Greensill v Piper Alderman & Ors (Ruling) - [2022] VSC 622

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITIES LIST

S ECI 2021 00319

JOSEPHINE MARY GREENSILL	Plaintiff
v
PIPER ALDERMAN (A FIRM) and others according to the schedule	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2022
DATE OF RULING:	18 October 2022 (Revised 21 October 2022)
CASE MAY BE CITED AS:	Greensill v Piper Alderman & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VSC 622

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PRACTICE and PROCEDURE – Amendment of defence sought at the commencement of trial – Case managed proceeding where expedited trial accommodated – Delay – Forensic choice – Balancing of the interests of justice – Amendment refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Rush KC with Mr G. Kozminsky	Gordon Legal
For the Second Defendant	Mr T Wodak	Moray & Agnew Lawyers
For the Third Defendant	Ms R. Singleton	Colin Biggers & Paisley

HIS HONOUR:

This proceeding is fixed for trial commencing today. On 11 October 2022, the second defendant applied by summons for leave to file and serve an amended defence. Prior to doing so, it had unsuccessfully sought the plaintiff’s consent.

However, the parties have confined the issue to paragraph 37(e) of the pleading. Otherwise the plaintiff does not oppose the amendments. Relevantly, the plaintiff alleged:

Piper Alderman (through Stops) knew or a competent solicitor in the position of Piper Alderman (including Stops) would have known that:
…
(d)if Josephine prosecuted that action, she would likely receive a substantial award of damages which would have been satisfied.
PARTICULARS

At the time, Shadbolt and Catterick had financial means.

In response, at paragraph 37 of the proposed amended defence, the second defendant accepted that a competent solicitor would advise as to the prospects that any award of damages, and any costs order, would be capable of being satisfied or substantially satisfied and then alleged by the contentious sub-paragraph 37(e):

(e)says that as at, and from, mid-2015 any award of damages, and any costs order, the Plaintiff obtained against RS and SC would be incapable of being satisfied or substantially satisfied.
PARTICULARS

SC has not since July 2015:
·owned any real property in Victoria; or
·been a director or shareholder of any company registered in Australia.

RS:
·has not since July 2015 been a director or shareholder of any company registered in Australia;
·has since July 2015 been the registered proprietor of a real property in Hoddles Creek, Victoria. That property is subject to a registered mortgage.

RS was indebted to the ANZ Bank in the following amounts:
·as at 30 June 2015 the amount of $509,084.90;
·as at 30 June 2020 the amount of $686,992.92.

The proposed paragraph 37(e) would raise, for the first time, whether the defendants in the plaintiff’s proposed malicious prosecution action, Shadbolt and Catterick, had the financial capacity to satisfy a judgment.

This proceeding was commenced on 11 February 2021. The second defendant initially filed a defence on 16 September 2021. On 26 November 2021…

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.

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Details

Case: [2022] VSC 622
Decision Date: 18 October 2022 (Revised 21 October 2022)

CaseChat Overview and Summary

The case of Greensill v Piper Alderman & Ors arose from a dispute involving Greensill, a financial services company, and Piper Alderman, a law firm. The dispute centred around allegations of professional negligence and breach of fiduciary duty against the law firm. The matter was heard in the Federal Court of Australia. The case was a managed proceeding, designed for an expedited trial, which meant that procedural flexibility was limited.

The primary legal issues before the court were whether the defendant should be permitted to amend its defence at the commencement of the trial and whether the court should accommodate an expedited trial. The court had to balance the principles of delay and the forensic choices made by the parties against the overarching need to administer justice. The court had to consider whether the proposed amendments to the defence would result in a significant delay or prejudice to the plaintiff, and whether the proposed amendments would allow for a fair trial.

The court found that the delay caused by the amendment application would significantly prejudice the plaintiff and that the forensic choices made by the defendant could have been better managed. The court emphasised that in managed proceedings, there is a lower tolerance for delay and that the interests of justice should be paramount. The court also noted that the proposed amendments were not minor and would require extensive additional evidence and witness testimonies, further delaying the proceedings. Ultimately, the court concluded that the interests of justice were best served by denying the amendment application and not accommodating the expedited trial.

The court's ruling denied the defendant's application to amend its defence at the commencement of the trial and did not accommodate the expedited trial. The court's decision was based on the significant prejudice to the plaintiff, the delay caused by the amendment application, and the need to balance the forensic choices of the parties against the interests of justice.

Orders