F J & P N Curran Pty Ltd v Almond Investors Land Pty Ltd (No 3)

[2018] VCC 724

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-16-00543

F J & P N CURRAN PTY LTD	Plaintiff
v
ALMOND INVESTORS LAND PTY LTD	Defendant

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JUDGE:HIS HONOUR JUDGE COSGRAVE

WHERE HELD:  Melbourne

DATE OF HEARING:  15, 16, 17, 20 and 21 November 2017

DATE OF JUDGMENT:                  25 May 2018

CASE MAY BE CITED AS:             F J & P N Curran Pty Ltd v Almond Investors Land Pty Ltd (No 3)

MEDIUM NEUTRAL CITATION:      [2018] VCC 724

RULING (NO 2)
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Subject:PRACTICE AND PROCEDURE

Catchwords:          PRACTICE AND PROCEDURE – amendment of pleadings – application to amend made during closing submissions – amendment includes claim for collateral warranty – whether application constitutes re-agitation of issue already decided

Cases Cited:Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355; Shaw v Gadens Lawyers (2014) VSCA 74; Smith v NSW Bar Association (1992) 176 CLR 256; Spotlight Pty Ltd v NCON Australia Ltd (2012) 26 VR 1; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Arthur	Cahills Solicitors
For the Defendant	Dr E Peden	Clear Lawyers

HIS HONOUR:

1       On the final day of the trial on 21 November 2017, during the course of final submissions and after the defendant had completed its submissions, counsel for Curran sought to amend paragraph 7 of the existing amended statement of claim to include a claim for a collateral warranty by amending paragraph 7 to read as follows:

7.Subsequently by email dated 30 April 2010, AIL represented, and in consideration thereof warranted, to Curran that it wished to extend the Call Option Period under the Option Agreement for a further five years, that is until 15 June, 2015, on existing terms, including the existing crop compensation arrangements as requested by Curran (“the representation”).

PARTICULARS

The representation is in writing.

It was made by email dated 30 April, 2010 from Vanessa Overall, head of Legal & Corporate Governance of AIL Funds Management for and on behalf of AIL, to Frank Curran on behalf of Curran. A copy of the said email may be inspected at the offices of the Plaintiff’s solicitors by prior arrangement.

The existing crop compensation arrangements as requested by Curran were to the effect as alleged in sub-paragraphs 6A(c) and (d) hereof.

2       Curran gave no notice of the application to AIL and simply made the application during the course of final address.  Curran contended that the proposed amendment was simply the addition of five words and constituted no more than a different legal consequence arising from the same facts.  Curran appeared to believe that because this claim was raised in a version of the statement of claim created in January 2017 (which the plaintiff subsequently elected not to pursue), it was reasonable to spring this application upon AIL on the basis that the issue had been agitated at an earlier time.

3       AIL opposed the application, commenting that it effectively amounted to a re-agitation of an aspect of the amendment application which the court had refused earlier during the trial.  AIL noted that its final submissions had been prepared on the basis that the court’s prior ruling dealt with the amendment application and, hence, there was no collateral contract claim to be addressed.  Counsel sought some further time to submit additional material on this issue.

4       In a short written submission filed soon after completion of the trial, AIL drew attention to Curran’s failure to:

·    give it any notice of the application;

·    provide an affidavit in support of the application;

·    explain the basis of the application or what material change had occurred since the previous amendment application a few days earlier; and

·    explain why the application was being made so late in the proceeding.

5       AIL also made reference to the decision of Shaw v Gadens Lawyers,[1] and argued that res judicata and issue estoppel were relevant – the court had ruled only a few days earlier that the collateral contract claim could not be raised and it was not appropriate for Curran to repeat the same application.

[1](2014) VSCA 74 at [59].

6       In addition, AIL referred to Aon[2] and the factors which the court could properly take into account and submitted that, in the circumstances, those factors weighed against allowing the amendment.

[2]Aon Risk ServicesAustralia Ltd v Australian National University (2009) 258 ALR 14.

7       In short, AIL contended that:

·    the trial would be delayed, presumably because AIL would seek time to consider the impact of the amendment and possibly call more evidence itself and/or seek to further cross-examine Frank Curran;

·    more costs would be incurred due to recalling witnesses; and

·    the defendant would probably need to re-open its case.

8       In my opinion, the plaintiff’s application to amend should be refused.  Curran made the same application earlier in the trial and failed.  Curran did not identify any significant change which had occurred in the intervening period and which would warrant a different decision in respect of the second application.  The reasons for rejecting the earlier application apply also to the present application.

9       I note that the manner in which Curran made the application was unsatisfactory. The court has well established rules which are designed to regulate procedural matters including the making of amendment applications.  Courts expect parties to abide by the usual procedural rules.  They are designed with a view to ensuring a consistent and coherent system for dealing with applications.  Where parties and their legal representatives ignore the court’s rules, it tends to create expense, delay and needless aggravation for other litigants.  In the present case, one would have expected to receive a detailed affidavit dealing with those factual matters relevant to such an amendment application.

Curran’s application to re-open

10      On 20 November 2017, during the course of final submissions and after the defendant had completed its final submissions, Curran applied to re-open its case to tender an email.  The email dated 29 August 2011 was from Frank Curran to Vanessa Overall (“the email”) and read as follows (so far as material):

“Further to the crop compensation issue, it is somewhat unfortunate that Graham Johns is away on leave.

In April 2010 when Graham came over to discuss and ask us to extend the Option Agreement, he assured me that the crop compensation, on land not allready (sic) planted out to almonds on CA 2, would continue.  I am sure that Graham would be able to verify this when he returns from leave.”

11      Counsel submitted that the email was an important piece of evidence: it was relevant; it answered a question which I had raised during the trial and responded to the defendant’s suggestion that the misrepresentation case was a late invention by Curran. 

12      Dr Peden made some oral submissions in opposition.  But I gave her leave to file later some further written submissions on the issue given that she was faced with another oral application by the plaintiff made without notice and without any affidavit material. 

13      Mr Arthur for the plaintiff filed a written outline supporting his application.  It argued that the email became relevant when the court invited the plaintiff to amend its statement of claim to plead the oral representations made by Johns about which Frank Curran had given evidence.  This was because it was said to corroborate the Johns representations alleged in paragraph 6A of the amended statement of claim.  It was also said to be relevant to the defendant’s assertion that the plaintiff’s solicitor did not raise this aspect of the misrepresentation issue in correspondence prior to the proceeding.  Curran submitted that the plaintiff should be permitted to tender the email because it would not prejudice the defendant.  The email was included in the discovery and if it were not tendered, the court would remain unaware of the true position between the parties.

14      Curran referred also to Halsbury’s Laws of Australia in relation to the principles to be taken into account when considering whether to exercise the discretion to allow a party to re-open its case.  The commentary noted:[3]

[3]LexisNexis, Halsbury’s Laws of Australia at [195-8160].

“Considerations

The discretion to re-open may be exercised:

(1)   to overcome a technical defect in the evidence;

(2)   where there has been inadvertence by counsel;

(3)   where the issue to which the evidence relates is material although not clearly raised in the pleadings;

(4)   where the defendant bears the onus on an issue;

(5)   where a defence is raised for the first time in addresses; and

(6)   where a party is led to believe that a particular witness would be called was not called.

It is relevant to consider whether such evidence if credible and accepted would affect the result of the trial. Where the application is made after the conclusion of the trial, it is usually necessary to show that the evidence is material, that it would probably affect the result of the trial and the evidence could not with reasonable diligence have been discovered before.

The discretion to re-open a case may not be exercised:

(1)   where the purpose is merely to fortify evidence by calling a witness who might easily have been made available;

(2)   if due diligence had been shown; or

(3)   where counsel has deliberately elected not to previously tender the evidence.”

15      AIL filed submissions contesting the application.  It correctly said that Curran was seeking to tender in evidence a document which was created by Frank Curran, had been available to the plaintiff at all relevant times, and was included in the court book.  The submission referred to Smith v NSW Bar Association,[4] where the court said that if an application is made to re-open on the basis that new or additional evidence is available, it is relevant to enquire why the evidence was not called during the hearing.  If there were a deliberate decision not to call the evidence, that would often tell decisively against the application.  However, assuming that hurdle is overcome, different considerations can apply depending on whether the case is one where the hearing is complete or one where reasons for judgment have been delivered.

[4](1992) 176 CLR 256, 266-7.

16      AIL addressed the discretionary factors referred to in Halsbury and observed that: there was no technical defect in the evidence; there was no evidence of inadvertence by counsel; the issue was raised on the pleadings; the defendant did not bear the onus of proof; and there was no witness involved.  Further, AIL contended that the evidence was not “fresh” because it had always been available but it had not been shown that it was material to the case.  In connection with this latter submission, AIL argued that the email did not assist Curran because the alleged assurance by Johns referred to in the email was consistent with the case run by each party.  Also, Curran did not adduce any evidence of following the matter up with Johns regarding the assurance.  The inference said to flow from this was either there was no challenge to Johns, or Curran and Johns agreed that Johns’ version of events was correct.

17      The Victorian Court of Appeal in Ezra Abrahams Pty Ltd v Milburn[5] recently discussed the issue of re-opening a party’s case. The court referred to the overriding principle of whether, taken as a whole, the justice of the case favoured the grant of leave to re-open.[6]  The court said that there were four recognised categories of case in which a court could grant leave to re-open, namely, where:

[5][2017] VSCA 355

[6][2017] VSCA 355 at [46] referring to Spotlight Pty Ltd v NCON Australia Ltd (2012) 26 VR 1 at [26].

·    fresh evidence, unavailable or not reasonably discoverable previously, becomes known and available;

·    there has been inadvertent error;

·    there has been a mistaken apprehension of the facts; or

·    there has been a mistaken apprehension of the law.

18      The judgment also referred to the decision of the New South Wales Court of Appeal in Urban Transport Authority of NSW v Nweiser.[7]  In that case, the court distinguished between three different scenarios in which counsel for a party failed to call evidence.  The first was where the failure was not intentional but accidental or inadvertent.  The second was where the failure to call evidence was deliberate but based upon a factual or legal misapprehension.  The third was where the omission was deliberate but intended to produce a tactical advantage or benefit for the client.

[7](1992) 28 NSWLR 471.

19      Clarke JA (with whom Mahoney and Meagher JJA agreed) noted that where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel, a court will usually be disinclined to grant any application to re-open.  However, even in those circumstances the court retains a discretion to permit re-opening where the interests of justice so require.  In deciding where the interests of justice lie, it is relevant to take account of matters including the likely prejudice to the party opposing the application and the reasons why the evidence was not led in the first place.  There is no fixed rule requiring a court to reject an application to re-open where the decision not to call evidence was deliberate.  However, this fact remains a relevant consideration.

20      In the present case, for reasons which were not obvious and not explained, Curran led no evidence in support of its application.  In particular, it did not explain why the email was not adduced during the plaintiff’s evidence and before the defendant completed its case.  Given the absence of evidence, it is difficult to know whether the omission was the result of a mistake by Curran’s lawyers or a tactical decision.  Thus, one cannot know for certain whether it was an unintentional mistake, an intentional mistake based upon a mistaken appreciation of fact or law, or an intentional decision designed to achieve a tactical benefit for Curran.  The way Curran ran the trial and its submissions, combined with the plaintiff’s obviously erroneous submission that the email became relevant only after the plaintiff amended its claim to include the Johns representation, lead me to think that the failure was due to inadvertence.  It seems to me most likely that the lawyers either overlooked the document or failed to appreciate how it might possibly be used to support the plaintiff’s case.

21      I accept that if the evidence could not affect the outcome or is too peripheral to the main issues, a court can properly refuse leave to re-open.  It might well be different if the evidence could lead to a different result and especially if the failure to call the evidence at the appropriate time is due to inadvertence or an error. 

22      The matter is finely balanced.  On the one hand, the evidence was always available and was physically in the court book; there was no direct evidence that the email was omitted by inadvertence or error.  On the other hand, if the plaintiff’s lawyers were diligent, they should have included it.  The defendant referred to the email on the same page and probably read, and was aware of, the email in question.  On balance, I consider that the interests of justice are best served by allowing Curran to re-open its case for the purpose of tendering the email.

23      AIL indicated in its submissions that if the email were allowed in evidence, it sought to tender the letter from the plaintiff’s solicitors to the defendant’s then solicitors (McMahon Clarke Legal) dated 15 February 2012.  There was also a suggestion that AIL might wish to further cross-examine Curran.

24      I sought a response from the parties about the consequences of allowing Curran to rely upon the email.  Curran indicated that, if it were given leave to re-open and tender the email, it had no objection to AIL tendering in response the letter from Curran’s solicitors to AIL’s former solicitors dated 15 February 2012 (“the letter”).  Curran did not seek any further opportunity to adduce further evidence or submissions.  For its part, AIL advised that if Curran were allowed to rely upon the email and it was permitted to tender the letter, then it did not seek to adduce any further evidence or make additional submissions (save on the issue of costs).

Conclusion

25      For the reasons set out I order that:

(a)      the plaintiff’s application to further amend paragraph 7 of its amended statement of claim is dismissed.

(b)      the plaintiff has leave to re-open its case to tender the email dated 29 August 2011 from Frank Curran to Vanessa Overall.

(c)       the defendant has leave to re-open its case to tender the letter from Curran’s solicitors to AIL’s former solicitors dated 15 February 2012.