Goodrich v Kilmore Racing Club Inc
[2023] VSCA 37
•3 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0017 |
| KATE GOODRICH | Applicant |
| v | |
| KILMORE RACING CLUB INCORPORATED | First Respondent |
| RACING VICTORIA LIMITED | Second Respondent |
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| JUDGES: | EMERTON P and KENNEDY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 March 2023 |
| DATE OF JUDGMENT: | 3 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 37 |
| JUDGMENT APPEALED FROM: | [2022] VSC 803 (McDonald J) |
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PRACTICE AND PROCEDURE – Application to amend further amended statement of claim – Where proceeding issued in August 2019 – Where pleadings subject of significant litigation – Where proceeding ready for trial listing – New claim of alleged failures in relation to bullying by unspecified persons from 2009 – Significant prejudice to defendants – No satisfactory explanation for delay – Application refused – No error – Leave to appeal refused – House v The King (1936) 55 CLR 499.
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| Counsel | |||
| Applicant: | Mr DJ Williams KC with Ms G Angelowitsch | ||
| First Respondent: | Mr A Anderson | ||
| Second Respondent: | Mr MJ Hooper | ||
Solicitors | |||
| Applicant: | Tohme Lawyers | ||
| First Respondent: | Coulter Legal | ||
| Second Respondent: | Minter Ellison | ||
EMERTON P
KENNEDY JA:
The applicant seeks leave to appeal the decision of a judge dismissing her application for leave to file and serve a proposed further further amended statement of claim (‘PFFASOC’).
The applicant commenced training horses out of the Kilmore Racing Club (‘KRC’) in around 2007. On 2 August 2019, she filed a writ and statement of claim alleging breach of contract by KRC in relation to interim suspensions of her licence to train horses at KRC in late 2013, as well as breach of statutory duty by Racing Victoria (‘RV’). She claimed loss and damage which included damages for ‘stress-related injury’, as well as economic loss.
On 9 December 2022, the applicant produced the PFFASOC, which adds a new claim that she was subject to bullying at KRC between late 2009 and 2013 ‘by other trainers’. She alleged that she had suffered a significant psychological injury as defined in pt VBA of the Wrongs Act 1958.
The judge heard the application on 15 December 2022. It was not in dispute that, if leave to amend was not granted, the matter was otherwise ready to be listed for trial before the judge in the week of 24 April 2023. This could not happen if leave was granted to file and serve the PFFASOC.
In his ruling and accompanying reasons dated 21 December 2022, the judge refused to grant leave to file the PFFASOC, and set a timetable for interlocutory steps to facilitate the commencement of the trial in the week commencing 24 April 2023.
On 1 March 2023, we refused leave to appeal the judge’s decision. The reasons for that order follow.
Summary of proceedings
On 2 August 2019, the applicant filed a writ and statement of claim alleging breach of contract by KRC in relation to interim suspensions of the applicant’s licence to train at KRC on 4 August 2013 and 16 October 2013. She also claimed that RV had breached its ‘duty’ in three relevant ways[1] by: the conduct of RV stewards at a mediation conducted following the first suspension of the applicant’s licence by KRC (the ‘mediation claim’[2]); its failure to take steps to finalise an independent third party investigation report into the dispute between the applicant and KRC (the ‘investigation claim’[3]); the suspension of the applicant’s trainer’s licence on 13 December 2016 following the laying of a charge against her for refusing to allow two stewards to conduct a race day stable inspection (the ‘RV suspension claim’[4]). This charge was subsequently the subject of separate litigation, including before VCAT, and this Court.[5]
[1]RV obtained summary judgment in respect of a further ‘medical report claim’ as described by McDonald J in his ruling of 25 November 2021: see Goodrich v Kilmore Racing Club Inc [2021] VSC 767, [5], [85(1)].
[2]See Statement of Claim (2 August 2019) [16]–[30].
[3]Ibid [31]–[36].
[4]Ibid [39]–[48].
[5]See Goodrich v Racing Victoria Racing Appeals and Disciplinary Board No 1 (Review and Regulation) [2017] VCAT 1842; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board & Racing Victoria No 2 (Review and Regulation) [2018] VCAT 405; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2020] VSCA 110.
On 13 December 2019, the applicant filed an amended statement of claim which, among other things, introduced a new claim that the suspensions constituted unlawful restraint of trade and also alleged breach of contract by RV in respect of the three matters identified above.
From 20 March 2020, there was extensive litigation in respect of the amended statement of claim. This included applications to strike out parts of the claim, as well as an application for summary judgment (by RV).
In the result, it was not until 8 February 2022 that leave was granted for the applicant to file a further amended statement of claim dated 4 January 2022. This pleading included a claim for damages arising from the position adopted by RV in the VCAT proceedings in relation to the charge (which had been dismissed by this Court).
On 7 September 2022, the applicant filed a notice of change of solicitor.
On 11 October 2022, the applicant’s solicitor served correspondence on the respondents seeking a waiver of the significant injury requirements under the Wrongs Act. The correspondence alleged that KRC ‘perpetrated the bullying of the [applicant]’ and that RV ‘facilitated and engaged in the bullying’ and did not take adequate action to end it. However, the respondents declined the requested waiver and sought the provision of an assessment of the degree of impairment under the Wrongs Act.
At a directions hearing on 18 November 2022, the judge told the parties that he planned to set the matter down for trial in early 2023. However, the applicant’s solicitor indicated that he wished to bring a claim under the Wrongs Act and put forward proposed orders for the filing of the PFFASOC. He also later served a report of Dr Justin Lewis (consultant psychiatrist) which concluded that, diagnostically, the applicant ‘presented with a Major Depressive [disorder]’.
Nature of amendments
As well as introducing claims in negligence, the PFFASOC seeks to introduce a new claim arising from the alleged bullying of the applicant by other trainers at KRC.
The new claim is inserted at para 12B and reads:
Bullying at KRC Facilities
12B. Between late 2009 and 2013, the plaintiff was subjected to bullying, harassment and intimidation by other trainers operating out of KRC’s facilities.
With the exception of one trainer, the ‘other trainers’ are not named, nor is the precise number of trainers identified.
At paras 12C and 12D the applicant alleges that she reported her concerns to KRC and RV, respectively.
The applicant then alleges that in failing to investigate, intervene and reprimand and/or sanction ‘any of the other trainers’:
•KRC was negligent and/or in breach of the KRC contract (para 12F); and
•RV was negligent and/or in breach of the good faith obligation and/or in breach of statutory duty and/or in breach of contract (paras 12G and 12H).
The applicant also alleges that, by reason of the wrongful conduct of KRC and/or RV, she has suffered a chronic adjustment disorder with mixed anxiety and depressed mood, as well as distress and trauma, and says that she has suffered a significant injury as defined in pt VBA of the Wrongs Act for which she claims general damages (paras 50 and 51).
Judge’s ruling
The judge set out the procedural history, nature of the proposed amendments, and the principles governing the amendment of pleadings enunciated by this Court in Billington v Sussan Corporation Australia Pty Ltd[6] and Northern Health v Kuipers[7].
[6][2020] VSCA 12 (‘Billington’).
[7][2015] VSCA 172 (‘Northern Health’).
He observed that, in the absence of the applicant being granted leave to amend, the proceeding was ready to be set down for trial in the week commencing 24 April 2023, but if leave to amend was granted, ‘there is no prospect of the trial commencing in the first half of next year [2023]. Further, there is a real prospect that the trial will not be listed for hearing at all in 2023’.[8]
[8]Goodrich v Kilmore Racing Club Inc & Anor (Leave to Amend Ruling) [2022] VSC 803, [5] (‘Reasons’).
The judge recorded that the proposed amendments were ‘substantial’, and that the claim for damages arising out of alleged bullying of the applicant by other trainers at KRC was ‘an entirely new claim’. Further, the allegation of bullying did not actually identify the alleged perpetrators of the bullying, so that it would be necessary for the applicant to provide particulars, and for the respondents to then obtain evidence from the alleged perpetrators. The judge found that, as those individuals would be addressing alleged conduct which occurred between 2009 and 2013, ‘[t]here is a real prospect that those individuals would have little, if any, recollection of the alleged bullying’.[9] Given there had been no need for the respondents to previously gather any evidence in relation to the bullying, the significant passage of time placed the respondents in a position of ‘real prejudice’ in responding to the applicant’s allegations.[10]
[9]Ibid [6].
[10]Ibid [7].
The judge recorded that the applicant sought to allege that she sustained a major depressive disorder as a consequence of being bullied by other trainers at KRC, noting the report of Dr Justin Lewis. The judge noted that the respondents have a right to refer the question of whether the applicant has suffered a significant injury to a Medical Panel, and that counsel for the applicant conceded that if there was such a referral there would be a likely delay of six months before the Panel delivered its reasons.[11]
[11]Ibid [8].
The judge stated that, notwithstanding that the applicant had earlier alleged that she sustained loss and damage by reason of a ‘stress-related injury’, it was only very recently that the applicant had taken steps to obtain serious injury certification which would permit her to claim general damages. No explanation for this delay had been given and no satisfactory explanation had been provided as to why the applicant had not previously made a claim for damages based on the alleged bullying. The only explanation provided was that the applicant’s solicitor was retained in early September 2022 and he had formed the opinion that the pleading needed to be amended to include a claim pursuant to the Wrongs Act based on alleged bullying. The judge said:
This did not constitute an adequate explanation for the delay in proposing amendments which fundamentally alter the factual and legal basis of the claims which the defendants would have to respond to.[12]
[12]Ibid [9].
The judge noted that the application for leave to amend was not made on the eve of the trial, but that it was made in circumstances where the proceeding had been on foot since August 2019 and where there had been significant contested litigation in respect of the amended statement of claim filed on 13 December 2019. The judge found that the inevitable consequence of granting the application for leave to amend was that the trial would not be able to proceed in late April 2023.[13]
[13]Ibid [10].
The judge held that the interests of justice would not be served if there was any further delay in setting down the trial of this proceeding. The judge noted that the applicant’s claim as presently pleaded would require the Court to determine disputed factual matters which include the applicant’s suspension as a trainer in 2013, and observed that any further delay in setting the proceeding down for trial ‘pose[d] a significant risk that the capacity of witnesses to recall events which occurred nearly 10 years ago [would] be compromised’.[14]
[14]Ibid [11].
The judge reiterated reliance on the principles set out in Northern Health and considered that these principles strongly supported the rejection of the application since:
(a)there would be a substantial delay if the application was granted;
(b)there was a real risk of an irreparable element of unfair prejudice caused by the amendment, as the respondents would need to gather evidence from an as yet unidentified group of trainers alleged to have bullied the applicant between 2009 and 2013, in respect of allegations that could have been made more than three years ago. Any additional delay in setting the proceeding down for trial also posed a real risk of prejudice to the respondents’ capacity to defend the allegations in the current version of the statement of claim;
(c)case management considerations weighed against granting the application. The judge recorded that he had had responsibility for case management of the proceeding for some time[15] and that, if the application was not granted, the trial could proceed before him in the week commencing 24 April 2023. However due to other trial commitments already listed for the second half of 2023, the judge had limited capacity to hear a 10 day trial after 30 June 2023. He stated: ‘If the application for leave to amend is granted, there is a significant risk that the trial will not be able to proceed until after February 2024’; and
(d)no satisfactory explanation had been given for the applicant seeking the amendment more than three years after the commencement of the proceeding.[16]
[15]Since delivering judgment on an appeal from a summary judgment order in November 2021.
[16]Reasons, [12].
The judge concluded:
The overarching purpose of the Civil Procedure Act is the just, efficient, timely and cost-effective resolution of the real issues in dispute. Listing the proceeding for trial at the earliest opportunity is consistent with this overarching purpose. On the other hand, the inevitable and significant delay in listing the trial for hearing if the application for leave to amend is granted, is not consistent with this overarching purpose. In reaching this conclusion, I am mindful of the fact that the plaintiff has recently obtained a medical report of Dr Lewis which is consistent with the plaintiff having a major depressive disorder as a consequence of having been bullied. However, the weight to be attributed to this report must be balanced against: a) the significant prejudice to the defendants if the application is granted; and b) the absence of any satisfactory explanation for the delay in seeking the amendments pleaded in the PFFASOC.[17]
[17]Ibid [13].
Proposed grounds of appeal
The applicant sought leave to appeal on the following proposed grounds:
(1)The learned trial judge failed to take into account the substantial prejudice that would be sustained by the applicant if the amendment application were rejected.
(2)The learned trial judge erred by giving substantial weight to his own unavailability to hear the trial.
(3)The learned trial judge erred in assessing the delay that would arise from the proposed amendment.
(4)The learned trial judge erred by speculating as to the prejudice that could be sustained by the respondents as a result of the amendment.
(5)The orders made by the learned trial judge are so unreasonable or plainly unjust that it is to be inferred that in some way there has been a failure properly to exercise the discretion, in accordance with the principles enunciated in House v The King.[18]
[18](1936) 55 CLR 499; [1936] HCA 40.
Relevant principles
In Billington, this Court helpfully summarised the relevant principles as follows:
The decision by the primary judge, to refuse the application for leave to amend the statement of claim, constituted an exercise of her Honour’s judicial discretion. In order to succeed, the applicant must demonstrate a material error by the judge in the exercise of that discretion.[19] The decision of the judge essentially concerned a matter of practice and procedure. In such a case, this Court is required to exercise particular circumspection in reviewing such a decision. Ordinarily, in order to set aside a decision on a matter of practice and procedure, the appellate court must be satisfied, not only that there was material error by the judge in the exercise of the discretion, but, additionally, that the applicant will suffer substantial injustice if the decision is permitted to stand.[20]
In determining the application by the applicant for leave to amend the statement of claim, the judge was required to take into account the objects specified by s 9(1) of the Civil Procedure Act. Further, in Aon Risk Services Australia Pty Ltd v Australian National University,[21] the High Court considered the principles that are relevant to an application for leave to amend a pleading. In that case, the Court made it clear that, in determining such an application, among other matters, a court is required to take into account principles of proper case management, where there has been substantial delay and wasted costs pertaining to the application.[22]
[19]Ibid 504–5 (Dixon, Evatt and McTiernan JJ).
[20]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176–7 (Gibbs CJ, Aickin, Wilson and Brennan JJ); [1981] HCA 39 (citations omitted).
[21](2009) 239 CLR 175; [2009] HCA 27 (‘Aon’).
[22]Billington [2020] VSCA 12, [24]–[25] (Beach, Kaye JJA and Croucher AJA).
The applicant accepted that, in order to overturn the exercise of the judge’s discretion, we needed to be satisfied that there was a material error in accordance with the principles in House v The King. Further that, as a result of that error, the applicant would suffer substantial injustice if the decision is allowed to stand.
Proposed ground 1 — applicant’s prejudice
The applicant submitted that at no point in the judge’s reasons did he make reference to the significant prejudice that would be suffered if the applicant was prohibited from bringing a substantive claim which, prima facie, appeared to have an arguable basis. The only reference the judge made to the applicant’s prejudice was a reference to the recent medical examination of psychiatrist Dr Justin Lewis (at para 13). The applicant submitted that, ‘beyond the weight to be attributed to Dr Lewis’ report, there is nothing in the reasons indicating a consideration of the impact that rejecting the applicant’s application will have’.
The applicant also submitted that the judge failed to recognise that a refusal to enable a real question between the parties to be determined was at least equally inconsistent with the overarching purpose. If the applicant was not permitted to bring her proposed claim under the Wrongs Act as part of this proceeding, then she may have an entitlement to issue separate proceedings (subject to any Anshun[23] estoppel that the respondents may seek to invoke). However, additional proceedings would clearly be undesirable.
[23]Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45.
The applicant submitted that it was not suggested by the judge that the claims brought by the applicant were baseless, or had no prospects of success, and that the failure to consider or articulate the substantial prejudice that would be suffered by the applicant constituted a material error by the judge.
In oral submissions, the applicant emphasised that the judge had not identified the key prejudice, which was that the applicant lost an opportunity to run a potentially successful claim and obtain general damages.
Analysis
The judge was clearly alive to the nature of the amendments sought given he carefully described the allegations made in the PFFASOC (at para 3) and analysed the new ‘substantial’ claim (at para 6). It was self-evident that the applicant would forego her claims (at least as part of this proceeding) if the amendments were not permitted and that, in itself, constituted prejudice.
In any event, it is important to identify the way the applicant’s prejudice was defined before the judge. Thus, at the hearing, counsel for the applicant sought to address the question of the applicant’s prejudice as follows:
Both of my learned friends have raised the concern in relation to the very real prejudice to the defendant, and Your Honour has also obviously raised a concern in relation to the general prejudice, particularly with the passage of time, and we don't seek to excuse the time in which the proposed amendments have been brought. What we would say though is that consideration also needs to be given to the very real prejudice that would be inflicted on the plaintiff if she is prevented from bringing a claim, which prima facie she has an entitlement to bring. We have a report from Justin Lewis who provides her with a significant injury certificate, and that on its face entitles her to make that application. We would suggest that is a factor that should be considered when considering whether the amendments should be allowed.
Hence, the applicant defined the prejudice she would suffer by reference to the report of Dr Lewis, and suggested that this raised a prima facie case that she had suffered a significant injury, consistent with the claims in the PFFASOC.
The judge clearly took into account the applicant’s claim that she had sustained a major depressive disorder in reliance on the report of Dr Lewis. He expressly referred to the report (at para 8). He also made express reference to the content of the report in the critical para 13 at the end of his Reasons where he said that he was ‘mindful of the fact’ that the applicant had recently obtained a report from Dr Lewis which was ‘consistent’ with her having a major depressive disorder as a consequence of being bullied. He further clearly considered that the report supported the applicant’s claim that she had suffered a psychological injury as a result of the conduct of the respondents, but considered that the ‘weight to be attributed to this report’ needed to be balanced ‘against’ the significant prejudice to the respondents caused by delay and absence of any satisfactory explanation for the delay.
The judge thereby clearly had regard to the prejudice to the applicant in being denied the opportunity to bring a further arguable claim in the proceeding, but weighed it against other factors. The question of weight was a matter for the judge and there is no ‘failure’ to take the applicant’s prejudice into account.
Proposed grounds 2 and 3 — judge’s availability and delay
The applicant submitted that the judge erred by ascribing substantial weight to his own availability to hear the trial. The applicant submitted that there was no order of the Court or requirement by the parties that the trial in the matter must be heard before the judge who had case managed the proceeding to date. There was also no indication that the judge had made any inquiries regarding alternative judicial availability, nor any indication that no other trial judges were available to hear the matter in the second half of 2023. The applicant submitted that the judge therefore erred in concluding that his own unavailability for a date other than April 2023 was an ‘insurmountable hurdle’ for the parties.
In oral submissions, senior counsel submitted that the judge’s own availability should not have been given such weight as to exclude wider availability. His contention was that the judge wrongly failed to inquire into and/or consider whether another judge could hear the trial.
The applicant submitted that the judge also erred in making a presumption about the length of the adjournment that would be required if the proposed amendments were allowed. The applicant cited the concession made by counsel for the applicant at the hearing that there would likely be a delay of six months before the Medical Panel delivered its reasons. However, she submitted that the prospect that the respondents may refer her to the Medical Panel did not prevent the interlocutory timetable continuing to operate as usual during this time, as an adverse result would only limit the remedy. Accordingly, if there was an alternative trial judge available to hear the matter, the trial of the matter could proceed as early as June 2023, a mere two months after the trial date proposed by the judge.
The applicant submitted that the judge correctly noted that the application for leave to amend was not made ‘on the eve of the trial’.[24] This position could be contrasted with the factual matrix in Billington, where leave to amend was sought 12 days prior to the commencement of the trial, and Aon, where leave was sought on day one of a four week trial. In fact, the respondents had been on notice of the prospect of this type of claim since October 2022, when the matter had not yet been listed for trial.
[24]Reasons, [10].
In oral submissions, senior counsel submitted that the judge misapprehended the length of delay because he failed to appreciate that the various interlocutory steps could occur in parallel with the referral to the Medical Panel.
Analysis
The giving of ‘substantial weight’ to a matter such as judge availability cannot constitute material error in the case of a discretionary interlocutory decision such as the present. For this reason alone, ground 2 is unsustainable.
In any event, it was perfectly proper for the judge to give weight to his availability in circumstances where he had case managed a matter, in accordance with the overarching purpose.
Furthermore, we do not accept that the judge treated his own unavailability as an ‘insurmountable hurdle’ to the grant of leave to amend. The judge expressly took into account a number of other important factors (including the absence of an explanation for delay). He also made an assessment that there was ‘significant risk’ that the trial could not proceed until after February 2024, rather than coming to any final view.
The applicant also did not establish any error on the basis that the judge ‘failed’ to inquire into the availability of other judges. First, there is simply no evidence about any inquiries the judge did or did not make. Secondly, we do not accept there is any obligation on a judge who has case managed a matter to refer the matter to a different judge. This is particularly so where the applicant did not even raise the possibility that another judge might conduct the trial of the proceeding.
In any event, the applicant did not demonstrate material error even if there was some ‘failure’ as alleged. The applicant adduced no evidence to suggest that any other judge was available to hear the matter (with an expanded time estimate)[25] earlier than February 2024. Given the substantial nature of the amendments, extensive further interlocutory steps were required which also made it less likely that the case would be ready on that date. Counsel for the applicant fairly accepted that the necessary steps would include provision of further particulars, further discovery, a Medical Panel hearing, a potential judicial review application of the Panel’s decision, as well as an application under s 23A of the Limitations of Actions Act 1958. Even if (as the applicant suggested) such interlocutory steps could be taken in ‘parallel’ with the reference to the Panel, there would clearly be a ‘risk’ that the trial would not be able to proceed until after February 2024, as the judge assessed, particularly having regard to the history of this litigation.
[25]Senior counsel for the applicant provided an updated estimate of 15 days. Counsel for the first respondent suggested an estimate of 20 days.
For essentially the same reasons, the judge made no error in assessing the delay that the amendments would cause to the hearing of the proceeding. He expressly recorded the delay of six months before the Panel would deliver reasons.[26] However, as explained above, the likely delay was dependent on judicial availability, as well as the timing of multiple other interlocutory steps necessitated by the substantial amendment. These factors clearly raised a ‘risk’ that the trial could not proceed until after February 2024 in circumstances where the judge was in the best position to make this assessment of risk.
[26]Reasons, [8].
Neither ground 2 nor ground 3 is sustainable.
Proposed ground 4 — ‘speculation’ re prejudice to respondents
The applicant submitted that the judge attached ‘substantial weight’ to the ‘real risk of an irreparable element of unfair prejudice caused by the amendment’ and that, by attaching substantial weight to the presumption of prejudice in the absence of any evidence or submission of actual prejudice likely to be sustained by either respondent, the judge committed a material error.
In oral submissions the applicant suggested that the amount of prejudice due to delay had been overstated since delay should be measured by reference to the additional delay from the date the proceeding was instituted (August 2019), not by reference to the date of the alleged conduct (from 2009).
Analysis
We do not accept that the judge ‘speculated’ about the respondents’ prejudice. Rather, he carefully examined the nature of the proposed amendments which contained allegations against an unknown number of trainers that allegedly took place between 10 and 14 years ago. Although counsel suggested that the applicant might not have to show that the bullying actually occurred (given the allegation was directed at the failure to act in response to the reports of bullying), he accepted that the applicant would seek to prove that the bullying occurred, consistently with para 12B of the PFFASOC.
The complaint that the judge gave ‘substantial weight’ to the respondents’ prejudice cannot constitute material error as already explained. In any event, the judge’s findings as to prejudice to the respondents were well open. It is true, as counsel suggested, that in this case, unlike Billington, there was no suggestion that the trainers could not be identified. However, the amendments would still necessitate the taking of further statements and investigation of events that took place many years ago. It is not to the point that the allegations might have been made only a few years earlier, as a delay of three years is significant. In the light of the fallibility of human recollection,[27] it was open for the judge to find that there was a real prospect that those individual trainers would have ‘little, if any’, recollection of the alleged bullying such that there was a ‘risk’ of irreparable prejudice. There was also a further risk of prejudice to the respondents in defending allegations in the current version of the pleading given the effluxion of time.
[27]See Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; 234–7 [72]–[87] (Bell P); [2019] NSWCA 102.
Ultimately, it was for the judge to make an assessment of, and attribute appropriate weight to, the risk of prejudice to the respondents. His ultimate finding that there would be significant prejudice to the respondents if the application was granted is well open and ground 4 is without merit.
Proposed ground 5 — otherwise unreasonable or plainly unjust
The applicant highlighted the following passage from House v The King:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[28]
[28](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
The applicant submitted that, by reason of the significant prejudice that would be sustained if she was prohibited from bringing a substantive claim, and notwithstanding that this might occasion a relatively ‘short delay’ in the trial of the proceeding, there was only one outcome which was both reasonable and just.
In oral submissions counsel submitted that the application to amend was refused in circumstances where the matter was not actually fixed for trial. This was said to make the decision an ‘outlier’.
Analysis
There is no merit in this ground.
It cannot be suggested that the case is an ‘outlier’ simply because the matter had not been formally listed for trial. The matter was clearly ready, and able, to be listed for an imminent trial date if leave to amend was not granted. We also do not accept that there would only be a ‘short delay’ by reason of the amendment.
The applicant is correct in pointing to the fact that she would suffer prejudice if leave was not granted. Nevertheless, the judge was entitled to weigh a number of factors against this prejudice, which included:
•there was no suggestion that the applicant was unable to raise her claims earlier, including when the proceeding was instituted. The PFFASOC alleges that she made reports about her allegations from 2010;
•the applicant proffered no explanation for delaying the substantive enlargement of her claim, other than her change of practitioner. This is not an adequate explanation;[29]
•the prejudice to the respondents was significant in circumstances where events the subject of the existing proceeding occurred in 2013, and where the proposed amendments related to even earlier years, dating back to 2009;
•case management principles clearly supported the finalisation of the proceeding which had been issued some three years earlier; where there had already been significant contested litigation; and where there was a risk of significant further delay if leave was granted.
[29]See Billington [2020] VSCA 12, [40] (Beach, Kaye JJA and Croucher AJA).
In all these circumstances the judge’s decision was not ‘plainly unjust or unreasonable’. Rather, we consider that it was well open in the exercise of the judge’s discretion.
Conclusion
For the reasons given, we refused leave to appeal.
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