On 4 May 2000 the plaintiff discovered six further bundles of documents including Reports A and B.
18 Mr Blackburn drew attention to the terms of Teakles' letter of 4 May 2000 and submitted that it provided an inadequate explanation for the plaintiff's incomplete discovery.
19 Part 20 Rule 1(2) of the Supreme Court Rules ("the SCR") provides, inter alia: "all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the pleadings."
20 In Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron & McHugh JJ observed at 155:
"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."
21 Their Honours noted that the Full Court in that case had been of the view that costs were not to be considered "the healing medicine" they once were and that the Full Court had referred to the speech of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 in this respect. Their Honours went on to observe that the subject litigation was of a commercial nature and that there was nothing about it which would indicate that it occasioned personal strain such as to justify the conclusion that costs would not be an adequate remedy for prejudice caused by the amendment to the pleadings sought. The parties were a developer and a State Government. The application to amend the defence was made six months prior to the date fixed for hearing.
22 As I read the judgment of Dawson, Gaudron & McHugh JJ in Queensland v J L Holdings (at p. 155) implicit in their Honour's reference to the nature of the litigation and to the nature of the parties in that case is a recognition that the interests of justice may in the case of a personal litigant take into account considerations such as those to which Lord Griffiths in Ketteman adverted. It is necessary to look both to the conduct parties and to the prejudice which each might suffer in determining an application such as this.
23 When the matter was first before me on 25 May 2000 Mr Evatt tendered a letter signed on behalf of the Principal Registrar of the Court, dated 2 May 2000, advising that the plaintiff's application to waive the payment of a transcript fee had been successful. He relied on this as evidence of the plaintiff's impecuniosity. Otherwise there was, at that time, no evidence touching on the question of any particular prejudice to which the plaintiff might be subject in the event of the grant of the leave sought (other than such prejudice as might be presumed to flow to a personal litigant who has prepared himself for a trial and finds the hearing date threatened by a late application to amend). The matter was stood over to 31 May 2000 to permit Mr Evatt to lead further evidence.
24 On 31 May 2000 Mr Evatt read an affidavit sworn by the plaintiff on 26 May 2000. The plaintiff states that he resides in Greenslopes, Queensland. He is in a parlous financial position and depends upon the unemployment benefit supplemented by income received from casual maintenance work. The plaintiff proposes to travel to Sydney by bus in order to pursue his claim in these proceedings. He will be staying in Youth Hostels Association accommodation during the trial.
25 Prior to 23 May 2000 (when he received a copy of a letter prepared by the defendants' solicitors) the plaintiff had not been aware that he may need to obtain witnesses. He says that had he known of that need even six months ago he could have taken steps to locate witnesses. In January 2000 the plaintiff met one of the backpackers who had stayed at his hostel. That person would have been able to give evidence as to the safety precautions which were in place. The plaintiff had not taken a note of the person's full name and address and he has no means of contacting him.
26 The plaintiff said that he is endeavouring to establish the identity of fire officers who inspected the hostel at the relevant time. One such officer, Mr Drummond, has not returned his calls. Mr Evatt informed me that the plaintiff has since learned that Mr Drummond has agreed to give evidence on behalf of the defendants in the proceedings.
27 The plaintiff planned to travel to Sydney on 7 June to attend conferences with his legal representatives. Generally, it would be difficult for him to look for witnesses and keep his planned schedule with respect to conferences with counsel.
28 The plaintiff states that he has located a person described as "a Brisbane professional man" who is able to give evidence which would be supportive of his case in the event that the defendants are granted leave to plead justification. That witness is willing to come to Sydney and attend Court but he requires reimbursement of his fares and expenses.
29 The plaintiff says that he may have been able to borrow from friends and relatives an amount of $1,000 or $2,000. However, those to whom he might turn for assistance are themselves not well off and would need time to save money in order to lend it to him. I view that assertion with some circumspection. The plaintiff gives nothing in the way of detail to give substance to his hope that friends (themselves on apparently limited incomes) might if given enough time save up money to assist him with his legal proceedings. In any event I am not inclined to view considerations of this sort as bearing significantly on the question of whether to grant the defendants leave to amend. Difficulties the plaintiff may have in obtaining witnesses (consequent upon the grant of leave) may be met by vacating the trial date and an appropriate order for costs.