Plaintiff v First Defendant

2 On 18 November 2022, there was a further directions hearing. At this hearing, Ms Goodrich was represented by Mr J Tohme of Tohme Lawyers who had been retained as Ms Goodrich's new solicitors in early September 2022. During the hearing on 18 November 2022, Mr Tohme foreshadowed that the plaintiff would be seeking orders for the filing of a proposed further FASOC on or before 7 April 2023. Mr Tohme submitted that the pleadings needed to be amended to permit the plaintiff to plead a serious injury claim under the Wrongs Act 1958. Orders were made on 18 November 2022 requiring the plaintiff to file and serve any proposed further further amended statement of claim ('PFFASOC') by 4pm on 9 December 2022. The directions hearing was adjourned to 15 December 2022 to provide the defendants with an opportunity to make submissions in the event that they objected to the filing of the PFFASOC.

3 On 9 December 2022, the plaintiff filed and served a PFFASOC. The PFFASOC alleges that:

• The first defendant ('KRC') owed the plaintiff a duty to provide her with a safe environment while the plaintiff was using KRC's facilities [3AA];
• RV owed the plaintiff a duty to provide her with a safe environment while the plaintiff was using clubs registered under the Racing Rules, including but not limited to KRC's facilities [3AB];
• The plaintiff was subject to bullying at KRC in the period between late-2009 and 2013. In failing to take certain responsive actions, RV was negligent and/or in breach of the good faith obligation and/or in breach of RV's statutory duty and/or in breach of the RV contract [12H];
• In failing to conduct any adequate investigation into the plaintiff's complaints of bullying KRC was negligent and/or in breach of the KRC contract [12F];
• KRC was negligent and in breach of their duty to the plaintiff by imposing the first suspension (14 August 2013) on the plaintiff [14C], and the second suspension (22 October 2013) [29B];
• In respect of the claim regarding the conduct of RV's Stewards in conducting a mediation between the plaintiff and KRC in relation to the first suspension imposed on her by KRC ('the mediation claim'), RV was negligent and/or in breach of its duty to the plaintiff [19B];
• In respect of the claim regarding RV's conduct in its investigation of a dispute between the plaintiff and KRC ('the RV investigation claim'), by failing or refusing to take certain actions, RV was negligent and/or in breach of the good faith obligation and/or in breach of RV's statutory duty and/or in breach of the RV contract [36D];
• In respect of damages, the plaintiff claims to have suffered a significant injury as defined in pt VBA of the Wrongs Act 1958, for which she claims general damages.

4 In Billington v Sussan Corporation Australia Pty Ltd,[1] the Court of Appeal set out the matters which must be taken into account in determining an application for leave to amend a statement of claim:

In determining the application by the applicant for leave to amend the statement of claim, the judge was required to take into account the objects specified by s 9(1) of the Civil Procedure Act. Further, in Aon Risk Services Australia Pty Ltd v Australian National University, the High Court considered the principles that are relevant to an application for leave to amend a pleading. In that case, the Court made it clear that, in determining such an application, among other matters, a court is required to take into account principles of proper case management, where there has been substantial delay and wasted costs pertaining to the application. In particular, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:

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 JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been 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.

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.

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.

In Northern Health,[2] Kyrou and McLeish JJA, in their joint judgment, stated the applicable principles in the following terms:

The principles pertaining to an application to amend a pleading were explained in Aon Risk Services Australia Ltd v Australian National University. As set out in the reasons of J Forrest J in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London, the factors that the High Court in Aon considered as relevant to an application to amend a pleading include:

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[3]

5 In the absence of the plaintiff being granted leave to amend, the proceeding is ready to be set down for trial in the week commencing 24 April 2023. If leave to amend is granted, there is no prospect of the trial commencing in the first half of next year. Further, there is a real prospect that the trial will not be listed for hearing at all in 2023.

6 The proposed amendments are substantial. The claim for damages arising out of alleged bullying of the plaintiff by other trainers at KRC is an entirely new claim. Further, as presently pleaded, the allegation of bullying does not actually identify the alleged perpetrators of the bullying. When I raised this omission with Ms Angelowitsch, who appeared for the plaintiff on 15 December 2022, Ms Angelowitsch submitted that her instructions were that there were 'multiple trainers' involved in the alleged bullying.[4] If the plaintiff were granted leave to file the PFFASOC, it would be necessary for the plaintiff to provide particulars identifying the individual trainers who are alleged to have bullied the plaintiff. It would then be necessary for the defendants to obtain evidence from the alleged perpetrators of the bullying. Those individuals would be addressing alleged conduct which occurred between 2009 and 2013. There is a real prospect that those individuals would have little, if any, recollection of the alleged bullying.

7 Since August 2019 when the proceeding was commenced, there has been no previous allegation that the plaintiff was bullied by other trainers at KRC. As such, there has been no justification for the defendants to gather any evidence in relation to alleged bullying of the plaintiff. The significant passage of time since the bullying is alleged to have occurred places the defendants in a position of real prejudice in responding to the plaintiff's allegations.

8 The plaintiff wishes to allege that she has sustained a major depressive disorder as a consequence of being bullied by other trainers at KRC. A report of Dr Justin Lewis dated 14 December 2022 has been served on the defendants. The defendants have a right to refer the question of whether the plaintiff has suffered a significant injury to a medical panel.[5] Ms Angelowitsch conceded that if there is a referral there would be likely to be a delay of six months before the panel delivered reasons addressing the question of whether the plaintiff has suffered a major depressive disorder as a consequence of the alleged bullying.

9 The FASOC filed on 8 February 2022 includes a claim at [48] for loss and damage, including by reason of 'stress-related injury'. Notwithstanding that the plaintiff has alleged since February 2022 that she sustained loss and damage by reason of a stress-related injury, it is only very recently that the plaintiff has taken steps to obtain serious injury certification which would permit her to claim general damages. No explanation for this delay has been provided. Nor is there any satisfactory explanation as to why the plaintiff has not previously made a claim for damages based on alleged bullying. The only explanation which has been provided is that Mr Tohme was retained in early September 2022 and formed the opinion that the pleading needed to be amended to include a claim pursuant to the Wrongs Act based on alleged bullying of the plaintiff. This does not constitute an adequate explanation for the delay in proposing amendments which fundamentally alter the factual and legal basis of the claims which the defendants would have to respond to.[6]

10 The application for leave to amend is not made on the eve of the trial. Nevertheless, it is made in circumstances where the proceeding has been on foot since August 2019 and there has been significant contested litigation in respect of the amended statement of claim filed on 13 December 2019. Further, the inevitable consequence of granting the application for leave to amend is that the trial will not be able to proceed in late-April 2023.

11 The interests of justice will not be served if there is any further delay in setting down the trial of this proceeding. The plaintiff's claim as presently pleaded will require the Court to determine disputed factual matters which include the plaintiff's suspension as a trainer in August and September 2013. Any further delay in setting the proceeding down for trial poses a significant risk that the capacity of witnesses to recall events which occurred nearly 10 years ago will be compromised.

12 The application of the principles set out in the judgment of Kyrou and McLeish JJA in Northern Health[7] strongly support rejection of the application for leave to amend. First, there will be substantial delay if the application is granted. Second, there is a real risk of an irreparable element of unfair prejudice caused by the amendment. If the application is granted, the defendants will need to gather evidence from an as yet unidentified group of trainers alleged to have bullied the plaintiff between 2009 and 2013. The defendants will be required to gather evidence in respect of allegations which could have been made more than three years ago when the proceeding was commenced. Further, any additional delay in setting the proceeding down for trial poses a real risk of prejudice to the defendants' capacity to defend the allegations in the current version of the statement of claim. Third, case management considerations weigh against granting the application for leave to amend. Since delivering judgment in the appeal from the summary judgment order on 25 November 2021 I have had responsibility for case management of this proceeding. If the application for leave to amend is not granted, the trial can proceed before me in the week commencing 24 April 2023 on an estimate of 10 days' hearing. However, due to other trial commitments already listed for the second half of 2023, I have limited capacity to hear a 10 day trial after 30 June 2023. If the application for leave to amend is granted, there is a significant risk that the trial will not be able to proceed until after February 2024. Fourth, no satisfactory explanation has been given for seeking the amendment more than three years after the commencement of the proceeding.

13 The overarching purpose of the Civil Procedure Act is the just, efficient, timely and cost-effective resolution of the real issues in dispute. Listing the proceeding for trial at the earliest opportunity is consistent with this overarching purpose. On the other hand, the inevitable and significant delay in listing the trial for hearing if the application for leave to amend is granted, is not consistent with this overarching purpose. In reaching this conclusion, I am mindful of the fact that the plaintiff has recently obtained a medical report of Dr Lewis which is consistent with the plaintiff having a major depressive disorder as a consequence of having been bullied. However, the weight to be attributed to this report must be balanced against: a) the significant prejudice to the defendants if the application is granted; and b) the absence of any satisfactory explanation for the delay in seeking the amendments pleaded in the PFFASOC.

14 The plaintiff's application for leave to amend in accordance with the PFFASOC is dismissed subject to further order. The plaintiff's claim will proceed on the basis of the FASOC filed on 4 January 2022. I will provide the parties with an opportunity to make submissions on costs and the pretrial directions to be made to facilitate the proceeding being listed for hearing in the week commencing 24 April 2023.

[1] [2020] VSCA 12.

[2] [2015] VSCA 172.

[3] Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25]-[26].

[4] Transcript of Proceeding, T 25 L 15 (15 December 2022).

[5] Wrongs Act 1958 s 28LWE.

[6] Cf Billington v Sussan Corporation Australia Pty Ltd [2020] VSC 12 [40].

[7] Northern Health v Kuipers [2015] VSCA 172.