Batt v Burnie City Council

[2016] TASSC 1

[2016] TASSC 1

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Batt v Burnie City Council [2016] TASSC 1

PARTIES:  BATT, Christa Ann
  v
  BURNIE CITY COUNCIL

FILE NO:  95/2006
DELIVERED ON:  11 January 2016
DELIVERED AT:  Hobart
HEARING DATE:  7 May 2015
JUDGMENT OF:  Tennent J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Statement of claim – Amendment introducing new cause of action after limitation period expired – Relevant considerations by reference to r 427(2A).

Mirkazemi v Manns [2009] TASSC 91, followed.
Supreme Court Rules 2000 (Tas), r 427(2A).
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Appellant:                  B McTaggart SC
             Respondent:              K Pitt QC
Solicitors:
             Appellant:                  SGW Law
             Respondent:              Tremayne Fay & Rheinberger

Judgment Number:  [2016] TASSC 1
Number of paragraphs:  32

Serial No 1/2016

File No 95/2006

CHRISTA ANN BATT v BURNIE CITY COUNCIL

REASONS FOR JUDGMENT  TENNENT J

11 January 2016

1. The appellant, Christa Batt, purchased property at Scarfe Street, Burnie in or about 1999. She accessed that property via an adjoining block ("the Property").  In 2006, she purchased the Property from the Van Dieman's Land Company. When the Burnie City Council ("the Council") became aware of the proposed purchase, it asserted that the Property was a highway within the meaning of the Local Government (Highways) Act 1982 ("the Act"). It advised that it proposed to remove fencing the appellant had erected in relation to the Property.

2. On 21 December 2006, the appellant initiated proceedings against the Council by which she sought a declaration that the Property, then described in Certificate of Title 146436 Folio 1 and registered in her name, was private property and not a local highway within the meaning of the Act. She also sought an injunction restraining the Council from entering the Property and removing, in effect, fencing she had erected.

3. A number of interlocutory steps were taken in the proceedings through 2007 and up to August 2008. Then, on 18 June 2009, a notice effecting a change in the appellant's practitioner was filed. After that, no step was taken in the proceedings, save a compulsory conference at some stage, until a letter dated 7 February 2012 was received by the Court from the appellant's solicitor requesting an appointment before a judge for a timetable to have the matter readied for trial. Eventually on 8 August 2013, an order was made that the matter be listed for trial. The trial was subsequently listed to commence before the Chief Justice on 7 April 2014.

4. On 2 April 2014, the appellant applied for leave to amend her statement of claim and for the adjournment of the trial. On 3 April 2014, the Chief Justice vacated the trial date, adjourned the application for leave to amend sine die and ordered there be a directions hearing. The application to amend ultimately came on for hearing on 27 October 2014 before the Associate Judge. His Honour determined the application on the day and dismissed it.

5. The appellant now appeals that decision. The grounds of appeal are as follows:

   "1The Associate Judge erred in failing to be satisfied the Respondent would not, as a result of granting leave to amend the Statement of Claim, be prejudiced in the conduct of its defence within Rule 427(2a) of the Supreme Court Rules 2000.

   2That the Associate Judge erred in failing to be satisfied that the chances of a fair Trial have not been lost."

The decision of the Associate Judge

1. His Honour determined the application to amend by reference to the Supreme Court Rules 2000 ("the Rules"), r 427(2A). That approach is not the subject of challenge. Rule 427 deals generally with applications to amend pleadings. It relevantly provides:

"427     Amendment of endorsement or pleadings

(1) At any time before judgment, the Court or a judge may grant leave to a party to amend any process or pleading in such a manner and on such terms as may be just.

(2) Subject to subrule (3), the pleadings may be amended as necessary for the purpose of determining the real questions in controversy between the parties.

(2A) The Court or judge, despite the expiry of any relevant limitation period after the day on which proceedings commenced, may grant leave under subrule (1) if it is satisfied that any other party to the proceedings would not, as a result of granting leave, be prejudiced in the conduct of his or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise."

1. His Honour reviewed the evidence placed before him, and, at [19] of his reasons, said:

   "The party asking for leave carries the onus. I am not persuaded that by reason of the delay the chances of a fair trial on the proposed new issues have not become unlikely. The delay is lengthy. The quality of justice deteriorates with delay. The chance of calling witnesses with reliable memories of un-noted conversations are diminished with the passage of time. It follows that because I am not satisfied that the chances of a fair trial have not been lost there is no discretion to permit the amendment."

Discussion

1. The statement of claim the appellant now seeks to rely upon is substantially different from that originally filed. There is no dispute that, by it, the appellant seeks to raise new causes of action. For the purpose of the argument, there is also no dispute that any limitation period in relation to the new causes of action, sought to be introduced, expired in April 2012. The appellant's application to amend her statement of claim to introduce those new causes of action was not made until 2 April 2014, that is approximately two years after the relevant limitation period expired.

2. The appellant asserts in the proposed amended statement of claim that, in the event that it is found the Property is a highway, representations were made to her both orally and in writing by officers of the Council between 1999 and 2006 to the effect that the Property was not a highway and that the Council had no obligations in respect of it. The appellant asserts that she relied on those representations, and that they were made negligently. She also asserts the representations were misleading and deceptive and that she has suffered loss.

3. Counsel for the appellant submitted that, in respect of the amendments sought, r 427(2A) mandated that the discretion to permit the amendments was not enlivened unless the Court or a judge was satisfied that the Council would not, as a result of the granting of leave, be prejudiced in the conduct of its defence in a way that could not be fairly met by an adjournment, award of costs or otherwise. The rule was remedial and the reference in the rule to prejudice in the conduct of the defence was a reference to material prejudice in the sense that by reason of the delay the chances of a fair trial have become unlikely: see Mirkazemi v Manns [2009] TASSC 91 at [15]-[17]. Counsel for the Council agreed with that submission.

4. While it was not a specific ground of appeal, counsel for the appellant also submitted that the Associate Judge had approached a consideration of the evidence incorrectly, and that led him into error as to his conclusion. Counsel submitted, and counsel for the Council again did not disagree with this submission, that the party seeking the amendment bore the burden of persuading the Court that the amendment would not cause prejudice to the other party. However, the party opposing the amendment would ordinarily bear the evidential onus of adducing evidence in relation to prejudice, at least where the proof of prejudice lay in the hands of that party.

5. In effect, the submission of counsel for the appellant was that it was for the Council to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned if the amendments were allowed, and it was then for the appellant to show that those facts did not amount to material prejudice.

6. The focus of the argument before this Court was the amendments sought in par 7 in the proposed statement of claim. In pars 7(a) to (e) inclusive, the appellant set out the representations which she asserted had been made, and it was the evidence in relation to these which the Associate Judge considered.

7. As to the representation contained in par 7(a), the appellant asserted certain things were said to her in a telephone conversation between her and Keith Edwards, then an employee of the Council, in or about 1999. Mr Edwards left the employ of the Council in 2009. For the purpose of this application, he swore an affidavit and was cross-examined. In substance, as at 2014, he could not recall if he had had a conversation with the appellant in 1999, and, if he did, what it was about. He said, when cross-examined, that he might have recalled details if asked within a reasonable time but could not say what that might have been. The Associate Judge found that Mr Edwards' position would probably have been the same even if the new allegations had been introduced in a timely fashion. In essence, what the appellant says is that Mr Edwards probably would not have remembered this conversation at the beginning of 2012 (that is, within the limitation period) and therefore there can be no material prejudice now because nothing has changed. Underlying this was an acceptance there might be prejudice, but that it could not be material, given that prejudice was very possibly there many years ago.

8. Counsel for the Council submitted that Mr Edwards was not asked what his recollection was likely to have been at the beginning of 2012, or even when he left work in 2009. It was a matter of inference only what his recollection might have been at either of those dates.

9. The representation asserted in par 7(b) relates to alleged assertions by Patrick Earle. The representations, the subject of this part of the pleadings, were contained in correspondence, being a letter sent by the appellant to Mr Earle dated 19 November 2003 and his reply dated 24 November. The Associate Judge did not deal with that representation at all in his reasons, and gave no reason as to why it might or might not give rise to any prejudice. There would seem no basis upon which it could. Counsel for the Council did not make any contention relating to it.

10. The representation asserted in par 7(c) relates to a conversation the appellant says she had with Mr Earle on 7 May 2004. Mr Earle said in an affidavit sworn 15 July 2014:

    "I have made all proper enquiries of the Council records and have been unable to locate any notes, correspondence, reports or other indications that advice was provided to Ms Christa Batt in relation to the Council's position on the status of land known as Devon Street prior to the date on which the Council became aware Ms Batt had acquired the land in or about April 2008."

    He acknowledged he had been able to find the November 2003 letters. His affidavit was silent as to whether he recalled any conversation with the appellant, and he gave no oral evidence. The finding of the Associate Judge in the second sentence of [9] of his unreported reasons was not, in my view, entirely accurate. There was no note of any conversation, but Mr Earle was never asked if he recalled whether there was a conversation or not, and if he did recall there was one, whether he recalled its contents.

11. As to the representation asserted to have been made in par 7(d), it relates to dealings between the appellant and Council officers, Dennis Ling and Allen Carman-Brown in late 2004 or early 2005. All it is asserted that Mr Ling did was get out a map and look at it with Mr Carman-Brown. Mr Carman-Brown was a planner with the Council. He had no specific memory of the asserted conversations occurring, or, if they did, what was discussed. He said in an affidavit sworn 18 July 2014:

    "This is due to my memory having diminished since the alleged occasion was some 9 years ago, and given the number of enquiries which I have been exposed to since then. As with many counter enquiries at the time there would not be any record or file note of such a conversation."

    Mr Carman-Brown said he left the Council about six years before October 2014. At the time he left, he would have dealt with up to 10 counter enquiries a day and he could not recall the individual conversations. He had a contract to do similar work with another council until about four years before October 2014. He could not recall conversations over the counter there either. There was no evidence at all from Mr Ling.

12. As to the representation asserted in par 7(e), that related to an assertion that a particular Council officer, Brian Dawes, did not say there were any issues with the Property during a conversation in or about April 2006. He gave no evidence on this application.

13. Having considered the evidence, the Associate Judge determined that he was not persuaded that the chances of a fair trial had not become unlikely. Because he was not satisfied that the chances of a fair trial had not been lost, there was no discretion to permit the amendments sought.

14. As I have already said, the Associate Judge dealt with the application by reference to r 427(2A). Before any discretion to grant or refuse leave to amend could be enlivened, his Honour had to firstly be satisfied that the Council would not, as a result of leave being granted, be prejudiced in the conduct of its defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. His Honour correctly identified that position at [18] of his reasons.

15. In Mirkazemi v Manns, the Associate Judge dealt with an application to amend by reference to r 427(2A). At [17], his Honour said:

    "17 As sub-rule (2A) is concerned with the bringing of claims after a limitation period has expired, the cases regarding the discretion to extend time under limitation legislation provide guidance as to the interpretation to be given to the rule. Upon an application for an extension of time a significant factor in the consideration is the issue of whether the delay would cost the defendant a fair trial. Hill v IlukaCorporation Ltd [2002] TASSC 113. As to the meaning of prejudice in a limitation of actions context 'the real question is whether the delay has made the chances of a fair trial unlikely'. Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 550. The rule is remedial and so should be given a beneficial interpretation. I interpret the reference in the rule to prejudice in the conduct of the claim or defence to be a reference to material prejudice in the sense that by reason of the delay the chances of a fair trial have become unlikely."

16. Neither counsel on this application cavilled with his Honour's approach in that case. Paragraph [19] of his Honour's reasons in the present case was obviously framed by reference to the factors identified in Mirkazemi v Manns.

17. Counsel for the appellant submitted that what the appellant was obliged to do was persuade the Court that, upon the evidence led on the application as to possible prejudice to the Council if the amendments were allowed, any such prejudice did not amount to material prejudice; that is, that, by reason of delay, the chances of a fair trial had not become unlikely. He submitted that, in relation to some of the asserted representations, on the evidence presented by the Council, the Associate Judge could not have been satisfied there was any prejudice at all, and that, in relation to other asserted representations, they did not give rise to any material prejudice. It had to follow that, if there was no evidence of material prejudice in the present case, that is, no evidence that the delay of the appellant in bringing forward the present amendments had rendered the chance of a fair trial unlikely, then the discretion to permit the amendments was enlivened, and should have been exercised in favour of the appellant.

18. His Honour determined that the appellant had not satisfied him that the chance of a fair trial had not become unlikely. The reasons which underpinned that conclusion were:

    ·     the delay was lengthy,

    ·     the quality of justice deteriorates with delay, and

    ·     the chance of calling witnesses with reliable memories of un-noted conversations are diminished with the passage of time.

    While his Honour did not make findings in relation to each of the asserted representations in par 7 of the proposed statement of claim as to whether they gave rise to material prejudice or not, clearly his Honour determined that generally there was material prejudice arising from the factors he identified.

19. There is no doubt that there has been inordinate delay by the appellant in raising the particular representations she now seeks to raise, and there has been no explanation for that delay. However, whether that inordinate delay to 2014 rendered the chance of a fair trial for the Council unlikely is a different issue. From the evidence of Mr Edwards, there is an inescapable inference that even had the representation asserted in respect of him been raised in 2006, it is unlikely he would have had an independent memory of the details. As to the representation relating to Mr Carman-Brown, the Associate Judge determined at [14] of his reasons that it was impossible to say whether Council officers would have had any better recollection had the allegations been brought to the Council's attention in December 2006 rather than 2014.

20. I note that the appellant could, quite legitimately and without recourse to r 427(2A), have sought to plead these matters, for example, at the end of 2011 prior to the expiration of the limitation period. Had she done that, she would not have faced the hurdle raised by r 427(2A). She would have simply been seeking the exercise of a discretion. It must be inferred from the evidence that any prejudice occasioned by delay and its effect on memory is more likely than not to have existed then. Can it be said anything has changed such as to now make that prejudice material in the context of r 427(2A). Save for the passage of further time, no other factor has been identified.

21. The thrust of the appellant's argument now is that, even had she brought an application to amend shortly prior to the expiration of the limitation period, the same effects on memory of witnesses would have existed. Any prejudice brought about by the adverse effects on memory over time now is no different and cannot be material prejudice within the meaning of r 427(2A).

22. The Associate Judge considered, as in my view he was entitled to do, the question of material prejudice and delay by reference to delay generally. There can be no doubt that the likelihood of any former or current Council officers having any ability to give evidence about conversations said to have occurred so many years ago is probably close to nil. In that context, it was open to his Honour to find that the appellant had not satisfied him that the chance of a fair trial had not been lost, or that the chance of a fair trial had not become unlikely. No error has been established.

23. In those circumstances, the appeal should be, and is, dismissed.

24. While it is unnecessary to deal with the issue because of the conclusion I have reached, counsel for the appellant submitted that, if the appeal were allowed, the appellant's amendments should be permitted, subject to some further amendments referred to in par 17 of his written submissions. Counsel for the Council indicated that, if the appeal were to succeed and the amendments in the proposed statement of claim were allowed, he had no objection to the further amendments sought.

25. There was an assumption on the part of counsel for the appellant that, if the appeal succeeded, any discretion which should have been enlivened would be exercised in favour of the appellant. Counsel for the Council however submitted that, if the appeal were to succeed, and a discretion were enlivened, it was still open to the Court to refuse to exercise that discretion in favour of the appellant. He submitted that the application to amend had been made over seven years after the proceedings were commenced. The application was made five days before the trial was due to start and the appellant had sought, by her amendments, to introduce a totally different cause of action. The Council would suffer obvious prejudice in its inability to address allegations in circumstances where its witnesses had no present recollection of the conversations relied on.  No order for costs could cure that prejudice. I would have accepted the submissions by counsel for the Council and, in any event, have refused leave.