Litigation takes speed

Adjournment applications and applications to amend out of time in civil proceedings just got more difficult. I have a feeling that the first time I said anything in court after I came to the Bar was an expression, to the Supreme Court’s Master Efthim, of how melancholy I felt about regrettably having little choice but to — ahem — respectfully submit that in all the circumstances, the only fair thing to do was to adjourn the following day’s trial of a commercial matter.  Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 was what got me my first victory as counsel, even if I did join the elite club (or possibly even achieve a unique status in the history of the Victorian Bar) of suffering an order for solicitor-client costs against my client on my first appearance.  It was an excellent introduction to my new reality of having to be the frontman in other people’s cases on short notice.

I knew Queensland’s Case (I could not resist) did not say exactly what many people lazily believed it to say. But the plurality (Justices Dawson, Gaudron and McHugh) did say:

‘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.‘

I knew it could not last.  In fact my reaction to Justice Kiefel’s appointment to the Highkers was to note to myself that her Honour was the no-nonsense trial judge who had refused the adjournment in Queensland’s Case only to be rolled on appeal. I figured she would be plotting her revenge against that rare indignity.  Sure enough, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 a plurality of Justices Gummow, Hayne, Crennan, Kiefel and Bell today shredded Queensland’s Case, excoriated four ACT Supreme Court judges‘ toleration of a radical amendment at trial which caused it to go off for months, threw a grenade full of speed and a bucketfull of steroids into litigation, especially commercial litigation, and implicitly gave Justice Finkelstein permission to look towards a uranium enriched rocket docket.  Justice Heydon and Chief Justice French were so excited about the need for speed that they weighed in with separate concurring decisions.  This is the penultimate, swingeing, paragraph in the decision (from Justice Heydon’s reasons):

‘The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.’

His Honour also said:

‘133  In relation to Queensland v J L Holdings Pty Ltd, it is sufficient to hold that, at least in jurisdictions having rules similar to rr 21 and 502, that case has ceased to be of authority.  It is necessary to apply the Rules without any preconceptions derived from what was said in that case.  There is a common opinion – it is far from universal, but it is common – within the judiciary and the legal profession that Queensland v J L Holdings Pty Ltd, whether it has been correctly understood or not, has had a damaging influence on the conduct of litigation.  One judge who held that opinion was Bryson J.  In a passage which merits preservation from the oblivion of unreported judgments, he pointed out one undesirable consequence of the way Queensland v J L Holdings Pty Ltd has been understood [footnote: Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2000] NSWSC 753 at [15]]:

“In view of the state of the law governing allowance of amendments, amendment applications brought forward before the trial began were treated with uncomplaining supine liberality, notwithstanding that they sometimes showed that problems had been addressed years after they should have been.  I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions.  When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent.  A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty.  It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest.”

134 Below the approach of ANU to the conduct of this litigation and the approach of the Supreme Court to its resolution will be described. Those approaches reflect a certain culture and mentality. If Queensland v J L Holdings Pty Ltd is a cause of that culture and mentality, the common opinion just referred to receives considerable support.’

The most accessible part of the plurality’s decision is as follows:

‘92 The purposes stated in r 21 reflect principles of case management by the courts.  Such management is now an accepted aspect of the system of civil justice administered by courts in Australia.  It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process[155].  In its report in 2000, Managing Justice:  A review of the federal civil justice system[156], the Australian Law Reform Commission noted that:  “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”[157].

93 Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the court and upon other litigants.  In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected[158]:

“[t]he 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 …”.

94 It will be recalled that in J L Holdings the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed “except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable”[159].  Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times[160].  In Gale v Superdrug Stores Plc[161] Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed.  Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd[162], said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants.  Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants[163].

95 The statement of Waller LJ identifies a fundamental premise of case management.  What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question.  The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management.  The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC.  To say that case management principles should only be applied “in extreme circumstances” to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.

96 An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment[164].  So stated it suggests that a party has something approaching a right to an amendment.  That is not the case.  The “right” spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue.  It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute[165].  Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power.

97 The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules.  It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind[166].  The purposes stated in r 21 cannot be ignored.  The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost.  There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.

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[167].  Such a view may largely explain the decision of this Court in Shannon v Lee Chun[168], 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[169].  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[170], 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[171].  In Bomanite Pty Ltd v Slatex Corp Aust[172] 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[173].  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[174].  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.

[155] See for example Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197 at 1207 per Lord Griffiths; and see Galea v Galea (1990) 19 NSWLR 263 at 281‑282 per Kirby ACJ; State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493‑494 per Gleeson CJ; and Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395 per Wilcox and Gummow JJ.

[156] Australian Law Reform Commission, Report No 89.

[157] Australian Law Reform Commission, Managing Justice:  A review of the federal civil justice system, Report No 89, (2000) at [6.3].

[158] Sali v SPC Ltd (1993) 67 ALJR 841 at 849; and see also at 843‑844 per Brennan, Deane and McHugh JJ; 116 ALR 625 at 636, 629.

[159] Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154.

[160] Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154.

[161] [1996] 1 WLR 1089 at 1098; [1996] 3 All ER 468 at 477.

[162] [1998] EWCA Civ 1894.

[163] Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.

[164] Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154:  “If it is arguable, the applicants should be permitted to argue it, provided that any prejudice to [J L Holdings] might be compensated by costs”; and at 155:  “[Case management] … should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence”.

[165] As observed by Jolowicz, On Civil Procedure, (2000) at 62.

[166] See for example the Second Reading Speech to the Civil Procedure Bill 2005 and Uniform Civil Procedure Rules 2005 (NSW), New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 6 April 2005 at 15115.

[167] Cropper v Smith (1884) 26 Ch D 700 at 711.

[168] (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.

[169] See The Commonwealth v Verwayen (1990) 170 CLR 394 at 464‑465 per Toohey J; [1990] HCA 39.

[170] [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.

[171] 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.

[172] (1991) 32 FCR 379 at 392.

[173] Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155.

[174] Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 152.’