Government Insurance Office of New South Wales v Ali File No. SCGRG 91/2988 Judgment No. 3659 Number of Pages 7 Inferior Courts (1992) 59 Sasr 124

[1992] SASC 3659

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(2), Olsson(1) and Mullighan(3) JJ.

CWDS
Inferior courts - South Australia - Local Courts - practice - appellant sought leave to amend defence at pre-trial conference - sought to allege respondent had not been wearing a seatbelt at the time of accident and had been contributorily negligent - appellant had medical reports suggesting this possibility for well over one year - appellant had amended defence on two previous occasions but each time had not then alleged a failure to wear a seatbelt - no exceptional and unforeseen circumstance established to justify leave being granted to amend defence - principles of caseflow management discussed - appeal dismissed.
Wrongs Act 1936 (SA) s35a(1)(i)
United Motors Retail Limited v Australian guarantee Corporation Limited
(1992) 163 LSJS 1, applied
Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377, discussed.

HRNG ADELAIDE, 4 September 1992 #DATE 16:10:1992
Counsel for appellant:        Mr G. Holland
Solicitors:                 Fisher Jeffries
Counsel for respondent:     Mr M. Blumberg
Solicitors:                 Andersons Barker Gosling

ORDER
Appeal dismissed.

JUDGE1 OLSSON J. This is an appeal against an interlocutory decision of the Senior Judge of the District Court, which has come before the Full Court pursuant to leave granted by Mohr J.on 17 January 1992. It requires consideration of circumstances governed by Rules of Court in force prior to the recent amendments which came into operation on 6 July 1992. 2. In July 1989 the respondent initiated proceedings against the appellant in the District Court. These claimed damages for personal injuries said to have been sustained in a motor vehicle accident which occurred on 7 August 1987. A defence was duly filed on behalf of the appellant. 3. The full pleadings in the action are not before the Full Court. However, it appears that, on 23 August 1991, by leave of a Master of the District Court, the respondent filed and delivered an updated statement of claim. This did not alter the pleadings related to the circumstances of the relevant accident. It merely updated particulars of personal injury, loss and damage sustained by the respondent. Damages were claimed up to the then full jurisdictional limit of the District Court. 4. The appellant's defence was amended on two occasions by leave. These amendments were respectively dated 23 November 1990 and 8 March 1991. 5. The effect of the defence, in its finally amended form, was, inter alia, to deny that the relevant accident was caused by a person insured by the appellant and to allege contributory negligence on the part of the respondent. The lastmentioned amendments followed, in point of time, a medical examination of the respondent by Mr G Jose, an orthopaedic surgeon nominated by the appellant. This occurred on 15 February 1990 and resulted in the preparation of a medical report dated the same day, which was duly transmitted to the solicitors for the appellant. It is common ground that they received that report shortly thereafter and then supplied a copy of it to the solicitors for the respondent. 6. Included in the case history recited in the report was the following statement:-
    "In the impact it appears he (the respondent) may not have
    been wearing a seatbelt." 7. In a report for the solicitors for the respondent prepared by Dr Kutlaca on 17 December 1990, the case history taken by him also contains a statement to this effect:-
    "It appears he was not wearing a seatbelt at the time ... " 8. It seems to be common ground that a copy of this latter medical report was duly supplied to the solicitors for the appellant not long after it was produced. It is not clear whether Dr Kutlaca was merely regurgitating what was in the Jose report (which had been sent to him), or whether he obtained his understanding from the respondent or some other source. 9. It follows then that, during 1990, the solicitors for the appellant had two separate and successive reminders that there could well be an issue as to whether the respondent was in fact wearing a seatbelt at the time of the relevant accident. 10. Despite the two amendments by the appellant of its defence, one of which was made after the Jose report and the other of which was made after the Kutlaca report, no issue was ever raised by the appellant in its pleadings as to contributory negligence based upon a non-wearing of the seatbelt, or any potential application of the provisions of section 35a(1)(i) of the Wrongs Act 1936 (SA). 11. In accordance with the normal procedures of the District Court, an appointment for the conduct of a pre-trial conference, as a prelude to the fixation of a date for trial, was fixed for the morning of 10 December 1991. 12. On 20 November 1991, presumably in anticipation of the holding of the pre-trial conference, the solicitors for the appellant sought counsel's opinion as to both liability and quantum. A written opinion was received on 4 December 1991. In it counsel, inter alia, recommended that application be made for leave to amend the defence to allege that, at the time of the accident, the respondent was not wearing a seatbelt. It was proposed that formal pleas be included so as to invoke the provisions of section 35a(1)(i) of the Wrongs Act. 13. There is, in my opinion, no doubt that, having regard to the reasoning in Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377, the advice of counsel was sound. The appellant will not be able to pursue any case based on an issue arising under section 35a of the Wrongs Act, or in contributory negligence related to a failure to wear a seatbelt, in absence of the proposed amendment. 14. The lastmentioned statutory provision merely erects a rule of law which is to be applied in certain types of factual situation. In accordance with long established procedural principles a party is not entitled to invoke such a provision unless that party both pleads the alleged pre-requisite factual circumstances giving rise to the operation of the statute and also the specific issue based on and arising from the section. It is stating the obvious to say that the fair and orderly conduct of litigation is based upon that fundamental conceptual approach; and that a non observance of it would plainly lead to potential unfairness to other parties and an inability to conduct trials in an efficient manner. It would negate the very purpose for which the system of pleading is established - to define in advance the true issues arising for consideration and determination. 15. In view of the then proximity to the pre-trial conference appointment it was decided by the solicitors for the appellant to make oral application at the conference for leave to amend as recommended by counsel. Due notice of that intention was given to the solicitor for the respondent. 16. The pre-trial conference was conducted by the Senior Judge (as he then was) on 10 December 1991. In the course of it counsel for the appellant made application for leave to amend in the manner advised. That application was opposed by counsel for the respondent on the merits. 17. In support of the application for leave counsel for the appellant submitted that, such were the injuries sustained by the respondent in the subject accident, a very considerable assessment of damages might well be made. It was said that, if the provisions of section 35a(1)(i) could successfully be invoked, a reduction in the damages which might be awarded to the respondent, if successful, would be very significant. It was contended that that situation amounted to exceptional circumstances justifying the allowing of the application. After hearing counsel the Senior Judge refused the application for leave to amend. He did not express detailed reasons for his decision. However, it is clear that his decision was based upon a conclusion that exceptional and unforeseen circumstances, as envisaged by Rule 89(2) of the Local Court Rules, had not been identified by the appellant. 18. The lastmentioned Rule is one of a number of Rules which, in their totality, establish the caseflow management system which has governed proceedings conducted in the District Court for some considerable time. Sub-rule (2) of Rule 3 of the Local Court Rules spelt out that system in detail, together with the rationale for it. 19. It is not overstating the situation to say that earlier experience within the District Court rendered it absolutely vital that the integrity of the caseflow management principles expressed in the Local Court Rules be maintained at all times to ensure that its high volume of work could be disposed of within an acceptable space of time; and on a footing which ensured that the limited judicial resources available would not only be applied in a manner which was efficient, but also so as to accord justice to all the litigants who came before it. 20. One of the critical features of the caseflow management system, as it stood at the relevant time, was that actions were required to be ready to proceed to trial not less than fourteen days prior to the prescribed pre-trial conference. To that end sub-rule (g) of Rule 3(2) read as follows:-
    "(g) Having regard to the matters hereinbefore referred to,
     it is intended and desired that in the absence of exceptional and
    unforeseen circumstances that parties to actions in local courts of
    full jurisdiction will in all respects be ready to proceed to trial
    not less than fourteen days prior to the pre-trial conference
    referred to in Rule 8(4) and that no further orders of an
    interlocutory nature or for an adjournment of the hearing of the
    action will be made after that time." 21. The concept articulated by the lastmentioned sub-rule was reflected in the provisions of sub-rule (2) of Rule 89. This further stipulated that:-
    "Unless exceptional and unforeseen circumstances shall be
    shown to have arisen, no order shall be made later than 14 days
    prior to the day fixed by the Clerk pursuant to Rule 8(4) for the
    pre-trial conference upon any application made in accordance with
    sub-rule (1) in respect of an action in the Full Jurisdiction Trial
    List." 22. Sub-rule (1) was the general provision related to the making of interlocutory orders in actions upon application by way of interlocutory summons. 23. On the hearing of the present appeal counsel for the appellant was totally unable to indicate any factual circumstance, related to the history of the proceedings, which could remotely be described as constituting "exceptional and unforeseen circumstances" within the meaning of Rule 89(2). He was constrained to concede that the situation which had arisen was solely due to some oversight on the part of the solicitors for the appellant; and that the potential factual issue giving rise to the desire to amend the defence had not only been apparent for the first time almost two years prior to the pre-trial conference, but that it had again been identified, for the second time, a full twelve months prior to the pre-trial conference. 24. As I perceive the situation, the main plea advanced on the present appeal was no more than one based upon the possible financial disadvantage which will arise, so far as the appellant is concerned, if the appeal is not allowed - rather than anything else. No explanation whatsoever has been given for the failure to amend the defence in a timely manner, other than neglect or oversight upon the part of the solicitors concerned. 25. It should be said that, in the course of debate, some attempt was made by counsel for the appellant to seek a degree of solace from the provisions of amended Rules of Court which came into force as of 6 July 1992. However, as was pointed out to him, the appeal falls to be determined by reference to the Rules of Court which were in force as at the date of the decision appealed against. The more recent provisions of the Rules are therefore irrelevant for present purposes. 26. I am, however, constrained to make the point that, even if this was not so, I fail to see how the current Rules would advance the case of the appellant to any significant degree. The present Rules maintain the essential elements of the system of caseflow management previously in force, save that the requirement now stipulated is that each case be ready to proceed to trial by the date of the pre-trial conference, rather than a point fourteen days prior to that time. This is a requirement presently in force in all courts of civil jurisdiction in this State. 27. It seems to me that, in the particular factual circumstances of the present case, an application of the nature now under consideration was virtually foredoomed to failure, having regard to the unequivocal provisions of Rule 89(2) and its potential to abort the normal caseflow management timeline and trial date by virtue of a probable consequential need for the respondent to consider his own pleadings and procure expert evidence in the manner described by counsel - with a view to meeting the appellant's case based upon contributory negligence and the provisions of section 35a(1)(i) of the Wrongs Act. 28. Despite two other amendments to the defence and the very considerable lapse of time, during which the appellant was expressly put on notice of the existence of the potential issue on no less than two occasions, the reality of the situation is that, both as at the date when the matter was before the Senior Judge and on the present appeal, the appellant has simply not been able to point to any facts or circumstances which could possibly be categorised as "exceptional and unforeseen". It follows that, having regard to the provisions of Rule 89(2) of the Local Court Rules, the stance adopted by the learned Senior Judge was the only one which could properly have been adopted. 29. In so saying I do not overlook the existence of the general discretion conferred by Rule 308 of the Local Court Rules to dispense with compliance with the Rules of Court, where the justice of the case indicates that it is appropriate so to do. 30. It seems to me that, in circumstances in which there is a clear breach of the rules related to caseflow management (and in particular Rule 3(2)(g)), it would be quite inappropriate to exercise the reserve discretion to dispense with compliance in other than the most compelling situations. 31. As to this it is unnecessary to do more than to advert to what fell from the Chief Justice in United Motors Retail Limited v Australian Guarantee Corporation Limited (1992) 163 LSJS 1. This also focused attention upon Rule 3(2)(g). 32. Having made the point that:-
    "It cannot be overemphasised that the capacity of courts to
    provide expeditious justice in the face of heavy workloads, depends
    upon the maximum utilisation of the court's resources. This can only
    be achieved by the orderly processing and disposal of cases in
    accordance with the now recognised principles of case flow
    management. Where a court has adopted those principles, it is
    perfectly entitled to insist that the parties proceed with
    interlocutory applications, pre-trial conferences and trial of the
    action, on the dates fixed for those purposes." 33. The learned Chief Justice then went on to comment:-
    "Where there is a late application to amend which, if granted,
     would necessitate postponement of the trial or there is an
    application for the postponement of the trial whether made at or
    shortly before trial, the case flow management principles adopted by
    the court as the basis of its procedures will be an important and
    often the dominant consideration in considering the application. It
    will always be necessary for the court, however, to take all factors
    into account." 34. His Honour further pointed out that the necessity for an amendment or postponement may sometimes arise from causes which involve no fault on the part of the applicant or its legal representatives. In such case the need to do justice to the party will ordinarily take precedence over policy considerations. Also, where it can truly be said that the necessity for a late amendment may result from circumstances which are genuinely "exceptional and unforeseen", the need to do justice to the party will ordinarily prevail. There will further be situations in which the impact of a refusal of an application on a party may be so severe, by way of contrast with the nature of the neglect or other conduct which has brought the situation about, that the court may find it necessary to subordinate policy considerations to the need to avoid such impact. 35. It is, of course, trite to say that procedural rules should be a servant and not a master in relation to the orderly conduct of litigation. That is the very rationale for the comments made by the learned Chief Justice in the United Motors Case, as above summarised. 36. However, the instant case is, in reality, the converse of the types of situation there adumbrated. 37. If the effect of the failure of the appellant's application, due to its own gross neglect, is that it may possibly be called upon to pay a greater sum in damages than would otherwise be the case, then it has brought such a situation on its own head. It is not being unrealistic to suggest that, if the Senior Judge had, in circumstances such as those before him, granted the application (particularly given the obvious potential for the amendment to abort the normal caseflow management timeline and thereby prejudice the respondent in the due processing of his claim) then the whole integrity of the caseflow management system could potentially be undermined. 38. It is extremely difficult to envisage how, if an application such as that of the appellant in the present case was acceded to, a large number of other equally unmeritorious applications could reasonably be refused. In such circumstances the orderly management of litigation could become well nigh impossible; and there would be a strong likelihood of a reversion to the prior inefficiency and near uncontrollable situation which had previously obtained - which the caseflow management concept has been designed to overcome. 39. Quite apart from the serious adverse effect which this would have upon the capacity to deploy scarce judicial resources effectively and efficiently, it would also inevitably result in injustice to others by reason of delay and inconvenience to the other litigants seeking the assistance of the court. 40. In my opinion there is no merit in the present appeal. I would unhesitatingly dismiss it.

JUDGE2 KING C.J. I concur.

JUDGE3 OLSSON J. I agree that the appeal should be dismissed. The circumstances giving rise to the application to amend the defence were neither exceptional nor unforeseen (R.89(2)) and could not have justified the exercize of the discretion to dispense with compliance with the Rules (R.308). The learned Judge was correct in refusing the application. 2. It is unnecessary, for present purposes, to consider in what circumstances a party should be permitted, at a late stage, to amend a pleading so as to ensure that justice is done. No such circumstances are here present.