Brooks, Jodi-Anne v Pharmacia and Upjohn (Formerly Known as the Upjohn Co)
[1998] FCA 1302
•15 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE – interlocutory judgment – motion seeking leave to amend pleadings on eve of trial – whether amendment of pleadings time barred – whether prejudice, if leave granted, of such magnitude that it cannot be relieved
Federal Court Rules, O 13 rr 2(1), 2(2), 2(3), 2(7)
National Australia Bank v Nobile (1988) 100 ALR 227, cited
Shannon v Lee-Chun (1912) 15 CLR 257, cited
JODI-ANNE BROOKS v PHARMACIA & UPJOHN (FORMERLY KNOWN AS ‘THE UPJOHN COMPANY’) & ORS
NG 211 of 1993
O’CONNOR J
SYDNEY
15 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 211 of 1993
BETWEEN:
JODI-ANNE BROOKS
APPLICANTAND:
PHARMACIA & UPJOHN (FORMERLY KNOWN AS ‘THE UPJOHN COMPANY’)
FIRST RESPONDENTPHARMACIA & UPJOHN PTY LIMITED (FORMERLY KNOWN AS ‘UPJOHN PTY LIMITED’)
SECOND RESPONDENTDR MARTIN RICHTER
THIRD RESPONDENTDR DONALD MAXWELL
FOURTH RESPONDENTJUDGE:
O'CONNOR J
DATE OF ORDER:
15 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The applicant be granted leave to file its Fourth Further Amended Statement of Claim.
NOTE:SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 211 of 1993
BETWEEN:
JODI-ANNE BROOKS
APPLICANTAND:
PHARMACIA & UPJOHN (FORMERLY KNOWN AS ‘THE UPJOHN COMPANY’)
FIRST RESPONDENTPHARMACIA & UPJOHN PTY LIMITED (FORMERLY KNOWN AS ‘UPJOHN PTY LIMITED’)
SECOND RESPONDENTDR MARTIN RICHTER
THIRD RESPONDENTDR DONALD MAXWELL
FOURTH RESPONDENTJUDGE:
O'CONNOR J
DATE:
15 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR INTERLOCUTORY JUDGMENT
A directions hearing in this matter requested by the first and second respondents was held on 29 September 1998. At that hearing the following orders were made:
1.Applicant to file and serve any amended Statement of Claim, Notice of Motion and supporting affidavits by 12 noon, 30 September 1998.
2.Respondents to file and serve evidence in reply by 12 noon, 1 October 1998.
3.Applicant’s Notice of Motion listed for hearing at 10.15am, 2 October 1998.
The urgency and short service were necessary because the matter was listed for hearing on 12 October 1998.
By notice of motion filed and dated 30 September 1998 the applicant made an application for leave to file a Fourth Amended Statement of Claim. This motion was part heard on 2 October 1998 and then adjourned to 12 October 1998.
Background
On 24 June 1993 the applicant filed her original Statement of Claim. This claim contained the following relevant paragraphs:
“11.On or about 9 April 1990 the Applicant attended the Third Respondent for management of her sacro-coccygeal pain. The Third Respondent administered DEPO-MEDROL to the Applicant by intrathecal injection(s).
…
13.The Applicant suffered personal injuries, loss and damage as a result of the injection(s) of DEPO-MEDROL.”
On 15 September 1993 the applicant filed an Amended Statement of Claim containing the following paragraphs:
“11.1On or about 9 April 1990 the Applicant attended the Third Respondent for management of her sacro-coccygeal pain.
11.2The Third Respondent administered the injection(s) to the Applicant into the intrathecal/subarachnoid space.
…
13.The Applicant suffered personal injuries and ongoing loss and damage as a result of the injection(s) of DEPO-MEDROL.”
On 3 December 1993 the applicant filed a Further Amended Statement of Claim containing the following paragraph:
“1.2The Applicant brings this action as a result of injuries and ongoing disabilities suffered following an injection (“the injection”) into her caudal epidural space on or about April 9 1990. The injection contained 80mg of the pharmaceutical product Methyl Prednisolone Acetate Sterile Aqueous Suspension USP “DEPO-MEDROL” given in 10ml of normal saline. The injection was administered by the Fourth Respondent at the request of the Third Respondent.”
On 18 February 1994 the applicant filed a Second Further Amended Statement of Claim containing the following paragraph:
“6. On or about 9 April 1990 the Applicant:
(a)was administered an injection into her caudal epidural space (“the Injection”);
(b)the Injection contained 80mg of the pharmaceutical product Methyl Prednisolone Acetate Sterile Aqueous Suspension USP “DEPO-MEDROL” given in 10ml of normal saline; and
(c)The Injection was administered by the Fourth Respondent at the request of the Third Respondent.”
On 17 June 1994 the applicant filed a Third Amended Statement of Claim containing the following paragraph:
“6.During April and May, 1990 the Applicant was admitted to St Vincent’s Hospital, Darlinghurst, Sydney (the “Hospital”) where the Third and/or Fourth Respondents administered a quantity of Methyl Prednisolone Acetate Sterile Aqueous Suspension USP marketed in Australian under the trade name of DEPO-MEDROL (“DEPO-MEDROL”) into her spine (the “Injections”).”
On 30 September 1998 in response to the orders of 29 September 1998 the applicant’s solicitor filed an affidavit annexing a proposed Fourth Amended Statement of Claim containing the following paragraph:
“6.During April and May, 1990 the Applicant was admitted to St Vincent’s Hospital, Darlinghurst, Sydney (the “Hospital”) on various occasions and attended the rooms of the Third Respondent for the purposes of administration of Methyl Prednisolone Acetate Sterile Aqueous Suspension USP marketed in Australian under the trade name of DEPO-MEDROL (“DEPO-MEDROL”) into her spine (the “Injections”).”
On 12 October 1998 the applicant sought leave to file in court a Fourth Further Amended Statement of Claim containing the following paragraph:
“6.(a) During April and May 1990 the Applicant was admitted or attended at St Vincent’s Hospital and/or St Vincent’s Private Hospital Darlinghurst and/or attended the rooms of Dr John Branson and/or attended the rooms of the Third and Fourth Respondents;
(b)During the said period the Applicant received into her back and spine injections of DEPO-MEDROL as follows:
(i)Dr Maxwell 9 April
(ii)Dr Branson 30 April
(iii)Dr Richter 16, 18 and 22 May;
(c)The injection given by Dr Maxwell was either a lumbar epidural or intrathecal (inadvertent or otherwise) injection or a caudal block or intrathecal (inadvertent or otherwise) injection and was given blind;
(d)The injection of Dr Branson was a facet joint injection;
(e)The injections by Dr Richter were either facet joint injections or injections into areas of the lower back/sacrum and/or sacro-coccygeal area and/or in and around the spine and were injected blind;
(f)The above injections either individually or in combination or cumulatively caused or contributed to injury to the Applicant.”
Issues
The first and second respondents oppose the granting of leave to file the Fourth Further Amended Statement of Claim in this matter on two bases:
That the new facts, as pleaded, and consequently, the new causes of action based on these new facts are time barred; and
That the significant prejudice flowing to the first and second respondents if leave to file were granted is of such magnitude that it cannot be relieved.
The amendments sought were not opposed by the third and fourth respondents.
Rules governing amendment of pleadings
The amendment of pleadings in the Federal Court is governed by Order 13 of the Federal Court Rules which relevantly state:
“General
2. (1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.
…
(7) An amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment.”
Are the new claims time barred?
This issue turns on firstly the meaning of paragraph 6 and particular words within it and secondly whether particular facts which were pleaded in paragraph 6 of the Third Amended Statement of Claim were material. The first and second respondents submit that the facts (which are material) pleaded in paragraph 6 are unequivocally “restricted to the single injection, given by Dr Maxwell, at Dr Richter’s request on 9 April 1990”. They rely in making this submission on the fact that the Applicant’s solicitors, in a letter dated 15 July 1994 replying to a request for particulars in respect of paragraph 6 from the solicitor for the first and second respondents said that the pleading in paragraph 6 was restricted to this single injection. The solicitor who replied in those terms has sworn an affidavit (EX A) that this response had been made in error, by a former employee of the applicant’s firm of solicitors and that although she signed the correspondence she was not cognisant of the error within it until she received the first and second respondents’ letter of 2 September 1998 seeking to “clarify” the matter. Contemporaneous documents from the applicant’s solicitor’s file were tendered by both the applicant and the first and second respondents to assist in understanding the course of events in 1994 (EXs 1 and B). Having considered this material and the responses of the solicitor in cross-examination I am of the view that the applicant’s solicitor did have substantial input into the preparation of the answers to the request for particulars, however I also consider that, when drafting paragraph 6, she intended it to refer to all of the injections listed on a written notation attached to a draft statement of claim (EX B) in the following terms:
“BROOKS
Injections
28
March ’90 Richter
April – consultations9-10 April 90 Maxwell Inj (1)
30 April 90 ? Inj (2)
16 & 18 May 90 ? Inj (3 & 4)
22 May 90 ? Inj (5)”.
Evidence filed on behalf of the applicant subsequently included and referred to injections in addition to the injection on 9 April 1990, as did evidence filed on behalf of the first and second respondents. The solicitor responsible for this matter on behalf of the first and second respondents said, and I accept, that he was alerted to the reliance on multiple injections, firstly by the applicant’s statement of evidence and then by medical reports filed on the applicant’s behalf , hence the letter of 2 September 1998. He also said he had consulted solicitors acting for the third respondent about the matter but, in the light of the applicant’s answer to the request for particulars he did not regard these as having been pleaded in 1994.
However, to further support their claim that causes of action based on any injections other than that of 9 April 1990 are time barred the first and second respondents submit that the phrase “a quantity of Depo-Medrol” which appears in paragraph 6 is only to be construed as “a (single) quantity of Depo-Medrol”. In my view the use of the word “quantity” is not conclusive as to whether one or more than one injection was involved.
The first and second respondents also submitted that although paragraph 6 refers to a period of two months during which the injection treatment was given, the qualification in the paragraph that this treatment occurred while the applicant was admitted to St Vincent’s Hospital precludes reliance on injections given by Drs Lonergan/Branson which were given in private rooms at the hospital and at least one of the injections given by Dr Richter which was given in his private rooms.
The applicant submits however that the geographical location(s) where the injections were given are not a material facts. Neither, in so far as, claims against the first and second respondent are concerned, is the identity of the person who carried out the injections.
I find that paragraph 6 in the Third Amended Statement of Claim is referring to the injections administered to the applicant during April and May 1990 and where they were given and by whom is not material to the case against the first and second respondents. I therefore conclude that the amendments sought to be made are able to be made pursuant to Order 13, Rule 7 because they arise out of substantially the same material facts as those already pleaded, and consequently are not time barred.
Should leave be refused as a matter of discretion?
As stated above, this application to amend pleadings was filed on 30 September 1998 and heard on 2 and 12 October 1998. The hearing of the case was to have commenced on 12 October 1998 and has been fixed for 80 hearing days. The matter was first filed in this Court in 1993 concerning events which took place in 1990. This was the sixth pleading or amended pleading which the applicant has sought to file. However on 12 October 1998 when the hearing of the motion was resumed, the applicant, no doubt having considered the submissions made on 2 October 1998, sought leave to file a Fourth Further Amended Statement of Claim.
Submissions of the parties on this issue
The first and second respondents, in opposing the application for leave describe the giving of leave in the circumstances of this case as “an indulgence”, and one, which if given would create significant prejudice to the first and second respondents which could not be cured.
The first and second respondents put, on the question of the exercise of the discretion available under the rules, the following matters to the Court:
The applicant had deliberately framed her case in a particular way and the first and second respondents may have conducted their case differently had the new issues now wishing to be pleaded been raised in 1994 when the Third Amended Statement of Claim was filed.
The pleadings have stood in that form for over 4 years. Moreover any ambiguity in the Third Amended Statement of Claim, paragraph 6 was clarified and resolved by the response to a request for particulars sent by letter dated 15 July 1994.
This supply of particulars could be construed as an “election” by the applicant to limit her case and she should not now be able to withdraw from this.
The form of pleading to date had been “consistent” as to the material facts relied upon ie. one particular injection, in five different versions of the pleading for over five years and only now on the eve of the hearing is reliance sought on a number of injections.
The applicant, in circumstances like these is obliged to put forward a convincing case that, in the circumstances, she should have leave to amend and has not done so.
A costs order is no panacea to the first and second respondents for the prejudice created by this amendment because (it is asserted) the applicant has no capacity to pay such costs if ordered to do so.
The applicant submits that the Fourth Further Amended Statement of Claim does not seek to change, in substance, the nature of the case pleaded by her in the Third Amended Statement of Claim. The amendment seeks no more than to confirm that the applicant’s claim covers all the injections administered to the applicant in April and May 1990 and amounts to an exercise in particularising the case of the applicant.
The applicant says that although the response to the request for particulars sought by the first and second respondents misled them as to the case they had to meet in July 1994, the fact that the other injections would be part of the applicant’s case, was known to the first and second respondents in 1997.
The applicant submits that when the first statement was filed on behal of Dr Richter, the third respondent, on 5 September 1997 in which he dealt with the other injections, at that time and on that basis alone the applicant would have been entitled to have the particulars of her claim amended to raise a case based on the other injections had she sought to do so. Also, the solicitor for the first and second respondents were aware that the applicant’s evidence and medical evidence on her behalf were referring to more than the one injection during 1997.
Decision
The principles governing the exercise of the discretion sought to be exercised in this case are conveniently set out in the following passage:
“Pleadings are intended to enhance the achievement of justice, not to hinder it. Unless good reason appears to the contrary, an amendment should be made to raise the real issues between the parties: see, for example, Cropper v Smith (1884) 26 Ch D 700 at 710-721 per Bowen LJ. As Muirhead J said in Caruso Australia Pty Ltd v Portec Australia Pty Ltd (Federal Court, G29/1983, 13 February 1986, unreported):
‘The powers of this court to amend pursuant to O 13, r 2 are more than wide, they tend to be remedial in that ‘all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.’ Consideration of the authorities indicates that an amendment should only be refused where bad faith is demonstrated or where the consequential injury or prejudice to the other party is incapable of remedy. And this reasoning applies to amendments sought during trial or on the eve of trial.’”
(per Davies J in National Australia Bank v Nobile (1988) 100 ALR 227 at 235).
The first and second respondents do not go as far as to assert that the carelessness of the applicant’s solicitors in answers to particulars or the alleged ambiguity of the relevant pleading amount to bad faith on their part. Nor could one describe their actions as amounting to deliberate delay or neglect. Those acting for the applicant have proceeded in a way consistent with genuine, albeit unfortunate, error on their part – an error they have sought to remedy by this application.
There is no doubt that substantial cost and inconvenience to all parties in this matter has been created by this last minute application to amend the pleadings. Consequential orders to be made will undoubtedly reflect this. However, the third and fourth respondents do not oppose the amendments sought, even though they agree that the consequences should be reflected in appropriate adjournment on terms (which is opposed by the applicant).
The argument that additional expense, which it is asserted cannot be recovered, amounts to sufficiently serious injustice to justify refusal of the application to amend is not accepted. The prejudice to the first and second respondents is, in my view, capable of remedy.
As was said by Isaacs J in Shannon v Lee-Chun (1912) 15 CLR 257, at 265:
“There is not only a power, but even an imperative duty cast … on the court, to let no formality stand in the way of solid justice. The court is directed to make every amendment, and at all times, so as to enable it to do what is right between the parties, and in the fairest and fullest manner possible to arrive at a determination of the substantial matter in dispute … it may be that the plaintiff was lax or forgetful in not putting his pleading in the form in which it should have been originally … The question, therefore, in this case is, would the defendant be so prejudiced by this amendment that he would not have justice done?”
Asking this question in the present case the answer is that the first and second respondents would not.
The applicant is granted leave to amend in terms of the Fourth Further Amended Statement of Claim.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor
Associate:
Dated: 15 October 1998
Counsel for the Applicant: B Donovan QC with K Connor Solicitor for the Applicant: Cashman & Partners Counsel for the First and Second Respondent: R Allaway QC with M McCulloch Solicitor for the First and Second Respondent: Minter Ellison Counsel for the Third Respondent: P Brereton Solicitor for the Third Respondent: Blake Dawson Waldron Counsel for the Fourth Respondent: J Poulos QC with D K Jordan Solicitor for the Fourth Respondent: Tress Cocks & Maddox Date of Hearing: 2 and 12 October 1998 Date of Judgment: 15 October 1998
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