Hilliard v Westpac Banking Corporation Pty Ltd
[2008] VSCA 73
•2 May 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 2127 of 2000
| ROY CHARLES HILLIARD | |
| Appellant | |
| v | |
| WESTPAC BANKING CORPORATION P/L | Respondent |
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APPLICATION ON SUMMONS
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JUDGE: | MAXWELL P |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2 May 2008 |
| DATE OF REASONS AND DIRECTIONS: MEDIUM NEUTRAL CITATION: | 2 May 2008 [2008] VSCA 73 |
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PRACTICE AND PROCEDURE – Appeal – Grounds of appeal – Leave to amend – Whether new ground raises point not raised at trial – Whether late raising of point denies respondent fair opportunity to prepare – Leave to amend granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Masel | Rudstein Kron Lawyers |
| For the Respondent | Mr R D Strong | Mallesons Stephen Jaques |
MAXWELL P:
This is an application by the appellant (‘Hilliard’) for leave to amend further his notice of appeal. A draft of the proposed further amended notice of appeal has been provided, and Mr Hilliard submits that this is a proper case for the grant of leave to amend, in the interests of justice.
The respondent (‘Westpac’) opposes the grant of leave. The essential ground of opposition relies on the well-established proposition that a point not raised at the trial may not be raised on appeal if by any possibility the raising of the point at trial might have prompted the other party to lead evidence or cross-examine differently or in some other way conduct the trial differently.
The proposed ground is in these terms:
The learned trial Judge erred in finding that, upon the facts as found, the respondent was entitled to judgment against the appellant, as any unjust enrichment of the appellant by reason of the payment of the cheques was not at the expense of the respondent.
In a restitutionary claim of this kind – that is, claiming unjust enrichment by reason of mistake – the plaintiff must show first that the defendant has been unjustly enriched and, secondly, that the enrichment was at the plaintiff's expense. So much was acknowledged by counsel for Westpac in their final submission to the trial judge, which stated:
(e)if and to the extent that the resolution of the foregoing issues identifies cheques which were paid by Westpac under a causative mistake, the consequential issues are:
(i)whether Mr Hilliard is the person who was thereby unjustly enriched;
(ii)whether and to what extent Westpac is the person who has suffered the countervailing detriment.
In my opinion leave to amend should be granted. As I said recently in relation to a pleading amendment:[1]
There is a powerful presumption in favour of permitting pleading amendments. That presumption is founded on basic principles of justice: since the function of courts is to decide the matters in controversy between parties, a party to litigation should be able to advance – and, to that end, plead – each claim or defence which it wishes to maintain. These are principles of long standing,[2] and they were emphatically reaffirmed by the High Court in Queensland v JL Holdings Pty Ltd:[3] “Justice is the paramount consideration …”[4]
…
Leave to amend may be refused if the amendment is obviously futile, as where it does not disclose a cause of action or defence.[5] But an amendment should be refused only where futility is clearly demonstrated or irremediable prejudice clearly established. Given the importance of having before the court “the true issues and the real merits, factual and legal”,[6] refusal of an amendment should be – and be seen to be – exceptional.
[1]Panasonic Australia Pty Ltd v Broadtel Communications Pty Ltd [2007] VSC 273 [3], [5].
[2]See, for example, Cropper v Smith (1884) 26 Ch D 700; Clough and Rogers v Frog (1974) 48 ALJR 481.
[3](1997) 189 CLR 146, 154-5 (Dawson, Gaudron and McHugh JJ).
[4]Ibid 155.
[5]See Gimson v Victorian WorkCover Authority [1995] 1 VR 209, 215-6 (McDonald J) and the authorities there cited.
[6]Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 169 (Kirby J) citing Commonwealth v Verwayen (1990) 170 CLR 394, 456 (Dawson J).
The same principles apply here. There is no consideration which rebuts the presumption in favour of leave to amend. In particular, I am not persuaded that Westpac’s argument about this being a new point on appeal is nearly clear enough to require refusal of leave at this point.
The grant of leave to amend does not, of course, prevent Westpac from arguing on the appeal that the new ground of appeal should be rejected on exactly that basis. If that objection is to be developed more fully, it should be developed before the bench hearing the appeal. There is no issue estoppel.
On what I have heard so far, I find it difficult to see how this is a new point on appeal. It has been properly conceded by Mr Strong for Westpac that it was necessary for his client to prove that the enrichment had been at its expense; that the pleading of its case – that Westpac had become liable to the account holders and had suffered loss as a result – was denied; and that there was at no time in the proceeding a concession by Mr Hilliard in respect of either of those matters.
As noted earlier, Westpac accepted in final submissions that an issue in the trial was ‘whether and to what extent Westpac is the person who has suffered the countervailing detriment’. On ordinary principles Westpac bore the burden of establishing that fact. The new ground of appeal contends that Westpac failed to lead evidence sufficient to do so.
It is said that the particular argument now raised – about whether Westpac actually bore the loss – was not articulated in those terms at the trial. That appears to be conceded by counsel for Mr Hilliard. But the transcript of the trial clearly shows that there was contest about the conduct of Westpac in settling with the account holders, and repeated reference by senior counsel for Mr Hilliard to the fact that no evidence had been called by Westpac in relation to its settlement of the account holders’ claims. So it seems to me at the moment - again it can be revisited on the appeal - that this issue of Westpac having borne the expense was a live one at the trial, in respect of which Westpac bore the onus. I do not need to decide that finally. It is sufficient to say that the argument does not stand in the way of a grant of leave to amend at this stage.
Concerns had been expressed in correspondence about whether the late raising of this new ground of appeal – there being only a little over a week to go before the hearing of the appeal – would unfairly prejudice Westpac’s preparation. That would be a matter which would bear directly on whether or not the appeal should go ahead on the scheduled day. Mr Strong for Westpac did not contend that, if leave to amend were given, his client would be denied a fair opportunity to prepare to meet this new ground of appeal. He did, however, indicate that there might be some delay in the filing of submissions. That is a matter we can deal with by way of directions.
Likewise there is the question of any elongation of the hearing. Mr Strong has indicated that there will be a submission on Westpac's behalf that the evidence led at trial did establish that Westpac had borne the expense of the unjust enrichment. That will doubtless require some reference to the evidence. We will be reliant on detailed references to transcript being in the written submissions. As is the practice of this Court these days, we will be reluctant to spend much time reading slabs of transcript in the course of the hearing, given the expense for the parties in having their full legal teams here for that purpose.
The directions I make are as follows:
1. The appellant file and serve by 4.15 pm today, 2 May 2008, the further amended notice of appeal.
2. The appellant file and serve by 4.15 pm on Monday, 5 May 2008, any revision of his supplementary appeal submission.
3. The respondent file and serve by 1.00 pm on Friday, 9 May 2008, its submission in response to the appellant's supplementary appeal submission.
I note in ‘Other Matters’ that in each case the submissions on this new ground should, as the earlier submissions do, identify relevant transcript references. I also note that counsel for the respondent has indicated that his client will provide to the appellant and to the Court, by Tuesday, a folder of additional documents on which the respondent may wish to rely in relation to this new ground.
In my opinion the appellant should pay the respondent's costs of this hearing. Had the only question been whether this was a new point on appeal, I might have taken a different view, but since the application is made so close to the hearing date for the appeal, it was in my opinion necessary to hear from the parties about the feasibility of dealing with the matter if leave were granted. That was a critical issue in deciding, not so much whether to grant leave to amend but whether the appeal hearing should be vacated.
In the event, that has been resolved. That could not have been satisfactorily dealt with in advance, it seems to me. Had this application been made in a more timely manner, then that question would simply not have arisen. The debate could have been confined to whether Westpac had raised any objection sufficient to require refusal of leave to amend.
In those circumstances I order that the appellant pay the respondent's costs of the application.
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