AON Risk Services Australia Ltd v Australian National University

The parties to this proceeding were AON Risk Services Australia Ltd (the applicant) and Australian National University (the respondent). The dispute concerned an application for leave to appeal an interlocutory decision of a trial judge who had granted the respondent leave to amend its statement of claim. The appeal was heard by Higgins CJ, Penfold and Lander JJ.

The legal issues before the court were whether the trial judge erred in granting leave to amend the statement of claim, particularly where the claim was enlarged by the amendment. The court was required to consider the principles appropriate to granting leave under rule 21 of the Court Procedure Rules 2006 (ACT), including whether the rule placed greater emphasis on case management considerations, and whether the paramount consideration remained justice between the parties. Further issues included whether the delay in seeking the amendment was unreasonable, what inferences could be drawn from such delay, and whether the amendment would cause substantial injustice not capable of remedy by costs. The court also considered whether the trial judge erred in not striking out part of the statement of claim for abuse of process, and whether the trial judge erred in the award of costs, specifically regarding indemnity costs for the amendment.

The court reasoned that while case management is a relevant consideration, the paramount consideration in granting leave to amend a statement of claim is justice between the parties. The court found that the trial judge had erred in the award of costs, and that the respondent's delay in seeking the amendment was unreasonable and lacked a satisfactory explanation. The court determined that the applicant had suffered prejudice due to the amendment.

The court ordered that leave to appeal be granted. The appeal was allowed to the extent that the order for costs made by the trial judge was replaced with an order that the respondent pay the applicant's costs of and thrown away by the amendment of the Statement of Claim on an indemnity basis. The orders made by the trial judge otherwise were confirmed, and the respondent was ordered to pay the applicant's costs of and incidental to the appeal.