ASIC v Lindberg

[2009] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3816 of 2009
No 3855 of 2009

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

v

ANDREW ALEXANDER LINDBERG

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JUDGES	MAXWELL P, DODDS-STREETON and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 October 2009
DATE OF JUDGMENT	9 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 235
JUDGMENT APPEALED FROM	Re AWB Limited (No 7) [2009] VSC 413 (Robson J) Re AWB Limited (No 5) [2009] VSC 258 (Robson J)

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APPLICATION ON SUMMONS

PRACTICE and PROCEDURE – Pleadings – Trial judge’s refusal of leave to amend statement of claim – Statement of claim previously amended – Addition of substantial new allegations and particulars – Trial date would be lost if leave to amend granted – Prospect of further proceedings if leave refused – Trial judge balanced competing interests – Decision not attended by sufficient doubt – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M J Colbran QC Ms M Wall	Australian Securities and Investments Commission
For the Respondent	Mr D G Collins SC Mr K J A Lyons	Galbally & O’Bryan

MAXWELL P
DODDS-STREETON JA
MANDIE JA:

1. The applicant, the Australian Securities and Investments Commission (‘ASIC’), by summonses dated 31 July 2009 and 21 September 2009, seeks, inter alia, leave to appeal from the decisions of Justice Robson given on 17 July 2009 and 18 September 2009, in which his Honour determined to refuse ASIC leave to amend its Further Amended Statement of Claim (as was current at the relevant time) by, broadly, adding allegations in relation to the respondent’s post Iraq War role in certain matters and adding new particulars.

1. We do not think that his Honour’s decisions are attended by sufficient doubt to justify a grant of leave to appeal.  Nor do we think that ASIC will suffer substantial injustice if leave to appeal is refused.

1. The applicant’s pleadings in this case are complex and voluminous.  They deal with a large number of complicated transactions over a lengthy time frame and there have been numerous successive versions of the statement of claim. 

1. The proposed amendments relating principally to Project Rose, the Tigris Debt and the IIC (‘the additional allegations’) are admittedly new matters, and although related to the issues currently in dispute, are in a different time frame, in substance, to the matters covered in the existing pleading.  As senior counsel for the applicant properly conceded, the allegations encompass large and significant matters.  It is clear that (were the amendments to be permitted) the respondent at least (as his solicitor has deposed) would require time to meet them.  In consequence, the trial date (now 19 October 2009) would be vacated for the second time, occasioning the resultant prejudice to, and strain upon the respondent, to which he had deposed.

1. In our opinion, in refusing leave to amend his Honour did not err in principle. Nor did his discretion miscarry.  We accept, in that connection, that the additional allegations might be, in themselves, properly the subject of a proceeding, and if so, in an ideal world, might have been included in the present proceeding.

1. We also accept the possibility, without expressing a view one way or the other, that the applicant may not be precluded by Anshun[1] principles from bringing a further proceeding.

   [1]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45.

1. In our view, however, the trial judge did not fail adequately to address the goal of avoidance of the multiplicity of proceedings.  His Honour was well aware of its importance and satisfactorily addressed it.  The applicant submits that his Honour should not have assumed that there was no prospect of additional proceedings, should the application to amend be refused;  but in the context of the relevant application (in which the avoidance of a multiplicity of proceedings is a salient objective) his Honour was entitled to observe, as he did, that there was no evidence before him to suggest that ASIC would seek to institute separate proceedings to resolve the issues raised by the additional allegations.

1. Ultimately, even in a case where there is a prospect of further proceedings, that circumstance, while important, might nevertheless be outweighed by other relevant factors, such as prejudice, in the form of stress, and the continuance of a party in jeopardy and the like, occasioned by the vacation of a trial date.  

1. In the present case, the trial date (previously fixed for July 2009) had already been vacated once before and his Honour had evidence of the strain on, and prejudice to the respondent likely to be occasioned by a second vacation of the trial date.  His Honour was entitled to weigh all relevant matters on the basis of the material before him and to exercise the discretion as he did.

1. In relation to the proposed additional particulars of harm flowing from the alleged contraventions, the applicant had, at an earlier stage, the opportunity to raise the relevant matters, which are potentially voluminous and burdensome, and to clarify the causal link between them and the harm alleged.  In any event, it was within his Honour’s discretion to refuse leave to rely on them at this late stage.  In all the circumstances, in our view his Honour’s decisions are not attended with sufficient doubt to warrant a grant of leave.  

1. In our opinion, the applications should be refused.

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