The proposed cross-claim against Baccus Investments
14I am not able to come to the same conclusion in relation to the proposed claim against Baccus Investments.
15The defendant has repeatedly had opportunities to bring cross claims. This cross-claim is said to be brought on the basis that Baccus Investments was the agent for the plaintiff in relation to the entry into the credit contract and mortgage; that a representation was made in a supplementary product disclosure statement which was provided to the plaintiff before the credit contract and mortgage were entered into; that the supplementary product disclosure statement contained a representation which was not true; if that untrue statement had not been made, the plaintiff would not have entered the credit contract and mortgage and the defendant would not have suffered the loss that she suffered, as a result of entering the credit contract and mortgage. It was explained that the terms of the product disclosure statement had only come to be known to the defendant in August 2010.
16It was accepted by the defendant that if the leave sought was given, the hearing of the plaintiff's claim would be considerably affected. Evidence would have to be prepared and the hearing would be considerably lengthened. The alternative course was for the defendant to bring her claim against Baccus Investments by a separate statement of claim. That might involve some additional expense for her, but when contrasted to the expense and delay which would result for the plaintiff, if the leave sought were granted, when considered together with the expenses and delays which have already resulted from the defendant's approach to the conduct of these proceedings, I am satisfied that the leave sought may not justly be permitted.
17I am satisfied that in these circumstances, as discussed by the Chief Justice in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [35], the further delay in hearing the plaintiff's claim occasioned by the leave sought in this respect would result in further delay, which in the circumstances of this case, 'would be such as to undermine confidence in the administration of civil justice'. In the circumstances here arising the following observations of Gummow, Hayne, Crennan, Kiefel and Bell JJ are apt to be repeated:
"98 Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99 In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. (Cropper v Smith (1884) 26 Ch D 700 at 711.) Such a view may largely explain the decision of this Court in Shannon v Lee Chun, (Shannon v Lee Chun (1912) 15 CLR 257; [1912] HCA 52. See the reasons of Barton J at 262-263, O'Connor J at 264 and Isaacs J at 266.) which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. (See The Commonwealth v Verwayen (1990) 170 CLR 394 at 464-465 per Toohey J; [1990] HCA 39.) In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
100 The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd,( Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, referred to in The Commonwealth v Verwayen (1990) 170 CLR 394 at 464-465 per Toohey J, 482 per Gaudron J.) that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. (Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 376-377 [37] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; [2006] HCA 32; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 715-716 per Samuels JA; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.) In Bomanite Pty Ltd v Slatex Corp Aust (Bomanite Pty Ltd v Slatex Corp Aust (1991) 32 FCR 379 at 392.) French J said of Bowen LJ's statements in Cropper v Smith:
" ... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
101 In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons. (Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155.) So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
102 The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
103 The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings.(Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 152.) Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case."
18In this case the explanation for delay lies in the consequences of information which came to light in August 2010. While that may be accepted, the result of the leave sought, further delay of this plaintiff's pursuit of the proceedings it initiated in December 2006, in respect of a loan for which neither the principle nor interest had ever been paid, in my view may not be justly countenanced.