The interlocutory appeals
9 The primary judge's interlocutory judgments of 7 November 2008 in respect of both the application by the appellant to further amend his points of claim on the one hand and to read the affidavit of Ms Margieson on the other, pre-dated the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. That decision was handed down on 5 August 2009. Nevertheless, it is apparent that his Honour essentially applied the principles later articulated by the High Court in that case.
10 With respect to the application by the appellant to further amend his points of claim, his Honour in his ex tempore judgment stated the applicable principles and referred to the relevant provisions of the Civil Procedure Act 2005, noting that the decision of the High Court in State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 was not decided on legislation such as now controls the power of amendment of documents in civil proceedings in New South Wales. Nevertheless, his Honour remarked that even in J L Holdings significant prejudice to an opposing party was likely to defeat an application to amend.
11 The primary judge then noted that the motion for leave to amend was made on the fifth day of the hearing (originally fixed for two days but which had extended to five days) at a time when the evidence had just concluded. Because the original hearing time had been extended to five days, no doubt to enable the evidence to be concluded in one hit, his Honour acknowledged that it would be necessary to adjourn the hearing for some weeks for the purpose of hearing submissions. It was in fact adjourned to 2 December.
12 His Honour then stated the nature of the proposed amendment and summarised the parties' submissions with respect thereto. In this respect it is to be noted that both the Minister and the Department opposed the amendment on three grounds, of which his Honour upheld two.
13 The proposed amendments went to the issue of a survey by the Council of its ratepayers seeking their approval of the proposed variance of the Council's general income which would increase the rates made and levied during the years in respect of which the variance was sought. At [17] his Honour indicated that the proposed amendments raised a new issue as to whether there was a better way of conducting the Council's survey and which was the subject of criticism in the appellant's existing points of claim.
14 His Honour therefore accepted that if the amendment was to be allowed, the respondents would be prejudiced due to the lateness in seeking it. Had it been sought out in a timely way, it was likely that the Council would have called other or additional evidence and conducted its cross-examination differently. Further, if the amendment was to be allowed, the respondents would need to be afforded the opportunity to call further evidence and to recall two expert witnesses for further questioning.
15 His Honour thus held that to allow the amendment would disrupt and extend the further hearing of the case and adversely affect its timely disposal. He also considered that there had been insufficient explanation of the delay in seeking leave to amend the points of claim until the fifth day of the hearing when the evidence had concluded.
16 In his written submissions the appellant acknowledged that J L Holdings was no longer good law in view of the decision of the High Court in Aon Risk. Nevertheless, he submitted that the matter, the subject of the amendment, had been foreshadowed in the appellant's opening submissions on the Friday before the trial and had arisen out of the statement made in an expert report by a Mr Sargeant (who was called by the Council) and which had been served shortly before trial. It was noted that although opposed to the amendment, the Minister and the Department did not suggest that they would be prejudiced if it were to be allowed. It was only the Council that asserted such prejudice.
17 It was submitted that his Honour erred in finding that the Council would be prejudiced or that there would be any prejudice to the administration of the Court's lists. Even if the Council considered it necessary to call further evidence (which the appellant denied), as the proceedings were to be adjourned in any event for several weeks, any such prejudice in relation to the calling of further evidence or the recalling of expert witnesses would be ameliorated.
18 The foregoing submissions overlook the fact that at the time the application for amendment was made the evidence had concluded; the hearing of the evidence had taken five rather than the two days allotted and the reason for the adjournment (which was purely for the purpose of addresses) was due to the fact that the hearing of the evidence had overrun its allotted time.
19 His Honour accepted, as in my view he was entitled to do, that in the event that the amendment was allowed, any further evidence would need to be called by the Council on at least the first of the two days set aside for the hearing of submissions. This may well have caused those two days to be extended and to potentially take up time that might have been allotted to the hearing of other litigants' cases.
20 In Aon Risk all the Justices were at one in emphasising the importance of case management considerations and proper use of court resources when dealing with an amendment such as that proposed in the present case as well as the prejudice to the opposing party or parties and the lack of any proper explanation for the delay in making the relevant application.
21 Furthermore, ss 57 and 58 of the Civil Procedure Act 2005, which applies to the Land and Environment Court as it is a court referred to in Schedule 1 to that Act, required that court, in deciding whether to make an order for the amendment of a document, to "seek to act in accordance with the dictates of justice" and, for this purpose, to have regard to, inter alia, "the efficient disposal of the business of the court", "the efficient use of available judicial and administrative resources" and "the timely disposal of the proceedings … at a cost affordable by the respective parties".
22 The observation of Allsop P in Bi v Mourad [2010] NSWCA 17 at [47] is also instructive:
'Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act . … The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice ' .
23 In the present case the primary judge found that there was prejudice and, importantly, considered that allowing the amendment would disrupt and extend the hearing of the case and thus adversely affect its timely disposal. That problem would not have been alleviated by the fact that due to the overrun of the hearing of the evidence it was necessary to adjourn the proceedings for some weeks for the purpose of hearing submissions.
24 Accordingly, in my view the appellant has not demonstrated that his Honour's exercise of discretion to refuse the amendment has miscarried with the consequence that the appeal against that refusal should be dismissed.
25 So far as his Honour's rejection of Ms Margieson's affidavit is concerned, it is to be noted that that affidavit was sworn on 3 November 2008 (the first day of the trial) but not served until 5 November. Again, the Council asserted that it was prejudiced by the late serving of that affidavit, a submission which his Honour accepted. In it Ms Margieson, a ratepayer, deposed to a conversation she had had with a person conducting a telephone survey on behalf of the Council with respect to a matter that was allegedly relevant to the issues in the substantive proceedings.
26 The matter of concern to the Council by the late service of the affidavit was that it wished to find and speak to the person who undertook the survey and with whom allegedly Ms Margieson had spoken, in order to confirm the accuracy of the conversation to which she had deposed. It also wished to ascertain whether Ms Margieson had objected to the extra rates she would have to pay over the next seven years if that was necessary to advance the projects in respect of which the Council had sought a variance of its general income.
27 It appeared that the person who had conducted the survey had left the employ of the marketing firm engaged by Council to conduct the survey. Its prejudice, which his Honour accepted, was its inability to make enquiries as to the whereabouts of the person who conducted the survey and with whom Ms Margieson asserted she had had the conversation.
28 The appellant submitted that his Honour erred in finding prejudice given that the marketing company had destroyed its worksheets, making it impossible to check whether the person conducting the survey had actually telephoned Ms Margieson notwithstanding that her number was on a list of numbers to be called during the survey. His Honour accepted the Council's submission that had the affidavit been served in a timely way instead of on the third day of the hearing, there would have been a reasonable opportunity for it to make further enquiries as to the whereabouts of the person who conducted the survey.
29 Finally, his Honour gave weight to the fact that there had been no satisfactory explanation provided by the appellant for the late service of Ms Margieson's affidavit.
30 The appellant submitted that even if the Council was initially prejudiced by the lack of time within which it could investigate the whereabouts of the person who conducted the survey, nevertheless his Honour had erred in failing to take into account the fact that that prejudice would be mitigated given the necessity for there to be an adjournment for some weeks between the conclusion of the evidence on 7 November and the commencement of submissions on 2 December.
31 The Council submitted that his Honour was entitled to reject Ms Margieson's evidence merely by virtue of the appellant's delay in seeking to adduce her evidence well after directions had been made to serve all evidence prior to the trial commencing - a delay which remained unexplained. That was sufficient of itself for the Court to reject the appellant's submissions: Aon Risk at [103].
32 In my view the appellant's submissions should be rejected. Although his Honour did not expressly take into account the fact that the hearing was to be adjourned for the purpose of submissions as a consequence of the overrun of the evidence, nevertheless the late service of Ms Margieson's affidavit of itself deprived the Council of the opportunity to ascertain the whereabouts of the person who conducted the survey, an opportunity it would have had had the affidavit been filed in accordance with the directions for the filing of evidence.
33 Again, in my view the failure to explain that delay is fatal to the appellant's application. Accordingly, I see no proper basis upon which it can be suggested that his Honour's discretion to reject Ms Margieson's affidavit miscarried.
34 For the foregoing reasons I would grant leave to appeal against the interlocutory decisions of 7 November 2008, but dismiss each appeal. I now turn to the substantive appeal.