before His Honour at Wodonga. At the commencement of the trial and after the empanelment of the jury, the first defendant sought to amend its defence to plead, inter alia, a defence of voluntary assumption of risk and a defence under s 134AB(12) of the Accident Compensation Act.

30 Forrest J did not allow the amendments to be made. In doing so, His Honour took into account a number of factors, including the late stage at which the application to amend the defence was made, the fact that the application had not been raised at earlier directions hearings when the opportunity to do so was available to the defendant, and the fact that no satisfactory explanation was given for the failure of the defendant to apply to amend its defence early.

31 Ultimately, the test which I must apply is whether the demands of justice require me to permit the defendant to amend its defence in the form for which it applies. On the one hand, the court should not lightly refuse an application for such an amendment, which, if allowed, might enable the defendant to raise a legitimate defence to the proceeding. On the other hand, in this case significant factors have been pointed to by Mr Richards which militate against allowing the amendment.

32 In my view, in combination those factors lead to the conclusion that it is in the interests of justice that I should refuse the application to amend the defence in the manner in which it has been applied. Those factors are as follows.

33 First, as I stated, the defendant has not proffered any explanation at all for the late stage at which the application is made. The case has been fully contested. It commenced with an application in the County Court in April 2012 for leave under s 134AB(16)(b). Since then there have been directions hearings. The interlocutory steps have been undertaken and completed. Mediation has taken place. At all of those stages the defendant had ample opportunity to consider the point and to decide whether to plead it. As I stated, no reason has been given for its failure to plead the defence at that stage.

34 Secondly, there would be clear prejudice to the plaintiff if I were to permit the amendment to be made. If I permitted the amendment, the plaintiff would need to apply for an extension of time under s 23A of the Limitation of Actions Act, and therefore the trial would need to be adjourned. As a result, the plaintiff would lose his place in the list. On any view, at the very least, that would occasion six months delay to the plaintiff if he succeeded in his s 23A application.

35 The next circuit in this court will not take place until February 2014. It is, in my view, quite feasible that an application under s 23A might not be heard and determined by then, given the heavy demands which at the moment this court is subjected to. If that were to occur, and if the plaintiff ultimately were to succeed in his s 23A application, then he would not be able to have his case heard in Bendigo at trial until August 2014, that is 12 months hence.

36 In addition to that, of course, if the plaintiff did gain a place in either of those two lists, he would not be guaranteed of having the case heard. At the moment his case is next in the list. If it were to be relisted for February or August next year, it would take its place in the list, and, given the workload of the court, there is no guarantee the case would be reached at such a sitting.

37 The third consideration concerns the issue of the strain to the plaintiff. The case, as I say, was set down for hearing in March. It has been through all the interlocutory stages in which the plaintiff swore answers to interrogatories, mediation has taken place, and I understand, as is usual, the plaintiff has been subjected to medical examinations by doctors nominated by the defendant. Throughout all of those stages the plaintiff had a legitimate right to expect that the case would be heard and determined on its merits and on the defences then raised by the defendant in its defence.

38 For any person participating in litigation inevitably involves a large amount of strain, particularly in personal injury cases. In my view, it would be most unfortunate if the plaintiff, having come to this court expecting that his case would be heard, was now confronted with the position where, if I were to allow the amendment, he would need to have the case adjourned in order to make an application under s 23A of the Limitation of Actions Act.

39 The fourth matter concerns the interest of the public in the courts, including this court, dealing with litigation in an orderly, timely and efficient manner. The rules of this court as to delivery of pleadings and the like are designed to meet that end. If I were to allow the amendment, the case would go off by way of adjournment. As I stated, if the plaintiff ultimately acceded in his s 23A application, the case would need to be dealt with at another circuit. It would then be competing with other cases in the list.

40 Regrettably, this court can only afford to dedicate two circuits each year to the Bendigo area. Thus, if the case were to need to take its place, not in this circuit, but in a future circuit, it could well affect the orderly conduct of the court's business in those other circuits and could affect other litigation.

41 The fifth and final consideration is that raised by Mr Richards, namely, the public confidence in the administration of justice. If the plaintiff, having come to court and having gone through all the stages that I have outlined, were now required to have his case adjourned, and at this late stage to commence a s 23A application, in my view the public would have a legitimate right to be concerned as to whether this court was conducting its business in an orderly, efficient and particularly fair manner.

42 The public have a real interest in our administration of justice, and I think that if any member of the public were to be informed that, in circumstances such as those in this case, I were to allow an amendment, such a member of the public would rightly question whether this court was administering justice as it ought to be expected to.

43 Taking all those matters into account, I have decided that, taken in combination, the factors relied on by the plaintiff are such that it is in the interests of justice that I should not allow the application for amendment. In reaching that conclusion I have been conscious that I should not disallow the application unless there are good and cogent reasons for doing so. However, as I have outlined, I consider that there are strong reasons for refusing the application. Accordingly I shall refuse the application by the defendant for leave to amend its defence.**

Accident Compensation Act 1958

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Judgment (50 paragraphs)

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