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 the existence of prejudice.
(5)     The decision to reject the application to amend was not manifestly unreasonable.
Uniform Civil Rules (SA) r 213.1, 213.4, 217.10 and 217.11, referred to.
Commonwealth v Sadaat & Ors [2019] SASCFC 124, [48]; (2019) 14 SASR 184, [194]; Aon Risk Services v Australian National University (2009) 239 CLR 175, considered.

CLARKE v CIROCCO CONSTRUCTIONS PTY LTD & ORS
[2022] SASC 126
Civil
STANLEY J:
Introduction

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.
In this matter Mrs Clarke contracted with Cirocco Constructions Pty Ltd (Cirocco) to build a domestic residence. Cirocco brought proceedings against Mrs Clarke for failure to make a progress payment pursuant to the contract. Mrs Clarke is defending that claim and has also brought a cross-action against the builder, Cirocco; the architect, Williams Burton Architects Pty Ltd; and Tasmania Sandstone Quarries Pty Ltd as the supplier of stone for the purposes of the building work. Relevantly, Mrs Clarke alleges a breach of contract in relation to the colour of the stone used in the building work. The shade of stone colour is described and distinguished by number, the lightest colour being category no. 1 and the darkest colour being category no. 9.
Cirocco commenced the action in April 2015. Mrs Clarke brought the cross-action in May 2015. There was no stone colour claim in that cross-action. In December 2015 the cross-action was amended to allege a breach of contract in relation to stone colour. The amendment alleged a breach of contract in using stone that was not in category 2 or 3. In response to a notice to admit in 2016 Mrs Clarke adhered to her pleaded case that stone outside of colour categories 2 and 3 was in breach of contract. The cross-action was subsequently amended in March 2017, November 2017, December 2018 and July 2020. By interlocutory application dated 29 June 2022 Mrs Clarke sought to amend further the pleading in relation to stone but not in relation to her case on stone colour selection, instruction and approval.
On 6 July 2022 the matter came on for trial before her Honour Judge Thomas in the District Court.
When the trial commenced Mrs Clarke was alleging that Cirocco breached the contract, inter alia, by using materials that were not of a standard required by the contract. That allegation was particularised and pleaded in paragraph 19A of the fifth defence and seventh cross-action.
Paragraph 19A pleads the facts relevant to Mrs Clarke’s case as to the supply and installation of stonework. Pursuant to the contract, the stone to be supplied by Cirocco was to be “consistent in colour, texture, density etc., and within an acceptable range in comparison to the approved stone samples”. Sub-paragraph 19A.4 pleads that a meeting occurred on 30 April 2013 when Mrs Clarke and her architect, Mr Williams, attended at the premises of the proposed stone supplier at Gillman for the purposes of viewing colour samples and making a selection. It is further pleaded that at this meeting Mrs Clarke selected and gave instructions to use stone in colours “2 to 3”. In sub-paragraph 19A.6, by Architect’s Instruction 04(AI04) of 1 May 2013, Mr Williams is alleged to have instructed Cirocco that the stone colour is to be “2 and that the stone supplier / mason is to remove any stones fitting into the colour category 3”. In sub-paragraph 19A.7 it is pleaded that, by the selection made by Mrs Clarke, Cirocco was required, under the contract, to purchase and use stone in the range of colours 2 to 3. In sub-paragraphs 19A.11 and 19A.12 it is pleaded that at a site meeting on or about 18 June 2013 attended by Mrs Clarke, Mr Williams, Mr Cirocco and a Mr Calabrese from the stone supplier, Mrs Clarke identified stones that were being laid which were of a colour darker than samples 2 and 3 and therefore unacceptable. In sub-paragraph 19A.15 it is alleged that in breach of the contract the stonework installed was not within an acceptable colour range of 2 to 3. It can be seen that there is an inconsistency between the pleading in sub-paragraph 19A.6 and the rest of the pleading in sub-paragraph 19A.
In opening submissions counsel for Mrs Clarke said that sub-paragraph 19A.15(i) pleads that the stonework was not “within an acceptable range of the very light-coloured stone, being the range of colours 2, we say up to 3, but not including 3”. The judge queried that submission on the basis that the pleading in sub-paragraph 19A.15(i) did not say “but not including”. Counsel responded by submitting that that was the effect of AI04. The judge observed that while that was the effect of AI04, that was not the way in which the breach was pleaded. Counsel submitted that that was his case. Later, counsel submitted that it was Mrs Clarke’s case that Cirocco was bound to comply with the instruction in AI04.
Mrs Clarke and her husband Dr Clarke then gave evidence, as did a witness Ms Crowden. On 12 July 2022, before Mrs Clarke had completed her evidence, the judge again raised the state of the pleading in relation to the specification of the stone colour of range 1-3 in the contract. Her Honour said:[1]
I need to go back and have a look at [Mrs Clarke’s] pleadings because that is not what he opened on. I don’t understand why 1-3 only means 1-3 not including 3 when it includes 1 but nevertheless…
[1] Transcript of Proceedings, Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 12 July 2022) 397.
Counsel for Mrs Clarke said that he would get instructions about the pleading when his client had finished her cross-examination. However, in that context, he fell back on the plea relating to AI04. He said:[2]
But there is work to be done on AI04 which excludes 3. And whatever the words are in the pleading, AI04 is pleaded and the need for stones to be white is pleaded. I will get instructions if I need to make an application with respect to 1-3 and your Honour can deal with questions and all of that, but AI04 excludes 3.
[2] Ibid, 400.
On 15 July 2022 counsel for Mrs Clarke foreshadowed an application to amend. That application was made on 17 July 2022. It proposed to amend paragraph 19A. First, by deleting reference in sub-paragraph 19A.4 to colours 2 to 3 and substituting in lieu thereof reference to colours 1 and 2 “thereby instructing the approval of colour falling into the colour range of 1 up to but not including 3”. Second, in sub-paragraph 19A.7, by replicating the amendment to the colour plea from “2 to 3” to “2 up to but not including 3”. Third, in sub-paragraphs 19A.11 and 19A.12, by deleting reference to “samples 2 and 3”. Comparable amendments were sort to sub-paragraph 18(a) of the seventh third party claim.
The judge’s reasons
On 18 July 2022 the judge delivered a ruling dismissing this application to amend the pleading concerning the colour of the stone. Her Honour allowed an application to amend in relation to another aspect of Mrs Clarke’s pleadings concerning the Architects Instruction 07(AI07). Her Honour delivered ex tempore reasons.
There is no issue that the judge correctly directed herself as to the principles applicable to granting leave to amend the pleadings. The judge gave the following reasons for refusing the application to amend in relation to the pleas referred to above. Her Honour said:[3]
[3] Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 18 July 2022) [4]-[14].
I will deal with the owner’s case against the builder first.
The first matter of note is that this application to amend is made very late with regard to where we are in the case. It concerns the fundamental matter in issue in this hearing, that is the stone issue, and concerns not only the matters of fact that were alleged to have occurred at the critical meeting on 30 April 2013 (the subject of paragraph 19A.4) but the consequential impact of the colour selection on what is said to be the contractual specifications, therefore the breaches alleged against the builder and the architect and, in turn, insofar as the builder has any liability, the stone supplier’s liability.
The explanation for the application to amend being made at this time and in these circumstances is unsatisfactory. There has not been a full and candid explanation as to why the application was not made at the time it was foreshadowed in the owner’s opening that there was an apparent change in the owner’s pleaded case. I then flagged with Mr Dal Cin that the approval of colours 2 to 3 was now said to be approval of colours 2 up to but not including 3 but that is not what the pleading said.
That said, at the stage that the part of the proposed amendment concerning what was the approved colour range was foreshadowed, it was before any witnesses had been called and the other parties did have an opportunity to think about it and perhaps recalibrate their cross-examination of primary witnesses for the owner, in this case Mrs Clarke and her husband, Dr Clarke. Indeed, since then a third witness has been interposed, Ms Crowden.
Cross-examination of those witnesses has proceeded by all of the owner’s opponents on the basis of the case that was pleaded including the unpleaded shift of ground foreshadowed in the owner’s opening.
The nature of the amendment proposed in paragraph 19A.4 is significant, in my view. It is not the case that I find myself satisfied that I will not be troubled by it as the owner’s counsel has repeatedly submitted.
Paragraph 19A relies upon all of the facts pleaded in sub-paragraphs 19A.1 through to the end of that section of the pleading. Whilst they are not all facts because it does turn into basically a plea of breach, the first dozen paragraphs refer to matters that are relied upon by the owner for her case on the supply and installation of stone being in breach of the builder's contract and breach of the architect's retainer and implied common law duty of care.
The proposed amendment in paragraph 19A.4 does more than just shift the colour range from '2 to 3' to '2 up to but not including 3'. It presents a very different case that the approval thereby instructed at that meeting was of a colour range of 1 up to but not including 3. It is for that reason, given the prejudice that inevitably flows from the owner's opponents having cross-examined witnesses on a case that was not presented in the owner’s pleading, that I refuse the proposed amendment on colour.
I have given consideration to whether I would, in part, allow an amendment on colour and in paragraph 19A.4 and following allow '2 up to but not including 3'. However, in the circumstances where I do not think it matters whether that is the pleaded case or not given the evidence that has fallen from the witnesses to date and the likely disputes that will ensue, I have decided the preferable course is to not permit any of the proposed amendments on colour at this late stage.
I have accepted that there is prejudice, and significant prejudice, to the builder and to the other parties, although only the builder has articulated and put on evidence of that prejudice in perhaps what would be said to be the strongest fashion. I do not accept the owner’s submission and I am not satisfied that the only dispute between the parties is what colour category '2' means. The issues are more subtle than that and there are a significant number of issues which flow from the way in which the parties have conducted themselves to date, and we will see where that goes.
It follows I also do not accept that the amendments proposed on colour have no impact whatever on the way in which the builder has and will conduct its case, which is a submission that Mr Dal Cin put earlier to me.
Grounds of appeal
There are five grounds of appeal but Mr Robertson SC, counsel for Mrs Clarke on appeal, distilled those to three grounds.[4] First, that the trial judge made an error of mixed fact and law by misunderstanding the effect of the proposed amendment concerning the stone colour. Second, that the trial judge failed to take into account the opportunity that the respondents had and took to cross-examine Mrs Clarke and Dr Clarke[5] in respect of the case that had been outlined in the opening submissions made by counsel for Mrs Clarke. Third, that the trial judge erred as a matter of fact and law in finding that the respondents would suffer actual prejudice if the amendment was allowed.
[4] Transcript of Proceedings, Clarke v Cirocco Constructions Pty Ltd & Ors (Supreme Court of South Australia, Stanley J, 12 October 2022), 2.
[5] The Court had also heard evidence from the architect’s witness, Ms Crowden, who was interposed.
Approach on appeal
A decision on an application to amend pleadings is discretionary. An appeal from such a decision is governed by rules 2020 213.1, 213.4, 217.10 and 217.11 of the Uniform Civil Rules 2020. The appeal is by way of rehearing and this Court may determine the appeal as the justice of the case requires. The rules do not detract from the long-established principle that on an appeal by way of rehearing deference must be accorded to the exercise of the discretion made at first instance. The rules are premised on this principle.[6]
[6] Commonwealth v Saadat& Ors [2019] SASCFC 124, [48]; (2019) 134 SASR 184, [194].
In Commonwealth v Saadat & Ors (‘Sadaat’), Kourakis CJ, with whom Peek and Nicholson JJ agreed, explained the principles governing appeals from discretionary decisions in the following terms: [7]
[7] [2019] SASCFC 124, [49]-[52]; (2019) 134 SASR 184, [194]-[195].
The deference accorded to the exercise of a discretion at first instance reduces cost and delay. It enhances the administration of justice by precluding litigation over decisions on which judicial minds might reasonably differ unless a vitiating error of the kind described in House v The King is demonstrated.
Moreover, an appeal against an interlocutory case‑management decision of a judge can be brought only with the permission of the Court. The practice of intermediate courts of appeal is to grant permission to appeal against interlocutory decisions only if a question of general principle arises, or when it is clear that the decision is likely to work a substantial injustice if it were allowed to stand. The restrictive approach to granting permission to appeal against interlocutory case-management decisions is based on important considerations of legal policy. Appeals against case-management decisions may:
·unnecessarily delay the determination of the substantive issue;
·disproportionately increase the costs of litigation; and
·result in conflicting decisions at trial and on appeal, neither of which are clearly right or wrong, but simply reflect differences of weight and emphasis.
In Niemann v Electronic Industries Ltd, Murphy J explained that both error and a substantial injustice must be shown to attract a grant of permission to appeal against a case‑management decision:
… If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.
In Candetti Constructions Pty Ltd v M & I Samaras (No 1) Pty Ltd & Ors, Blue J identified the following relevant considerations:
1.       The question whether or not permission ought to be granted is discretionary.
2.       A factor to be considered is whether the issue raised is one of general importance, as opposed to simply depending upon the facts of the particular case.
3.       A factor to be considered is whether, viewed objectively, the issue raised is one upon which reasonable minds may differ or involves a difficult or complex question of law (going to whether the decision is attended by sufficient doubt).
4.       A factor to be considered is whether the order has the effect of determining or altering the substantive rights of the parties, as opposed to a matter of practice or procedure.
(Citations omitted)
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.
The purpose of pleadings is to confine the issues in dispute and to give fair notice to the other party to proceedings of the case that has to be met. The conduct of the case should conform to the pleadings, not the other way round. That is so for practical reasons concerned with the attainment of justice in litigation. The pleadings determine what facts and issues are relevant in proceedings for the purposes of disclosure and the admission of evidence. A party is entitled to rely upon an opponent’s pleadings for the purposes of making forensic decisions as to the conduct of that party’s case at trial.
Mr Ross-Smith was entitled to conduct his client’s defence of the cross-claim on the pleadings as they stood. While he had the opportunity to cross-examine Mrs Clarke and Dr Clarke on the case opened on by counsel for Mrs Clarke, he did not take that opportunity. He was not obliged to do so. On the contrary, he was entitled to insist on the case being conducted in accordance with Mrs Clarke’s pleadings. That is how he conducted the trial.[12]
[12] Transcript of Proceedings, Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 12 July 2022) 214.6-10, 216.29-34, 217.26-218.11, 218.31-34, 219.20-26, 219.37-220.3, 223.28-224.16, 225.6-25, 230.32-231.8, 401.22-30, 833.29-37 and 838.
Mrs Clarke submits that the judge made a finding that Mr Ross-Smith took the opportunity to address the case on which counsel for her opened. I do not accept this submission. It involves a misunderstanding of the finding that cross-examination of Mrs Clarke and Dr Clarke had proceeded on the basis of the case that was pleaded “including the unpleaded shift of ground foreshadowed in the owner’s opening”.[13] It is important to recognise that the judge’s reasons were delivered ex tempore. When understood in the proper context, having read the transcript, it is apparent that in the cited passage the judge is referring to Mr Ross‑Smith having cross-examined Mrs Clarke on the inconsistency between her counsel’s opening and her pleaded case. What Mr Ross-Smith did not do was challenge Mrs Clarke on the factual basis of the case outlined by her counsel in his opening.
[13] Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 18 July 2022) [8].
By the time the judge rejected the application to amend Mrs Clarke had had more than sufficient opportunity, over a number of years, to have pleaded the case on which her counsel had opened. Not only had Mrs Clarke failed to do so but she failed to provide any satisfactory explanation for that failure.
Undue delay in bringing an application for amendment, together with the timing of the application after the trial had commenced and Mrs Clarke was well into her case, was a cogent factor in favour of rejecting the application. As was said by the plurality in Aon, where a party has had a sufficient opportunity to plead her case it may be necessary for the Court to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the opponent and to other litigants.[14] In this case forensic decisions had been made. If the application had been made earlier the respondents might have had time to alter their forensic decisions but that opportunity had evaporated by the time the application was made.
[14] Aon Risk Services Australia v Australian National University (2009) 239 CLR 175, [94].
I do not accept that the judge erred as a matter of fact and law in finding that the respondents would suffer actual prejudice if the amendment was allowed. The judge rejected the submission of Mrs Clarke that the amendment sought was not significant. The fact of the appeal strongly suggests otherwise. It is not a compelling riposte to that proposition to say that the trial will inevitably be adjourned for other reasons which will afford the respondents time to recalibrate their cases in light of the amended pleading. That process will cost them any forensic advantage they have secured by the approach they have adopted to defending the cross-claim. In addition, that alternative course would add to the cost of proceedings. I expect those costs are already substantial.
The judge identified the existence of significant prejudice to the respondents if the application was granted.[15] That was in circumstances where Cirocco had made forensic decisions based on Mrs Clarke’s pleaded case. The judge found that the respondents would suffer from the inevitable prejudice that flows from the amendment, particularly Cirocco who have conducted its case on the basis of the existing pleading. It is implicit in her Honour’s reasons that she accepted the evidence set out in the draft affidavit of Cirocco’s solicitor, Nicholas Anderson.[16] The affidavit identified the prejudice as forensic decisions about:
·the case based on Mrs Clarke’s pleading;
·whether to cross-examine Mrs Clarke and Dr Clarke concerning the unpleaded case upon which her counsel opened;
·cross-examination of Mrs Clarke on her responses to a notice to admit served on her by Cirocco’s solicitors which reflected the terms of the existing pleading; and
·the evidentiary foundation of an estoppel case based on that pleading.
[15] Cirocco Constructions Pty Ltd v Clarke & Ors (District Court of South Australia, Judge Thomas, 18 July 2022), [13].
[16] Ibid [13].
There is no error in the judge exercising her discretion to refuse the application to amend on the basis of her finding about the existence of prejudice which was a product not only of the nature of the amended pleading sought but of the timing of the application. The application was brought after Mrs Clarke and Dr Clarke had given their evidence and Mrs Clarke had been cross-examined on her pleaded case. If the amendment had been allowed Cirocco would have wanted to cross-examine on the amended pleading. Cirocco submits that, in those circumstances, it would be prejudiced because its forensic processes have already been disclosed to Mrs Clarke. She would know what is coming and what to expect. I accept this submission.
It may be that if the amendment had been granted it would not have resulted in any change to the scope or effect of the evidence. To some degree that is speculative at this stage. However, assuming that would have been so, that was merely a factor that had to be weighed along with the other relevant circumstances. It does not vitiate the judge’s exercise of the discretion.
In my view, in the circumstances of this case, the decision to reject the application to amend was not manifestly unreasonable. The decision was open to the judge. No proper basis has been established to justify this Court’s intervention in the exercise of the judge’s discretion.
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.