JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2020
DATE OF JUDGMENT:	1 December 2020
CASE MAY BE CITED AS:	Daldy v McLaughlin
MEDIUM NEUTRAL CITATION:	[2020] VSC 808

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PRACTICE AND PROCEDURE – Pleadings – Amendment to defence – Statute of limitations defence – Late application to amend – No real prejudice to the respondent identified – Case management and administration of justice – Magistrates’ Court General Civil Procedure Rules 2020 (Vic) O 36.01 – Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 174 – Principles to be applied in the exercise of discretion to amend pleadings – Sufficiency of reason for late application – Principles to be applied on appeal against exercise of discretion – House v The King (1936) 55 CLR 499 applied – Complete defence – Prejudice to appellant if amendment refused – Appeal allowed – Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Bevan	Tehan George and Co
For the Respondent	Mr P Cahill	Mr P Cahill

HER HONOUR:

Background

The respondent brought proceedings in the Benalla Magistrates’ Court seeking $34,600.35 for the hire of a trailer between October 2011 and June 2012, and other ancillary amounts. On the face of the pleading, the claim filed 3 December 2018 was out of time and statute-barred. The defence, as originally filed, omitted to raise this defence.

At the hearing of the claim, the learned Magistrate refused the application by the appellant to amend his Defence. This appeal is brought pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) against the decision of the Magistrate made on 4 June 2019 to refuse the application to amend the Defence which would have enabled the appellant to raise a statute of limitations defence in his pleading.

Order 36.01 of the Magistrates’ Court General Civil Procedure Rules 2020 provides a general power to grant leave to amend pleadings for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings. That power may be exercised at any stage of the proceeding.

The respondent had been provided with a copy of the proposed amended defence a few days prior to the hearing. The proposed amended defence sought to amend the defence in several respects, including by raising the limitation of actions defence. However, only the limitation of actions amendment was the key change pursued, the other substantive changes were not pressed before his Honour.

In oral submissions before the learned Magistrate, the respondent conceded that the amendment did not raise any new questions of fact that he would not be able to deal with on the day of the hearing and an adjournment of the hearing…

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 Daldy v McLaughlin

Details

AGLC: Daldy v McLaughlin [2020] VSC 808
Case: [2020] VSC 808
Decision Date: 1 December 2020

CaseChat Overview and Summary

In the matter of Daldy v McLaughlin, the dispute centred around the defendant's attempt to introduce a defence of statute of limitations after the expiration of the usual time limits. The case was heard in the Supreme Court of Victoria. The plaintiff, Daldy, argued that the defendant's application to amend the defence was untimely and prejudicial, while the defendant contended that the amendment was justified and would not prejudice the plaintiff.

The legal issues before the court involved the principles governing the amendment of pleadings, particularly in relation to the introduction of a defence of statute of limitations at a late stage. The court was required to consider the sufficiency of the reasons for the delay in filing the amendment, the potential prejudice to the plaintiff, and the overarching principles of case management and the administration of justice. Relevant legal authorities, including the House v The King decision and Billington v Sussan Corporation Australia Pty Ltd, were cited to elucidate the applicable legal standards.

The court found that the defendant's application to amend the defence was not sufficiently justified, and no real prejudice to the plaintiff was demonstrated. The court emphasised that while the principles in Aon Risk Services Pty Ltd v Australian National University provide a framework for the exercise of discretion in such matters, the defendant's reasons for the delay were inadequate. The court also highlighted that the defendant had a complete defence available to them at the outset, which further undermined the justification for the late amendment. The appeal was allowed, and the amendment was permitted, recognising the importance of ensuring that justice is administered fairly and efficiently.

The final orders of the court allowed the defendant's application to amend the defence, permitting the introduction of the statute of limitations defence. The court's decision underscored the necessity for parties to act promptly and with due diligence in the presentation of their cases, while also acknowledging the broader objectives of the legal system in achieving just outcomes.

Orders