Aistrope & Aistrope v South Australian Housing Trust - [2015] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
AISTROPE & AISTROPE v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SASC 202
Reasons of Judge Bochner a Master of the Supreme Court
22 December 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Amendment to statement of claim and delay.
Supreme Court Civil Rules 2006 (SA) rr 3, 90, 98 and 99; Federal Court of Australia Act 1976 (Cth) s 37M; South Australian Housing Trust Act 1995 (SA) s 5, referred to.
Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59; Pope & Ors v Harris Orchard [2010] SASC 354; Arthur Young (A Firm) v Tieco International (Australia) Pty Ltd (unreported, Lander J, SCSA, 19 July 1995), considered.

AISTROPE & AISTROPE v SOUTH AUSTRALIAN HOUSING TRUST
[2015] SASC 202

JUDGE BOCHNER. Before me is an application by the plaintiffs to amend their statement of claim. This is not the first time they have sought leave to do so; three previous iterations of their statement of claim have already been filed and this application is for leave to file a fourth iteration.
The facts surrounding this matter are not particularly complex. The crux of the claim, as expressed in the third statement of claim, is set out in the first two paragraphs of the reasons of his Honour Judge Withers delivered on 14 July 2015 and I adopt with respect his useful summary.
The plaintiffs wish to amend their statement of claim further, to allege breach of statutory duties, and to plead nuisance in respect of the property adjoining the plaintiffs, which is the subject of this action. In addition, the plaintiffs seek to plead certain facts and events occurring at various times. The defendant objects to the filing of the proposed fourth statement of claim on the basis that it is not adequately pleaded, that some of the amendments sought have no reasonable prospect of success, and that it offends against the Supreme Court Civil Rules 2006 (SA) and the Supreme Court Civil Supplementary Rules 2014. Finally, it is the position of the defendant that the plaintiffs’ delay in amending should preclude them from being granted leave.
In support of their application, the plaintiffs rely on the third and fifth affidavits of the first plaintiff and the affidavit of Mr Campbell filed on 21 October 2015. The defendant relies on the joint affidavit of the plaintiffs filed on 18 February 2010 (FDN 11), the second affidavit of the first plaintiff (FDN 62), and the sixth and ninth affidavits of Lesley Jane McPharlin (FDN 70 and FDN 84 respectively).
Before I embark on an examination of the amendments sought, and the defects alleged by the defendant, it is useful to set out the framework within which the amendments are sought.
The purpose of the Supreme Court Civil Rules 2006 (SA) is set out in Rule 3 as follow:
[6R3] Objects
3The objects of these Rules are—
(a)     to establish orderly procedures for the just resolution of civil disputes; and
(b)     to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
(c)     to avoid all unnecessary delay in the resolution of civil disputes; and
(d)     to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
(e)     to minimise the cost of civil litigation to the litigants and to the State.
Thus, the conduct of litigation in this Court must be done in accordance with these principles. In particular, the Rules require a balancing of efficiency, and orderly and cost effective resolution of matters, against the reaching of a result that is in the overall interests of justice.
When discussing s 37M of the Federal Court of Australia Act 1976 (Cth), which sets out the overarching purpose of civil practice and procedure in the Federal Court, Bromberg J, in Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622, said the following:
[22] What is required by s 37M is the facilitation of the “just resolution” of the dispute. The just resolution of a dispute does not require that a party be permitted to raise any arguable case at any point of the proceedings: Aon at [98]. Similarly, the just resolution of a dispute does not require a court to permit a party to call a witness at any point in the proceedings. As the judgment in Aon makes abundantly clear, the discretion to be exercised by the court in dealing with the procedural issues raised by a proceeding requires that the need for a “just resolution” be understood in light of the purposes and objectives of a provision such as s 37M of the Federal Court Act: Aon at [98].
[23] Gordon J recently considered Aon and s 37M of the Federal Court Act in Andrews v Australia and New Zealand Banking Group Ltd (2011) 281 ALR 113; [2011] FCA 388. In a passage that I respectfully adopt, Gordon J said (at [26]-[28]):
[26] Of course “case management principles should not supplant the objective of doing justice between the parties according to law”: Aon at [29], [30] and [57]. However, the High Court stated that “waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants”, together with the potential for loss of public confidence in the legal system, were factors able to be taken into account in the exercise of interlocutory discretions: Aon at [30] and at [57]. …
[27] The High Court in Aon then went further — their Honours acknowledged that it may be necessary in an appropriate case to make a decision which may produce a sense of injustice, for the sake of doing justice to the opponent or to other litigants: Aon at [94]. Such an approach is consistent with the direction in s 37M(3) of the FCA that the Rules must be interpreted and applied, and any power conferred must be exercised or carried out, in a way that best promotes the overarching purpose — the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see s 37M of the FCA and Aon at [97]-[98].
[28] Put another way, “courts have an inherent power to prevent misuse of their procedures in a way, which although not inconsistent with a literal applications [sic] of the Rules, would nevertheless be unfair to a party to the litigation ‘or would otherwise being [sic] the administration of justice into disrepute among right-thinking people’ ”: Aon at [33] and the authorities cited. [Emphasis added.]
[24] Much may depend upon the point the litigation has reached relative to a trial, as well as the nature and importance of the step in the proceeding which a party is seeking to take: Aon at [102].
Thus it is important to understand that the just resolution of a matter cannot be divorced from the manner in which that resolution is obtained; the justice of a resolution may be lost if it is achieved at the expense of undue delay, excessive cost, and a waste of public funds.
In light of the objects of the Rules set out above, I will deal first with the defendant’s position that leave to amend should be refused because of delay.
The proposed fourth statement of claim (“PFSC”) seeks to raise two new causes of action, nuisance and breach of statutory duty. The nuisance is said to emanate from the condition of the property adjacent to the plaintiffs, while the statutory duty arises from the wording of s 5 of the South Australian Housing Trust Act 1995 (SA).
The defendant argues that the allegations grounding the nuisance claim were first raised by the plaintiffs in FDN 11, which was filed on 18 February 2010. In this affidavit, at paragraph 9, the plaintiffs depose to the January 2004 visit of Mr John Hill and Mr Rodger Yates, as set out in paragraph 12 of the PFSC. This paragraph also outlines the contacts with the State Emergency Service in June 2004, as pleaded in paragraphs 13 and 14 of the PFSC. As to the particulars set out in paragraph 17 of the PFSC, the defendant notes that these allegations were the subject of correspondence between the plaintiffs and the defendant on 5 February 2012 (see Exhibit LJM 27 to FDN 84) and also were set out in detail in the first plaintiff’s second affidavit (FDN 62).
Section 5 of the South Australian Housing Trust Act has been in effect in one form or another since the commencement of the Act. While it has undergone some amendment since 1995, the thrust of the section remains the same.
Finally, it should be noted that in September 2014, his Honour Judge Roder delivered reasons in relation to an application by the plaintiffs for disclosure of documents by the defendant, which relate to the state of and repairs to the adjoining property. At this time, his Honour said the following:
[4] In argument Mrs Aistrope said that the documents were relevant because the state of the adjoining property was contributing to and had contributed to the damage to her property. I do not consider that that case is raised on the pleadings, that is the third statement of claim and the defence thereto. I cannot make an order for disclosure of documents where the documents are not either directly relevant to an issue raised on the pleadings or capable of being probative of an issue that is raised on the pleadings. For those reasons I dismiss the application FDN 64.
Judge Roder noted that the plaintiffs foreshadowed an application to further amend the statement of claim, to plead the matters outlined above, and directed that any application for leave to file a further statement of claim be filed within 42 days.
In effect, it is the position of the defendant that the matters in relation to which the amendments are sought have been well known to the plaintiffs for many years.
The position of the plaintiffs is that because the material in the amendments has been before the Court before, there can be no suggestion of surprise, and therefore no prejudice to the defendant. In addition, Mr Campbell noted that the plaintiffs were unrepresented for a period of nearly a year, from June 2014 to March 2015, and it was during this period that Judge Roder imposed the time limit for filing an application to further amend the statement of claim. As a result, and because there has been no prejudice to the defendant, the plaintiffs should be allowed to further amend. His position is that, because those facts have been known to the defendant for many years, the defendant suffers no prejudice by the inclusion of a new cause of action based on those facts.
The leading decision in relation to the effect of delay on the ability of a party to amend its pleadings is the High Court decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In this matter, the Court was addressing an application to amend pleadings made at the commencement of a four week trial, which would result in the adjournment of the trial. In criticising the approach taken by the judge at first instance, and by the Court on appeal, French CJ said the following:
[4] Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted.
[5] In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. …
Further in identifying the matters to be taken into account, and the competing principles of case management and the need to do justice between the parties, he said:
[30] It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
A joint judgment was prepared by Gummow, Hayne, Crennan, Kiefel and Bell JJ, who said the following:
[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. 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.
…
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114] Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU’s claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided. [Citations omitted.]
Thus, the Court makes it clear that, when examining the interests of justice when determining whether or not to allow an amendment to pleadings, a multiplicity of factors needs to be considered. These include the need to examine whether the pleadings adequately state the issues in dispute between the parties, the extent of any delay and costs incurred as a result of the amendments, the stage of the proceedings at which the application to amend is made, and the effect that allowing the amendment will have on the parties to the litigation in question, and also parties to other litigation currently before the Court.
In Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59, the Full Court of the Supreme Court of South Australia (per Bleby and White JJ agreeing) distilled from Aon the following principles:
[46] It follows from these two cases that there are a number of relevant matters that will need to be taken in to account in determining whether a late application for permission to amend should be granted. Those matters include:
(1)Whether there has been undue delay in making the application;
(2)The extent to which there will be wasted public resources in granting the amendment;
(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4)Whether a trial date would need to be vacated or a trial adjourned;
(5)Whether there is any satisfactory reason for the delay in applying;
(6)Whether the point to be raised by the amendment would be raised in any event at the trial;
(7)The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9)Any other prejudice likely to be suffered by the other party;
(10)The additional costs likely to be incurred. [Citations omitted.]
I will consider each of the elements set out above in turn.
Has there been undue delay in making the application?
It is, at this stage, worth outlining a brief chronology of the matter.
Proceedings were first issued on 24 November 2009, at which time the plaintiffs were representing themselves. The plaintiffs’ statement of claim was struck out on the application of the defendant on 31 May 2010, and on 17 August 2010 Johnston Withers commenced acting on their behalf. On 23 September 2010, the second statement of claim was filed.

The defendant filed its defence on 22 November 2010, and discovery was made by both parties on 30 January 2012. In the intervening period, the parties obtained experts’ reports and took part in mediation.
On 19 March 2012, Johnston Withers ceased to act for the plaintiffs, and for a period of about three months they were again self-represented. Moore Law commenced acting for the plaintiffs on 7 June 2012.
On 11 January 2013, the plaintiffs sought leave to file a further statement of claim, on the basis of advice received from senior counsel. On 25 July 2013, Moore Law ceased to act for the plaintiffs.
On 4 September 2013, Gilchrist Connell filed a notice of acting on behalf of the plaintiffs, and on 31 October 2013, orders were made for the filing of the third statement of claim. On 24 December 2013, a further defence was filed by the defendant and further lists of documents were filed by both parties in January 2014.
In early June 2014, Gilchrist Connell sought leave to cease to act for the plaintiffs, and on 23 June 2014, the plaintiffs filed a notice indicating that they were again acting for themselves. In September 2014, the plaintiffs foreshadowed filing a fourth statement of claim. On 19 March 2015, Campbell Law filed a notice of acting on behalf of the plaintiffs. The application for leave to file the fourth statement of claim was filed on 21 October 2015, having previously been foreshadowed on 13 August 2015, 26 February 2015, and 24 September 2014 (at which time, as previously noted, Judge Roder ordered that any application to amend the statement of claim be filed within 42 days).
It is also important to note the contents of the affidavit of Todd Grant, of Moore Law filed on 7 March 2013 (FDN 32). In this affidavit, Mr Grant deposes to consulting Neville Rochow SC in February 2012, seeking advice on the draft third statement of claim. The result of this consultation was the need to amend further the draft third statement of claim, as a result of which the argument in relation to leave to file this document was adjourned for eight weeks. At the time that Mr Grant sought further time to consult with Mr Rochow, he noted in his affidavit that he has also instructed Mr Floreani of counsel to provide an opinion and advice on evidence and to settle the statement of claim.
The argument in relation to the filing of the third statement of claim was heard on 12 September 2013, and leave was granted on 31 October 2013. By this time, Moore Law and Mr Grant had ceased to act for the plaintiffs and Gilchrist Connell were acting on their behalf.
The plaintiffs’ draft third statement of claim was attached to the fifth affidavit of Mr Grant, filed on 11 July 2013 (FDN 35). As at July 2013, the plaintiffs had (at least) the following information to hand:
·The report of Laurence Field, clinical psychologist;
·Report of Joe Said, structural engineer;
·Addendum reports of Mr Said;
·Report of Stewart Forster, electrical engineer;
·The advice of Mr Rochow SC;
·The advice of Mr Floreani of counsel.
In addition, the plaintiffs had filed FDN 11, and had written the letter exhibited as Exhibit LJM 27 to FDN 84.
I cannot but find that there has been undue delay in making the current application to amend. Prior to making this application, the plaintiffs were represented by three firms of competent solicitors, and in addition, were assisted by counsel, both senior and junior prior to the filing of the third statement of claim. The issues sought to be included are not matters that have only recently come to light and there is no explanation as to why they were not included in the third statement of claim. Indeed, there was significant delay in the prosecution of the application for leave to file a third statement of claim, from January 2013 until the order was finally made to amend in October 2013. This delay was occasioned by the plaintiffs’ desire to seek counsel’s guidance in this process. It seems at best unusual that a further application to amend would be brought two years later, on the basis of no fresh facts and no explanation of the reason for the delay or the failure to include the amendments now sought in the third statement of claim. Any examination of the facts in this matter must lead to the conclusion that there has been undue delay in bringing this application.
The extent to which there will be wasted public resources in granting the amendment
Leave was granted to file the third statement of claim on 31 October 2013. Since that time, and up until Mr Campbell commenced acting for the plaintiffs, the matter was before a Master of this Court on nine occasions, five of those attendances dealing with issues of discovery and three relating to the plaintiffs’ attendance at medical appointments arranged by the defendant. On three of those occasions, the plaintiffs were represented by counsel, although no solicitors were instructed on their behalf. In addition, the defendant has filed a further defence, made further discovery and obtained experts’ reports, dealing with issues relating to the state of the property and the claim of personal injury made by the plaintiffs.
The plaintiffs acknowledge that if the amendments are allowed, further experts’ reports may be required. This will result in further delay and more attendances at Court. It is clear that public resources will be wasted, in that further defences will need to be filed, further discovery made and more attendances at Court required to timetable these matters.
Whether there will be inefficiency occasioned by the need to revisit interlocutory processes
There is no doubt that inefficiency will be occasioned by the amendments sought. This matter shows a sad lack of adherence to orders made in the past and there is no reason to suggest that this will not continue. The Court, and the defendant, have already dealt with the need to amend, the consequential filing of defences, the resulting need for expert reports, and the ongoing timetabling of this matter.
Whether a trial date would need to be vacated or a trial adjourned
I note that there is no current trial date for this matter. I also note that a mediation was held at some time in 2011, and in December 2011, it was noted that orders would be made to advance the matter to be ready for trial. There has been no real advancement in this matter since that time.
Whether there is any satisfactory reason for the delay in applying
The main reason given for the delay was that the plaintiffs were unrepresented for a time, making it difficult for them to prepare a fourth statement of claim in the time directed by Judge Roder. Mr Campbell provided no explanation for why the matters now sought to be raised were not included in the third statement of claim, which was prepared on the basis of counsel’s advice, and when the matters raised in the proposed fourth statement of claim were well known to the plaintiffs. Given the involvement of counsel, both senior and junior, in this matter since February 2012, the mere fact of a period of being unrepresented does not amount to a satisfactory reason for the delay. A period of self-representation in itself does not amount to a satisfactory reason for the delay in all the circumstances.
Whether the point to be raised by the amendment would be raised in any event at the trial
It is unlikely that the nuisance allegations would be raised at the trial. While the condition of the adjoining property has been raised in a peripheral manner throughout the matter, the allegations of nuisance are new. In particular, it should be noted that Judge Roder specifically refused to order disclosure in relation to the condition of the adjoining property, on the basis that it was not relevant on the pleadings.
The likelihood of strain and uncertainty being imposed on the litigants
Further delay will no doubt impose further strain and uncertainty on the parties. Mr Field, in his report on the plaintiffs dated 13 December 2012 states, “… recovery from their psychological injuries have been undermined by the ongoing dispute process that is presently before the Court”. One can assume that further delay and associated cost will impair their recovery process further. The defendant, too, faces ongoing uncertainty and increased costs because of the delays in this matter.
Whether any further delay would undermine confidence in the administration of civil justice
The undue delays in this matter must undermine confidence in the administration of civil justice. If leave were granted to further amend the statement of claim, it would result in this matter being no further progressed than it was when it was first instituted, just over six years ago. A new defence would need to be filed, further disclosure would need to be made, and Mr Campbell has intimated that further expert reports may need to be obtained. This would all be on the basis of facts that were known to the plaintiffs at the time of the filing of the third statement of claim. It would be no surprise if there was a loss in public confidence in the legal system if such delay was countenanced in the absence of a compelling reason. The public has a legitimate expectation that proceedings will be litigated in an effective, efficient way, minimising as far as possible delay, expense and duplication of effort. Indeed, Rule 3 raises these expectations, and it is the role of the Court in conjunction with legal practitioners, to ensure that litigation is conducted in adherence with these principles. This is not to say that the interests of justice should not prevail. It raises a more complex question of where the interests of justice lie in matters such as this. As said in the joint judgment in Aon (at [94]):
… 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.
Any other prejudice likely to be suffered by the other party
This matter relates to events that occurred in 1996 and 2004. Ongoing delay will no doubt have a prejudicial effect on the ability of all parties and witnesses to recall events and provide their evidence in a satisfactory manner.
The additional costs likely to be incurred
As set out above, the interlocutory steps in the matter will need to be revisited by both parties. This will result in significant additional costs being incurred.
In light of the above, I conclude that leave to file a fourth statement of claim should not be granted. The plaintiffs have had sufficient opportunity to plead their case and indeed, at the time of filing the third statement of claim, were assisted by both solicitors and senior counsel. The matters now sought to be pleaded were within the knowledge of the plaintiffs at this time, and no reason has been given for their failure to include them in the third statement of claim.
While this disposes of the plaintiffs’ application for leave to file a fourth statement of claim, for completeness I will deal with the alleged defects in the draft pleading as raised by the defendant.
Pleadings in any action perform two essential functions: to define the issues in dispute (6SCR 90(1)), and to provide sufficient facts and matters so as to allow a party to know what case they are to meet (6SCR 98). Rule 99 sets out the requirements for a statement of claim as follows:
[R 99] Requirements for statement of claim
(1)     A statement of claim—
(a)     must state the name of each cause of action; and
(b)     must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); and
(c)     must contain a short statement of the material facts and matters on which each cause of action is based; and
(d)     must state any remedy for which the plaintiff asks; and
(e)     if the plaintiff seeks an ancillary remedy (such as an extension of a period of limitation or a temporary injunction) — must state the nature of the remedy and the basis on which it is sought.
(2)     If the plaintiff relies on separate causes of action, the statement of material facts and matters must differentiate between—
(a)     facts and matters that are common to both or all causes of action; and
(b)     facts and matters that are relevant only to a particular cause of action.
(3)    If a plaintiff claims damages for personal injury, the statement of claim must state—
(a)     the general nature of the injury and any resulting disability; and
(b)     the general nature of treatment received; and
(c)     the general effect of the injury and any resulting disability on the plaintiff’s—
(i)capacity to work; and
(ii)enjoyment of life; and
(d)     the kinds of economic and non-economic loss suffered by the plaintiff,
(but is not to contain details of treatment and loss that are required for the statement of loss).
It is the contention of the defendant that the proposed amendments do not comply with the Rules, allege causes of action which have no arguable basis, and plead facts and events which do not form part of any cause of action.
It is accepted that a Court should not allow an amendment where, if pleaded in the first instance, the pleading would have been struck out or where further particulars would be ordered for it to comply with the rules of pleadings. As White J said in Pope & Ors v Harris Orchard [2010] SASC 354:
An amendment to pleadings should not be permitted unless it complies with the pleading rules and, in particular, if it would be vulnerable to being struck out on the grounds of non-compliance or would inevitably give rise to an application for further and better particularisation.
In Arthur Young (A Firm) v Tieco International (Australia) Pty Ltd (unreported, Supreme Court of South Australia, 19 July 1995) Lander J discussed the appropriate content of pleadings as follows:
Although the purpose of pleadings is clear, the pleadings themselves must not become a burden. Whilst recognizing the due importance of pleadings and their role in the litigation process, they are not to be understood to be any more than statements of the case of the party; statements made with sufficient particularity to identify that case. The rules of procedure do not require a party to include particulars of any more than the case to be made. The rules require the pleader to be as brief as the nature of the case permits and further require that the material facts ought to be pleaded but specifically preclude the pleading of the evidence upon which those facts are to be proved. It is therefore necessary, as only the material facts are to be pleaded, that some judgment has to be made in respect of any particular pleading as to whether or not the facts which are said to be omitted are material facts for the purpose of the party against whom the pleading is directed understanding the case, which is identified against that party. It follows that having regard to the injunction that the pleadings be as brief as possible and that only material facts be pleaded, the law recognizes that some facts will not be pleaded because those facts do not identify the case that is raised against the party against whom the allegation is made, or further do not identify any issues or sub-issues to which that party ought to apply that party’s mind.
The rules do require that the pleading will contain particulars of the claim, and particulars under the Rules must be understood to be part of the pleadings. However, the rules make it plain that what is required is that there be sufficient particulars of the claim. It follows therefore, as well, that the rules contemplate that not all particulars which may be identified by a party need be pleaded.
In essence therefore it seems to me that a proper pleading will contain the material but not all facts and will contain sufficient particulars.
Whether the material facts and whether sufficient particulars have been pleaded must depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case. None of those matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation.
When the Court considers a pleading it will not consider the pleading with the same degree of scrutiny which the courts are required to give to an Act of Parliament. With the complexities of modern litigation, a pleader can usually point to some deficiency in the opponent's pleadings. One can usually, if one approaches the matter with a critical eye, identify some failing in a pleading. But that is not the approach that in this age ought to be adopted. A court would not sit down in the manner of a nineteenth century pleader seeking to find an error capable of sending a party away to re-plead his claim or defence. Such a technical approach is inconsistent with modern litigation and inconsistent with the court's function which is to try to arrive at a just result. A successful result, if arrived at, after too great an expense may not be considered by even the successful party to be a just result. A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise.
Thus the role of pleadings is to provide a framework for trial, and to ensure that all parties receive fair notice of the case they are to meet. They are not to become a burden in themselves that prevent the just resolution of cases through overly technical application of the rules of pleadings. Nonetheless, they must still fulfil their primary function. A statement of claim must state the material facts relied on (Rule 98 (2)(b)), it must plead such facts and matters as to give fair notice of the party’s case at trial (Rule 98 (2)(d)), and it must contain the basis of each cause of action with a short statement of the material facts and matters on which each cause of action is based (Rule 99 (1)(b) and (c)). It is the defendant’s contention that the proposed fourth statement of claim does not do these things.
Paragraphs 8, 9 and 10 of the proposed fourth statement of claim
In relation to these paragraphs, the defendant’s position is as follows:
·These paragraphs allege a statutory duty in circumstances where no such duty can be inferred.
·Section 5 of the South Australian Housing Trust Act 1995 (SA), as relied on by the plaintiffs, does not create a private right of action but simply sets out the functions of the South Australian Housing Trust. The Act does not create an obligation that those functions be performed.
·The duty alleged by the plaintiffs came into effect after the relevant cause of action arose.
·The pleading fails to provide sufficient notice of the steps the defendant should have taken to comply with the duty thus prejudicing the defendant in its preparation of its defence and making it liable to surprise at trial.
While I am of the view that there is merit in the defendant’s position that Section 5 of the South Australian Housing Trust Act does not create a private right of action, this is not a matter that I feel obliged to make a decision on. This is because I accept the submission made by the defendant that the pleadings in their current form fail to provide sufficient notice to the defendant of the case it would meet at trial. While listing in paragraph 11 the various alleged defects to the property, the plaintiffs do not particularise how these amount to a breach of the duties set out in paragraphs 8, 9, and 10, nor do they plead the manner in which the duties should have been performed. Nor do the plaintiffs articulate how duties only arising after 1 January 1996 can be breached by actions that occurred in 1994 and 1995. This places the defendant at an immediate significant disadvantage and liable to be prejudiced in the filing of its amended defence and at trial.
Paragraphs 12, 13, 14, and 17-24

It is the position of the defendant that these paragraphs plead evidence that is not relevant to a cause of action. While paragraph 22, pleading nuisance, relies on these paragraphs, at no time do the plaintiffs plead how the actions outlined amount nuisance. The plaintiffs have failed to plead the key elements of nuisance in a way that makes sense of the facts pleaded, and leaves the defendant guessing as to the nature of the unreasonable interference alleged. Essentially, the plaintiffs have simply listed the work done on the property which they say was done improperly or inappropriately and seek a conclusion that those actions amount to nuisance.
I am of the view that the defendant is prejudiced by the form of the pleading. The mere recitation of facts or events is not sufficient to establish the cause of action of nuisance, and it is not for the defendant to have to guess at which of the facts and matters pleaded go to the cause of action, and in what manner. While it may be the case that the actions described caused damage to the plaintiffs’ property or to the adjoining property, there is nothing to indicate how those actions or that damage amount to a nuisance.
Finally, the plaintiffs seek to amend the remedies sought, by including in paragraphs 3-8 in Part 2 of the PFSC, a claim for:
-damages for breach of statutory duty;
-damages for nuisance;
-exemplary damages;
-a declaration that they are entitled to equitable compensation;
-equitable compensation; and
-equitable damages.
It is clear to me that, in the event these amendments were allowed, they would be liable to be struck out. The balance of the pleading does not, in its current form, establish a cause of action in either breach of statutory duty or nuisance. No pleading establishes a claim for exemplary damages. The right to a claim for equitable damages or equitable compensation has not been pleaded in any way. No basis for these remedies has been pleaded in the PFSC as it currently stands.
In my view, leave should not be granted to file the proposed fourth statement of claim. This is primarily on the basis of the undue delay in seeking a further amendment. However, even if I were minded to grant leave despite the delay, a short examination of the proposed pleading indicates that its filing should not be allowed in any event. I dismiss the plaintiffs’ application.