That reference was a reference to Touma v Saparas . The appellants submitted it was an error to, as it were, treat Touma v Saparas as analogous to the case before the trial judge and in truth the case before the trial judge was much more analogous to the State of Queensland v J L Holdings . I would agree with the submission of counsel for the respondent that the mere reference by the trial judge to Touma v Saparas in the course of argument is insufficient to suggest it played a determinative role when he mentioned the case in neither of the two judgments he delivered. Counsel for the respondent says it cannot be erroneous to do no more than refer counsel to a case which the judge indicated might have some relevance. I would agree with that submission.
55 That leads to what might be regarded as the fifth alleged error. It was submitted that where the trial judge had set out the history of the matter and had referred to various adjournments of proceedings at various interlocutory stages without reasons being given, that suggested that the trial judge had fallen into error in attributing all, or most, of the blame to the appellants. As indicated earlier I do not think a fair reading of the trial judge's reasons for judgment does attribute all or most of the blame to the appellants.
56 The final error complained of was put in this way. It was submitted it was wrong of the trial judge to leave a case of this kind, with all the other 144 cases in the list, to be heard in the three week sitting commencing on 20 March without having regard to the special nature of these proceedings once it had been indicated to the trial judge on 29 March this was a major commercial action which involved a major change in its character in the middle of the proceedings, namely the introduction of a course of action based on s 592. The respondent submitted in evaluating whether that was an error one had to bear in mind the appellants had never at any stage, so far as the evidence or materials before this court reveals, sought directions in relation to affidavits or the discovery of documents or any other pre-trial procedural step characteristic of complex commercial litigation in the Supreme Court or the Federal Court. What the respondent says is correct but it leaves untouched, I think, the essential soundness of the appellants' proposition. Section 592 litigation is not common litigation in any court and, in particular, it is not common litigation in the District Court. It does depend on analysis of the records of companies not all of whose managers and directors may be available or willing to assist in explaining them. Late though the appellants made this point, it was a point that had some force and, accordingly, I would accept that an error of the kind contended for took place.
57 In the circumstances one turns next to whether this Court should exercise the discretion afresh or remit it to the District Court. It seems pointless to remit it to the District Court because all relevant materials are before this Court. One important matter is the need for the District Court to observe the integrity of its own process by adopting a strict approach to litigants before it in relation to procedural questions. The appellants do not challenge the trial judge's decision to put the matter in the running list. Once it was there, the solicitors for the appellants must have realised that there was every prospect that the matter would be called on for trial on some day after 20 March. The appellants could have sought to have the matter removed from the list at any time in the period 9 March to 20 March on the ground of the need for a special fixture in view of the residence and work commitments of the first appellant in Queensland. The appellants could have sought an adjournment on a ground of want of readiness. Difficulties about counsel could have been examined immediately after 9 March and overcome by briefing fresh counsel. The difficulties in relation to the liquidator's report on one view should have been appreciated when it came to hand in November 1999 and, in any event, could have been dealt with had the problem been adverted to immediately after 9 March. However, the question is this. Once the matter was, without any complaint, placed in the running list and once it is accepted there was sufficient time to have readied the matter for trial after 9 March, albeit with considerable effort, was it wrong for the judge to refuse an adjournment even though steps had not been taken after 9 March when the grant of an adjournment would not prejudice the respondent and when it would arguably prejudice the appellants?
58 It is clear, I think, that the refusal of the adjournment did prejudice the appellants in at least three ways. First, a perusal of the evidence tendered before the trial Judge on 30 March reveals that the defendants, now appellants, had a reasonably arguable case that from at least 3 June 1992 written orders were apparently received in the name of Hawker Equity Products Pty Limited, not Howitt and Spencer Pty Limited. Secondly, limitation defences had been pleaded which were not dealt with by the trial judge but which were at least arguable. Thirdly, there were s 592(2)(a) defences. There is no evidence in support of them but they were verified on affidavit and the possibility of their success was open.
59 The trial judge's reliance on what might be called the integrity and efficiency of the list is understandable but to have granted the adjournment could scarcely have prejudiced the operation of the running of the list in this case given there were 144 other matters and given this particular matter was not in fact reached on 29 March 2000.
60 The appellants reminded the court of a number of authorities.
61 First, State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 153-155:
"The Court in allowing the appeals before it adopted the words above of Bowen LJ in Cropper v Smith [(1974) 48 ALJR 481 at 482; 4 ALR 615 at 618] and said:
'As the defence, if established, would be a complete answer in either action, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants With the exception of the suggestion of prejudice arising in respect of the loss of the possible claim against the nominal defendant, the matters relied upon by the respondent in opposition to the amendment sought go at the most to delay and irregularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression is used.'
The majority in the Full Court dismissed these remarks saying that 'times have changed since 1884, and even since 1974'. They referred to a passage from the judgment of Toohey and Gaudron JJ in Sali v SPC Ltd [(1993) 67 ALJR 841 at 849; 116 ALR 625 at 636] where their Honours said:
'The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales [See GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketteman v Hansel Properties Pty Ltd [1987] AC 189; The Commonwealth v Verwayen (1990) 170 CLR 394]. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.'
The majority concluded:
'Unless we are to mouth the repeated cautions about discretionary judgments, case management, efficiency, practice and procedure, and the advantages of the managing judge, only to ignore them when it comes to the crunch, this appeal must be dismissed.'
It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
The majority emphasised that the primary judge, Kiefel J, was the trial judge, had been responsible for the management of the present case since 1994 and was in the best position to judge the effect of the proposed amendment. Even so, the application for leave to amend was made before a date was fixed for hearing. The date when fixed was six or so months ahead. It is not apparent that any complex issues of fact are raised by the amendment sought, but even if they are, in a hearing that is estimated to last some four months, they must surely be able to be accommodated. The fact that the new defence which the applicants seek to put in issue may possibly be met on reply by a plea such as that of estoppel or waiver does not suggest any reason for the refusal of the amendment. Moreover, whatever the state of the pleadings, the point which the applicants seek to raise by the amendment may not be avoided on trial if, as seems to be so, it would be apparent from the documents themselves. The purpose of the amendment was, according to the applicants, merely to avoid taking JLH by surprise. But if the amendment sought does raise a new defence and not merely a matter which JLH is required to prove in any event, it constitutes a substantial, if not complete, answer to JLH's claim. If it is arguable, the applicants should be permitted to argue it, provided that any prejudice to JLH might be compensated by costs. No doubt prejudice to JLH may also be averted, as Carr J in dissent in the court below pointed out, by appropriate orders expediting such procedures as the parties might seek to employ as a result of the amendment.
The majority in the Full Court considered that costs are not these days considered the 'healing medicine' they once were. They referred to the speech of Lord Griffiths in Ketteman v Hansel Properties Ltd [[1987] AC 189] and the decision of this Court in The Commonwealth v Verwayen [(1990) 170 CLR 394 at 464-465, 482]. In Ketteman Lord Griffiths said [[1987] AC 189 at 220]:
'justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes …'
In this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings.
In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."