Elliott v Elliott Enterprises and Ors No. Scgrg-96-2124 Judgment No. S6841

[1998] SASC 6841

ELLIOTT v ELLIOTT ENTERPRISES PTY LTD AND ORS
[1998] SASC 6841

Miscellaneous Appeal
Bleby J

1. This is an appeal against the decision of a master refusing leave to the first, second and fourth defendants to bring an application for further and better discovery and for leave to amend their defence. 

2. Leave to bring the application was refused on 30 June 1998.  The plaintiff did not seek to be heard on the appeal, and did not consent to or oppose the proposed amendment to the defence. 

3. The master held an evaluation conference on 26 March 1998.  In adjourning the matter on that day to a pre-trial conference to be held on 30 June 1998, the master said:

   “The parties have had a conference with counsel and solicitors with a view to settlement, but it has been unsuccessful.  I will encourage them to attend the [pre-trial conference], but I will formally dispense with that requirement.  There are matters of discovery and amendment to be attended to prior to the pre-trial conference.  I will allow 4 weeks for these to be resolved but if a dispute remains the appropriate applications should be made promptly at the expiration of the four week period.  The application should be set down in the chamber list and, if the pre-trial conference date becomes unworkable, a request should be made to vacate same on the first return of any application which is made.”

4. The master thus made clear his understanding that there were outstanding matters of amendment and discovery, and that he expected that these would be attended to within four weeks of the date of the case evaluation conference.  If they could not be resolved by the parties, application was to be made promptly at the expiration of that four week period.  I take that to mean at least before the end of April.  He contemplated the possibility that it might be necessary to vacate the date for the pre‑trial conference.

5. Nothing happened until the first, second and fourth defendants filed an application on 30 June 1998, the day of the pre-trial conference, for leave to amend the defence to plead s.35 of the Limitation of Actions Act 1936 and for an order that the plaintiff make further and better discovery of a number of listed categories of document.

6. The defendants relied, in an affidavit of their solicitor in support of the application, on advice given to the plaintiff’s solicitors on 12 February 1998 that they intended to amend the defence to plead the statute, and on a request dated 9 February 1998 for the further and better discovery of documents.  I am not impressed by those acts of self-righteousness, when it was made quite clear by the master on 26 March that such matters not being attended to for the previous one and a half months were to be attended to within the next four weeks, with ample time to resolve any differences before the listed pre-trial conference.  There was simply no excuse for not complying with the master’s directions. 

7. The master said, on 30 June 1998, in refusing leave to bring the application: 

   “Mr Swanson [who, incidentally, was for the defendants] has quite candidly informed me that he did not take any steps in relation to either of these applications in the four weeks after the last attendance on 25.3.98.   Whilst I accept that his clients are not to blame for the delays which have occurred, the frequency of adjournments of pre-trial conferences because of such delays has reached alarming rates to the extent that it is not uncommon, on a given day, when pre-trial conferences are set for hearing between 10 am  and 4.30 pm, that two-thirds (and sometimes greater proportions) of the matters listed that day, do not proceed as a pre-trial conference because the parties are not ready for same, the lack of preparedness being due to inappropriate delays on the part of the legal advisors, or clients, or both.  Given that the court endeavours to set reasonable time limits and to allow for genuinely unforeseen circumstances, and has done so since the inception of the current case flow management procedures, I do not consider that a proper basis for leave to issue these applications [is] established by the first, second and fourth defendants.  In particular, I find that there will not be irremedial (sic) prejudice to those defendants in that the amendment raises a point of law, and the proposed further and better discovery might, potentially, be sorted out between the plaintiff and those defendants without any further delays being experienced as a result of the court having to deal with those applications.  In other words, it is in the hands of the parties who have failed to comply with the requirements set on the last occasion to avoid prejudice by not being able to pursue any application for further and better discovery as a result of my refusal to grant leave.”

8. The master then adjourned the pre-trial conference to a date to be fixed in November “after return of the second defendant from overseas”.  From that, I infer that there were other reasons for adjourning the pre-trial conference as well. 

9. Whilst the master had every reason to express his concern at what had happened - a justifiable concern which I share in every respect; there was simply no excuse for the dilatoriness on the part of the defendants and their solicitors - I am also concerned that the master may, in the end, have proceeded on a wrong principle.  He referred to the proposed amendment as a point of law not causing irremediable prejudice to the defendants if leave were refused to bring the application.  In my opinion, that represents a misunderstanding of the law. 

10. This court confirmed, in Robinson v Craven (1994) 63 SASR 267, that not only did the Limitation of Actions Act in its present form bar the remedy and not the right, but that failure to plead the limitation point by the defendant constituted a waiver of the immunity conferred by the statute. Therefore, contrary to the expressed views of the master, the defendants will be prejudiced if they are denied the right to plead s35 of the Limitation of Actions Act.  In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Dawson, Gaudron and McHugh JJ observed, at 154:

    “Case management is not an end in itself.  It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice, and no principle of case management can be allowed to supplant that aim.” 

11. As the refusal of the proposed amendment would have denied the defendants the defence which they considered they properly had, it was wrong to rely on the principles of case management to refuse leave to bring the application, particularly as the application was unlikely, in itself, to cause delay in the hearing of the case, and when the pre-trial conference was to be further adjourned for another reason in any event. 

12. I, therefore, propose to allow the appeal and grant leave to bring the application in so far as it relates to the amendment of the defence, and I indicate that I will further grant leave to amend in the terms sought.  But in so deciding I should not be taken to be condoning in any respect the appalling dilatoriness on the part of the defendants and their solicitors.  That can, and will, be accommodated by an appropriate order for costs. 

13. So far as the application for further and better discovery is concerned, I refer again to what the master said in refusing the application.  That refusal does not give rise to irremediable prejudice to the defendants, for reasons given by the master.  It was within his discretion to refuse the application, as he did, indeed, a similar application by the plaintiff. 

14. Consolidated Gold Mining Areas NL & Ors v Enterprise Gold Mines NL (Receiver and Manager Appointed) & Anor (1992) 57 SASR 584 was an appeal from the decision of the Supreme Court judge not to allow the plaintiffs in the principal action to amend their points of claim.

15. In the course of his judgment, at 587, the former Chief Justice said:

    “The principles governing the determination of an appeal from a decision on a point of practice and procedure may be gathered from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 176 - 177. Such a decision is discretionary in character. The appellate court will interfere only if the judge has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, has mistaken the facts or failed to take into account some material consideration: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505. These principles apply to all discretionary judgments but appellate courts exercise even greater restraint in reviewing decisions on matters of practice and procedure. Whilst there are no rigid or exhaustive criteria for determining when an appellate court will interfere with such a decision, it will be relevant to ask, generally speaking, not only whether an error of the kind referred to in the House v The King has occurred but also whether it is accompanied by some injustice to the appellant.”

16. As to this part of the application, I would not be prepared to interfere with the exercise of the discretion by the master.  I consider that, in many respects, the defendants have brought this situation upon themselves.  If they complied with the master’s initial directions given in March of this year, (or, perhaps, more importantly, had the defendants been alive to the limitation point) this appeal might never have eventuated.  So I propose to dismiss that part of the appeal related to the further and better discovery. 

17. In my opinion, a party who, or a party whose solicitor, does not comply with the well-known case flow management principles, can expect to be penalised in costs, and that failure is a proper element to be brought into account in the exercise of the discretion on an award of costs, even where that party has been successful in obtaining an interlocutory order.  Failure to comply with those principles, and any directions given in fulfilment of them, causes or contributes to frustration of them by bringing late applications.  Even if those applications are successful, I consider it is within the proper exercise of the court’s discretion to refuse the costs of such application, and, where appropriate, to require the defaulting party to pay the opposing party’s costs.  Particularly is this so where the master’s directions were ignored, and where, in any event, the defendants should have been alive to the limitation point from the outset.

18. I propose, therefore, to order that the defendants pay the plaintiff’s costs of this appeal in any event - that may not amount to a great deal in the circumstances - and that the defendants pay the plaintiff’s costs of and incidental to the amendment. 

19. The formal orders of the court will, therefore, be: 

(1)... Appeal allowed;

1. Leave to the first, second and fourth defendants to bring their application to amend the defence dated 30 June 1998;

1. Leave to the first, second and fourth defendants to amend their defence as sought in the said application, such amendment to be made within two days of this order;

1. Leave to the plaintiff to file an amended reply within 14 days of today’s date;

1. In all other respects, the orders of the master made on 30 June 1998 confirmed;

1. Costs of this appeal to be the plaintiff’s costs to be paid by the first, second and fourth defendants in any event;

1. The plaintiff’s costs of and incidental to or occasioned by the amendment of the defence to be the plaintiff’s costs to be paid by the first, second and fourth defendants in any event.