Henderson, R.F. v Amadio Pty Ltd

[1995] FCA 583

CATCHWORDS

PRACTICE AND PROCEDURE - appeal from interlocutory decision of trial judge on a matter of practice and procedure - amendment of pleadings at a late stage - whether amendments merely raise new ground for relief on same facts - principles applicable to appellate review - discretion of trial Judge - complexity and length of proceedings. 

Bank of New Zealand v Spedley Securities Ltd (in liq.) (1992) 27 NSWLR (NSWCA) 91

Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170

Dare v Pulham (1982) 148 ALR 658

De Mestre v A.D. Hunter Pty Ltd (1952) 77 W.N. (NSW) 143

House v R (1936) 55 CLR 499

In re the Will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318

Lovell v Lovell (1950) 81 CLR 513

Mace v Murray (1955) 92 CLR 370

Neimann v Electronic Industries Ltd [1978] VR 431

.

RUSSELL FRASER HENDERSON  

v. AMADIO PTY LIMITED & ORS

No VG 260 of 1993

Davies, Tamberlin & Sackville JJ.

16 June 1995

Melbourne

IN THE FEDERAL COURT OF AUSTRALIA   ) 

)  

VICTORIAN DISTRICT REGISTRY   )  No VG 260 of 1993

)     

GENERAL DIVISION   )     

BETWEEN:                 RUSSELL FRASER HENDERSON  

Applicant

AND:   AMADIO PTY LIMITED & ORS

Respondent

Coram:Davies, Tamberlin & Sackville JJ.

Date:                16 June 1995

Place:               Melbourne

REASONS FOR JUDGMENT

In this matter leave to appeal is sought in relation to an order made by the trial Judge, Heerey J, refusing leave to amend the pleadings of Amadio Pty Limited and Hudson Conway Limited.  The Court has heard the application for leave to appeal and has also heard what counsel wish to say on the appeal should leave be granted. 

In approaching the matter, the Court must apply the principles which were enunciated by the High Court of Australia in Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 176-177. The majority judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in that case enunciated the approach to be taken by an appellate court in reviewing an order of a discretionary nature. Their Honours referred to the well known authorities in House v R (1936) 55 CLR 499, Lovell v Lovell (1950)

81 CLR 513 and Mace v Murray (1955) 92 CLR 370. Their Honours went on to say, however, that there was a further element to be taken into account when the order under appeal is an interlocutory order going to a matter of practice and procedure - and in this present case it is to be remembered that a ruling on an amendment of the pleadings is a matter of such a nature. Their Honours said at 177:

"Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure ... Not only must there be an error of principle, but the decision appealed from must work a substantial injustice to one of the parties."

Their Honours then referred to the cases of Neimann v Electronic Industries Ltd [1978] VR 431 at 440 and De Mestre v A.D. Hunter Pty Ltd (1952) 77 W.N. (NSW) 143 at 146 and said:

"For ourselves we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.  The circumstances of different cases are infinitely various."

Their Honours went on to repeat with approval the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318 at 323, which I need not set out.

That necessarily is the approach that the Court must take.  Ordinarily pleadings are a matter entirely for the trial judge.  It is rare for a matter to be of substantive importance where what is sought to be relied upon is simply a ground of law arising from the proved facts of the case.  Pleadings have a certain function in a trial.  Ordinarily they define the issues between the parties.  But, if at the end of a trial it is found that one party or another has an entitlement to relief on the facts as found, then ordinarily the Court will grant that relief whether or not the relief is actually sought in the pleadings. 
That also occurs from time to time in appeals when a ground of liability which is applicable to the proven facts has been established but not pleaded.  An example of that was Dare v Pulham (1982) 148 ALR 658.

When we approach the matter in that way, it seems to me that there is a distinction between the matters which are sought to be raised.  Some amendments seem to me to raise merely another ground on which counsel for Amadio and Hudson Conway wishes to argue for relief, and to do so without raising new facts or new inferences but simply to put the case on another basis.  Those are the matters set out in the cross-claim at paragraphs 61-63, 64-66 and paragraph 67.  It seems to me that all those matters simply wish to raise another ground on which relief is sought without adding in any way to the evidence that will be required or having effect of delaying the trial in any significant way.  It seems to me that it would be unjust to Amadio and Hudson Conway not to allow those amendments and I would therefore grant leave to appeal and allow the appeal in respect of those paragraphs.

One of these matters was raised as to the firm of Metzke and Allan and it is referred to in paragraph 61 of the cross-claim.  There is no allegation against that firm by the applicants, the claim having been discontinued as against Metzke and Allan.  It does appear, however, that Metzke and Allan are included in other cross-claims on similar grounds.  I therefore think that the claims sought to be made against them should be permitted.

I then go to paragraphs 56A, 56B, 56D, 56E, 56F and 56G which seek to raise the claim referred to as the Morgan power of attorney representations.  In substance what
is sought to be claimed by Amadio relates to the Morgans' claim alleging that an accountant, Mr Geoffrey Henderson of BPM, had been instructed by the Morgans that they were not to assume any personal liability.  Notwithstanding that, Mr Henderson took a part in the execution of powers of attorney by the Morgans and failed to advise the Morgans that the powers of attorney were executed by them in their own right and that, as a consequence, the powers would be exercised so as to impose personal liability on the Morgans.  That claim sought is brought in association with paragraph 59A, which makes a claim against BPM, a firm of which Mr Henderson is a partner.  It seems to me that this claim by Amadio should also be allowed.  Amadio seeks to rely on an allegation which is already made by the Morgans as against Mr Henderson.  No further evidence will be required and Amadio simply wishes to put the case that, if those allegations are proved, Amadio will have suffered loss.

Counsel also sought to join the Morgans themselves as persons against whom the claims were made.  It seems to me, however, that the Morgans are making allegations against other persons.  They make no allegations against themselves and it would not be proper to allow the amendment of paragraph 59A so as to include the Morgans.  I accept the view of the trial judge who excluded the Morgans from that paragraph that to include the Morgans in that claim would not be likely to provide efficient justice in the circumstances of this complex case.

The next matters that were raised go from paragraphs 68 of the cross‑claim through to 74.  The trial judge refused this amendment for two reasons.  First, he considered that the case was already a long, complicated and expensive case.  He thought it would not be just to the parties to allow an additional amendment.  He also expressed
a tentative view that the amendment would not achieve success for Amadio and Hudson Conway, if allowed.

I do not wish to go into the merits of the matter but I can see the point made by the trial Judge.  It seems to me that this amendment could cause some confusion at the trial.  It is not clear precisely what the ramifications of the amendment are or how it would operate in the vast variety of circumstances that might come up.  I would therefore accept his Honour's view that it was not proper to allow the amendment at this stage when the trial is already well under way.

It should be noted that the basic allegations made are all matters which must have been known to Amadio when these proceedings were commenced.  The basic allegations which are alleged in paragraph 68 of the amendment, are all matters which would have been known to Amadio and Hudson Conway.  It is now 1995, more than two years since the commencement of the proceedings and at a time when the trial has gone on for some time.  It seems to me that if a claim for misleading and deceptive conduct had really stood out, it was a claim that could have been made early in the proceedings.

Another difficulty with the amendment is that, having commenced with certain facts, it goes on to allege from those facts a number of inferred or implied representations.  The trial Judge thought the results flowing from the amendment were not clear and that the amendment should not be allowed.  It would, in my opinion, be wrong to interfere at this stage.  The trial Judge knows a great deal more about this case than does this appellate Court and he was in the best position to judge whether the amendment ought to have been allowed.

I would refuse leave to amend those paragraphs.  What I have said about the paragraphs to which I have just referred also picks up the equivalent paragraphs in the defence and for those reasons I would allow the appeal to the extent I have stated.

TAMBERLIN J:   I agree with the conclusions which have been reached by his Honour, the presiding judge.

SACKVILLE J:   I also agree with the reasons that have been given by the learned presiding judge.  We were referred in the course of argument to comments made by Kirby P, in Bank of New Zealand v Spedley Securities Ltd (in liq.) (1992) 27 NSWLR (NSWCA), 91 at 95.  In that case, his Honour said that there were special reasons to exercise restraint in interfering with the judgment of a trial judge on an interlocutory matter.  His Honour pointed out that, in that particular case, the litigation between the parties was self-evidently most complex and therefore that the desirability of a measure of judicial case management was self-evident.

As the presiding judge has pointed out, this application was made after the trial had been proceeding for a considerable period.  Indeed, the trial judge indicated that his ruling was given on the 40th day of the trial.  His Honour, the trial judge, also expressed the view that the case was extraordinarily complicated.  The case appeared to him to be manageable, but only just.  He was accordingly anxious to restrict the further proliferation of issues, both of fact and law.  In relation to the paragraphs of the cross-claim to which the presiding judge has referred, it is, in my opinion clear, that the trial judge has directed his attention to matters to which he is best placed to make an assessment.

This Court ought to exercise restraint before it seeks to interfere with a determination made by the trial judge in circumstances where, to allow the appeal, would in the opinion of the trial judge create considerable difficulties in the management of the trial.  This is one of the matters that, in my opinion, weighs heavily in the determination not to allow the appeal with respect to the paragraphs that have been identified in the cross-claim and the equivalent paragraphs in the defence.  It is for those reasons that I join in the judgment of the presiding judge in this matter.

I certify that this and the 6 preceding pages are a true copy of the reasons for judgment herein of the Court.

Associate:

Date:  16 June 1995

Counsel for Amadio Pty Ltd

and Hudson Conway Ltd: N.Young QC    K. Hargrave                

Solicitors for Amadio Pty Ltd

and Hudson Conway Ltd:    Corrs Chambers Westgarth

Counsel for the 1st to 39th Applicants:    E.N Magee QC

R.H Smith

I. Percy

Solicitors for the 1st to 39th Applicants:    A.P Kelly & Associates

Counsel for State Government Insurance Office

of Western Australia:    G.Uren QC

C.M Caleo

Solicitors for State Government

Insurance Office of Western Australia:    Phillips Fox

Counsel for Metzke & Allan:    M.R Shatin QC

M.Robins

Solicitors for Metzke & Allan:    Maddock Lonie & Chisolm

Counsel for Huntley McArdle Glass Pty Ltd

and Robert H.Glass:    A. Chernov QC

   J.D Elliott

Solicitors for Huntley McArdle Glass Pty Ltd

and Robert H.Glass:    Lander & Rogers

Counsel for Nevett Ford:    P. Cawthorn

Solicitors for Nevett Ford:    Middletons Moore Bevans

Counsel for Richard Ellis Victoria Pty Ltd:                     P. Vickery

Solicitors for Richard Ellis Victoria Pty Ltd:                   Minters Morris Fletcher

Counsel for BPM Pty Ltd,

Bird Camoran and others:    J.Fagenbaum QC

D.Clark

Solicitors for BPM Pty Ltd,

Bird Camoran and others:    Barker Gosling

Counsel for Morgans:    R.Kendall

Solicitor for Morgans:    David Johnson

Date of hearing:    15-16 June 1995

Date of judgment:    16 June 1995