SYMONDS and ORS v EGAN NATIONAL VALUERS

Court of Appeal (NSW)|1996-02-26|Before: Mahoney P

SYMONDS and ORS v EGAN NATIONAL VALUERS (NSW) PTY LTD

MAHONEY P, PRIESTLEY and HANDLEY, JJA 26 February 1996, 26 February 1996

Application to amend pleadings in proceeding during hearing of the proceeding - Judge granted application in part - Application for leave to appeal during trial - Principles and approach discussed

Mahoney P The Court has before it applications for leave to appeal in respect of decisions given by a trial judge in a proceeding, the trial of which is still proceeding. The decisions were given in the course of the trial. The applications have now been dealt with over a period of some hours.

The Court has indicated that it does not desire to hear the respondent to the applications in respect of two of them, which I shall describe as the application based on apprehended bias and the application in relation to security for costs. In my opinion each of those applications should be dismissed with costs.

There is a further application which I shall describe as the application to amend. During the course of the proceeding before the judge, an application was made to him for leave to file a second amended statement of claim. Following a consideration of the submissions, the learned judge in the judgment of 7 February 1996 granted the application to amend as to part but refused it as to part. It is in

relation to the part of the application which was refused that leave to appeal is now sought. I shall not deal with the detail of the application for leave to appeal and the particular portion of the application for amendment which was in question. The matters have been referred to at length by counsel in their written submissions and are dealt with by the learned judge in his judgment of 7 February 1996.

It is proper to record that if a case is made out of sufficient moment to warrant the intervention of this Court during the course of a trial (and an application in relation to an amendment of pleadings would be a relevant application), then this Court will of course grant leave to appeal. But, in my opinion, before the Court will intervene to interfere with the discretion of a trial judge in relation to the amendment of pleadings while a trial is proceeding, a substantial case - I would go so far as to describe it as a special case - must be made out. The case must be one which, having regard to the desirability of not interfering with the course of a trial, is sufficient to outweigh the considerations of costs, of convenience and the like, sufficiently to warrant that leave to appeal be granted at such a stage.

This Court will have regard amongst other things to the fact that a trial judge dealing with matters such as pleadings always has within his power the grant of such amendments as may be necessary from time to time as the case progresses. I do not suggest that pleadings arrived at in a case such as this will be lightly

amended, particularly where, as it has been described, the DCM process, the process of preparation of a case for trial by case management, has been applied to the proceeding. It is obviously intended that where a case has been dealt with under such procedure, the material presented to the judge when the trial commences will be the material on which the trial will proceed. There are, of course, exceptions to this and a trial judge will be vigilant to make such orders as the considerations of justice require. But the whole purpose of case management procedures of this kind and other kinds is to ensure that the parties may safely go to trial with the material which has been brought before the Court at the time prescribed by the relevant case management procedures.

I emphasise that it is within the discretion of a trial judge, as it is within the discretion of the judge in the present case, to grant such amendments from time to time as justice may require. No doubt the judge in deciding whether an amendment is to be granted at any time will have regard to the necessity to ensure that cases are disposed of in due course. The cost and delay involved in applications for amendment of pleadings is a matter to be borne in mind. The judge dealing with such applications will no doubt have regard amongst other things to the intention of the case management rules, to the need to conserve cost and time, and to the extent to which justice will be served by the maintenance of them.

Having made those general remarks, I should say that in the present case I see no reason to interfere with the judge's decision. The judge set forth in his judgment of 7 February the basic reasons why he refused leave to amend in this regard. Even if the judge were wrong and it fell to this Court to exercise the discretion, in the circumstances to which Mr Spender QC for the applicant has referred, there would, I think, be ample grounds for a judge and this Court, on proper principles, to refuse the present application.

In all the circumstances, I am of the opinion that this is not a proper case in which leave to appeal should be granted. I propose that this application be dismissed. It must be dismissed with costs.

The order of the Court therefore is that each of the applications will be dismissed with costs.

Counsel for the Claimant: J Spender QC/DJ Hammersclag Solicitors for the Claimant: Dunhill Madden Butler Counsel for the Opponent: RR Stitt QC/JB Simpkins Solicitors for the Opponent: Phillips Fox

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cited By (1)