Aon Risk Services Australia Limited v Australian National University

[2009] HCATrans 26

[2009] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C9 of 2008

B e t w e e n -

AON RISK SERVICES AUSTRALIA LIMITED

Applicant

and

AUSTRALIAN NATIONAL UNIVERSITY

Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 11.50 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   If it please the Court, I appear with MR N.J. OWENS for the applicant.  (instructed by Corrs Chambers Westgarth)

MR P.R. GARLING, SC:   If the Court pleases, I appear with my learned friend, MS J. OAKLEY, for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   Yes, do not sit down, Mr Garling, we would like to hear from you first.

MR GARLING:   Your Honours, the argument below on the question of application of authority was put by my learned friends that the rule 21 and the other rules of the ACT Supreme Court affected the authority of this Court in JL Holdings by introducing and making paramount case management considerations.  The court below unanimously rejected that, we submit, correctly.  It is wrong, we submit too, for the applicants to put that JL Holdings carries with it the notion that there is an entitlement to amend in the absence of what one might call in a shorthand sense specific identified prejudice.

GUMMOW J:   You may be right about that, but day to day around the country I am not sure that is how the case is read.  If it is being misread, perhaps something has to be done about it.

MR GARLING:   Well, your Honours, all we can say is the notion of amendment or perhaps adjournment because the same principles would apply, is really only capable of application by specific facts and considerations in individual cases against the general proposition.  The general proposition, we submit, cannot be any clearer than it is in JL Holdings, namely, the interests of justice are paramount, there are other matters which the courts ought weigh in the scale, namely, what is the relevant case management consideration, what it is not?

What his Honour Justice Lander said at paragraphs 193 and 194 in dealing with JL Holdings, we submit, clearly and accurately set out what ought be extracted from that decision.  Your Honours, it is, with respect, not a problem, we submit with the greatest respect, that this Court should embark upon if individual courts in applying various factual constraints and factual issues and particular issues in the cases, weigh up balances and take one or other of those considerations and apply them with different weights in different areas.

The other matter which we would put, your Honours, one has to be very cautious in this area not to overlook this fact.  When trial courts and courts of appeal when dealing with trial court’s decisions in this area come

to deal with these matters, they often and quite regularly use a form of shorthand.  In other words, it is not wrong to use a form of shorthand in the sense of saying, we know what is required, in this case the particular issues are, therefore we will determine it in the balancing exercise by reference to this consideration or that consideration.

We submit that the authorities to which my learned friends put do no more than that.  They showed different applications in a variety of ways, often in shorthand terms, of the principle.  So that, in our respectful submission, there is no reason for the Court to either revisit or, alternatively, restate what the Court has clearly said in JL Holdings.  That is what we put on that point, your Honours.

On the point of inconsistency, which we submit (a) does not raise a general principle and is fundamentally flawed anyway, we rely on what we say in our outline.  If the Court pleases.

GUMMOW J:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, at page 93 of the application book when Justice Lander reviewed JL Holdings his Honour correctly noted, at the foot of page 93, one critical fact in JL Holdings was that the applicant had provided the Court with an explanation for the delay, namely, recent discovery which was accepted.

The second critical matter in JL Holdings, which we see on page 94 in paragraph 188, is that your Honour Justice Kiefel took a view of fact as the trial judge that to allow the amendment would jeopardise the hearing.  The majority in the High Court, as we see at paragraph 190, disagreed with your Honour as a matter of fact and therefore said it was a case where the amendments could all be accommodated within the hearing.

Within those two critical factual constraints the general principles of JL Holdings, which are stated at paragraph 194, at a level of generality are unexceptionable.  The difficulty which has emerged across this country is that courts are treating JL Holdings as if, unless you can prove specific prejudice, you cannot oppose an amendment and it is irrelevant to consider a case which differed from that in JL Holdings. 

The two critical differences, as your Honours know, and they are stark.  The first critical difference is set out by Justice Lander at page 103 in paragraphs 223 to 224, that this applicant for this indulgence chose deliberately not to tell the court why it had acted when it did and from that behaviour, quite extraordinary behaviour, to not proffer an explanation Justice Lander properly drew an inference, at the foot of the page and over the page, that a deliberate tactical decision had been made not to bring the

claim earlier.  Justice Penfold agreed that that was the proper inference from this behaviour, which your Honours see at the foot of page 59.  That is the first critical fact.

The second is that the amendment was going to require a whole preparation for the case to start again.  That is page 105.  The issue of principle is, does JL Holdings mean that a trial judge is bound, notwithstanding that behaviour and those consequences, to allow the amendment?  We submit it does not and, if it does, it certainly requires reconsideration by the Court.  We have given your Honours at page 127 in the footnotes, which are not challenged, decisions of courts all across the country which are taking what we submit to be the wrong view of JL Holdings.  None of those have been challenged. 

If I could put in a nutshell, if JL Holdings stands for what has occurred in this case, it becomes a charter not just for gross carelessness in the preparation of trials, but a charter for treating the whole of the pre‑trial period as a game, of treating the court as something that the parties do not need to be frank with and encourages delay and lack of finality in resolution of cases.

KIEFEL J:   To what extent will your case rely upon particular procedural provisions in the ACT Supreme Court Rules?

MR GLEESON:   Not at all.  What was done below was to seek to do two things; we are bound by JL Holdings, given these facts we have proved about their behaviour, it should be refused.  A broader argument was run that the form of the ACT rule had amended – that is an impolite term – what the Court had laid down in JL Holdings.  We wish to put it at the more fundamental level, that JL Holdings does not require the conclusion that has been reached by the majority and, if it does, it needs to be reconsidered and restated and therefore it would be of value to trial courts across the entire country.  We have put our submissions in writing on the second point, your Honours.

GUMMOW J:   Thank you.  Yes, Mr Garling.

MR GARLING:   Your Honours, what the applicant really seeks is for this Court in a new judgment to notionally take JL Holdings, mark it or select it all, as one might do on a computer, and bold it and underline it.  That is what the applicant is really seeking this Court to do.  Now, your Honours, with greatest respect, that is a wholly unnecessary task in this case for three reasons.

One, the Court below clearly stated it now appears embraced as correct by my learned friends, the applicants, what is to be drawn from JL Holdings.  Secondly, the fact is, as I put earlier, the exercise mandated on an application to amend or seek an adjournment is classically individualistic and discretionary.  And thirdly, the applicants fall into the trap in this case of submitting that there is one consideration, namely, on their case a failure to provide an explanation, which triumphs all.

They are falling precisely into the very error in seeking to persuade the Court the decision below was wrong as they criticise the court below for doing.  There was no lack of explanation, your Honours.  What Justice Higgins did when dealing with the trial judge at appeal book page 49, paragraph 14, was that there was an explanation offered, the trial judge accepted it as truthful but said that it was not entirely satisfactory.  He considered, however, there were real trial issues of considerable weight et cetera.

Now, for the applicant to then take the proposition, with respect, which depends upon paragraph 225 in Justice Lander’s judgment where his Honour goes further than saying that the trial judge had no explanation before him, what he says is that he would infer from the nature of the explanation that was given at the bottom of page 103 of the application book “that any explanation it gave was likely to lead to the application being unsuccessful”.  An inference, we would submit, ultimately, if this matter was considered, just not available.

Your Honours, my learned friend has overlooked the specific facts of this case.  May I just put them in two minutes to your Honours?  A case against three insurance companies or syndicates or bodies and the broker in the alternative; the university was either insured in full or it was not.  If it was insured, we recovered from the insurers, if it was not, we recovered from the broker.  Settlements were effected on the first two days of the trial of the three insurers.  Most of the case, or at least a large part of it, thereby disappeared in terms of contested issues for trial. 

Immediately prior to that, through various case management procedures, the parties had been brought to an agreement – at least the three insurers and the plaintiff, my client below – been brought to agreement on very complex questions of quantum about all of the properties that were destroyed in this bushfire.  So that, in fact, it is unsurprising that once a settlement occurred, firstly, we would plead that settlement, which we did, because we had to, of course, give credit to the amounts recovered, leaving aside the inconsistency point. 

Second, that unless and until that settlement was accepted by the applicants here as being either reasonable or not, then the question of what evidence had to be adduced could not be determined.  That necessitated an adjournment of this case.  Thirdly, on all issues never contested below it

was said that the additional pleadings, the additional case sought to be made, raised triable issues.  Fourthly, no claim of prejudice that could not be resolved by an issue for costs.  This was a classic case for amendment so that even if the Court is being asked to re‑emphasise JL Holdings, there is, we would submit, no reasonable prospect of success and the Court ought refuse leave.

GUMMOW J:   There will be a grant of leave in this matter, which should comfortably be a one day case I would think.  Mr Gleeson, you will need to consider whether you need formally to apply to reopen the earlier case.

MR GLEESON:   Yes, your Honour.  Thank you, your Honour.

GUMMOW J:   .....or whether.....want to.....

MR GLEESON:   We will consider that, your Honours, thank you.

MR GARLING:   Your Honour, may I just, for more abundant caution, understand my friend to include the inconsistency point?

GUMMOW J:   Yes.

MR GARLING:   Thank you, your Honours.

AT 12.05 PM THE MATTER WAS CONCLUDED