Clarke v Cirocco Constructions Pty Ltd - [2022] SASC 126

Supreme Court of South Australia
(Appeal to a Single Judge)
CLARKE v CIROCCO CONSTRUCTIONS PTY LTD & ORS
[2022] SASC 126
Judgment of the Honourable Justice Stanley
3 November 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
This is an application for permission to appeal from an interlocutory order of a Judge of the District Court refusing an application to amend pleadings.
The First Respondent and Appellant entered a contract to build a domestic residence. The First Respondent commenced an action for breach of contract due to a failure to make a progress payment in May 2015. The Appellant filed a cross action. The Appellant’s initial cross action did not include a claim regarding the colour of stone. The Appellant’s cross action was amended to allege a breach of contract in relation to the stone colour that comprised the building work. The cross action was amended further in March and November 2017, December 2018 and July 2020. By interlocutory application dated 29 June 2022, the Appellant sought to further amend the pleadings in relation to stone but not in relation to her case on stone colour selection, instruction and approval.
The matter came on for trial in the District Court on 6 July 2022. The Appellant’s case was that, inter alia, the First Respondent breached the contract by using materials that were not of a standard required by the contract.
In their opening, the Appellant foreshadowed a further application to amend regarding the colour of stone required. That application was subsequently made on 17 July 2022 during the course of the trial.
The District Court Judge ultimately refused the application. The judge found the explanation for the timing of the application to be unsatisfactory, the proposed amendment to be significant and that the Respondents would suffer prejudice. This decision was the subject of the application.
Held dismissing the application for permission to appeal:
(1)     If an appeal against a discretionary decision is to have any prospects of success, it must allege either a failure to take into account a relevant consideration, that the judge has acted upon an irrelevant consideration, or that the decision lies outside the range of any reasonable exercise of the discretion such that it can be characterised as manifestly unreasonable.
(2)     The District Court Judge correctly assessed that the proposed amendment is a significant change to the Appellant’s case.
(3)     A party is entitled to rely upon an opponent’s pleadings for the purposes of making forensic decisions as to the conduct of the party’s case at trial. The First Respondent was entitled to conduct his defence to the cross-claim on the pleadings as they stood.
(4)     There is no error in the judge exercising her discretion to refuse the application to amend on the basis of the finding about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clarke v Cirocco Constructions Pty Ltd

Details

AGLC: Clarke v Cirocco Constructions Pty Ltd [2022] SASC 126
Case: [2022] SASC 126
Decision Date: 3 November 2022

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Clarke v Cirocco Constructions Pty Ltd involved a dispute over the allowance of an amendment to pleadings. The appellant, Mrs Clarke, sought to amend her pleadings to include a new allegation that the use of stone in category 3 was in breach of contract, despite having previously alleged conformity with contractual specifications. The respondent, Cirocco Constructions, opposed the amendment. The Court was tasked with determining whether the trial judge correctly exercised his discretion in denying the amendment, and whether the Court should grant leave to appeal the trial judge's decision.

The central legal issue was whether the trial judge erred in denying the amendment. This involved examining if the amendment was a significant change in the facts Mrs Clarke sought to allege, and if the judge appropriately considered all relevant factors in making his decision. Additionally, the Court had to assess whether the judge's decision was manifestly unreasonable and whether the appeal court should exercise its discretion differently.

The Court found no error in the judge's decision. The amendment sought by Mrs Clarke was deemed a significant change in her case, having been proposed more than nine years after the relevant meeting and through multiple iterations of her pleadings. The judge correctly assessed the relevance and impact of this proposed change. The opportunity for cross-examination by Cirocco did not constitute a failure to consider relevant factors, as Cirocco had been explicitly warned of the case to be presented by Mrs Clarke. The Court concluded that the trial judge's exercise of discretion was not manifestly unreasonable and did not result from a failure to consider relevant matters or take into account irrelevant considerations.

The Court dismissed the application for leave to appeal, indicating that the appeal did not meet the threshold for success as established by precedents such as Aon Risk Services v Australian National University. The Court also noted that it would hear the parties regarding costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As no error has been made by the judge, the question of whether this Court should exercise afresh the discretion to allow the amendment does not arise. Conclusion I would dismiss the application for permission to appeal. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

If an appeal against a discretionary decision is to have any prospects of success, it must be established that the discretionary decision resulted from a failure to take into account a relevant consideration, taking into account an irrelevant consideration, or that the decision is outside the range of any reasonable exercise of the discretion such that it can be characterised as manifestly unreasonable. In Sadaat, Kourakis CJ analysed the High Court’s reasons in Aon Risk Services v Australian National University (‘Aon’).[8]He concluded that the effect of those reasons is that it is an error to approach the competing interests of the parties, and the public, with a presumption that the indulgence sought, coupled with an order for costs, should be given if the party seeking it would otherwise be precluded from litigating an arguable case. The proper approach is to give all of the competing considerations the weight accorded to them by the particular facts and circumstances of each case, free from any presumptive tipping of the scales.[9] The weighing of relevant matters falls squarely within the discretion of the trial judge. If all relevant, and only relevant matters are weighed, and the ultimate result is not manifestly unreasonable, the judge’s discretion is not vitiated because the appeal court might have weighed the factors differently.[10][8] (2009) 239 CLR 175.[9] Commonwealth v Saadat & Ors [2019] SASCFC 124, [65]; (2019) 134 SASR 184, [200].[10] Ibid, [187].Consideration I do not accept that the judge erred in fact and law in misconstruing the effect of the proposed amendment. The judge correctly apprehended that Mrs Clarke proposed to allege for the first time that the use of stone in category 3 was in breach of contract having pleaded a case that the use of stone in categories 2 and 3 conformed to the contractual specifications notwithstanding what she alleged was the effect of instructions given by her to her architect at the Gillman meeting on 30 April 2013. This amendment was sought to be made more than nine years after this meeting and in circumstances where the pleading had been through at least four previous iterations of her case complaining about the use of stone that was not within the range of categories 2 and 3. The judge correctly assessed that this proposed change in the facts Mrs Clarke now wishes to allege, is a significant change in her case.[11] [11] Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 18 July 2022), [9] and [11]. I also note that in addition Mrs Clarke sought to plead a case, for the first time, that the use of stone in colour category 1 was in conformity with the building contract. However, Cirocco does not submit that this amendment would occasion it any actual prejudice. I accept that it would not. I do not accept that the judge erred by failing to take into account the opportunity that the respondents had and took to cross-examine Mrs Clarke and Dr Clarke in respect of the case that had been outlined at the commencement of the trial in the opening submissions of counsel for Mrs Clarke. During the course of Mrs Clarke’s evidence she was cross-examined by Mr Ross-Smith, counsel for Cirocco, on the pleadings as they stood at the commencement of the trial, notwithstanding the terms upon which counsel for Mrs Clarke had opened. Mr Ross-Smith was entitled to adopt that approach. Those instructing him had expressly warned the solicitors acting for Mrs Clarke by email on 27 June 2022 that Cirocco would defend the cross-claim as pleaded. That Mr Ross-Smith had the opportunity to cross-examine on the allegations made by counsel for Mrs Clarke in opening submissions but elected not to do so in accordance with forensic decisions that had been made before the commencement of the trial, is not a basis, in the circumstances of this case, to justify subsequently granting an amendment. The effect of such a course would conform the pleadings to the opening submissions of counsel for Mrs Clarke. That would be a case of the tail wagging the dog.