Ibrahimi v Commonwealth of Australia (No 6)

[2016] NSWSC 1418

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahimi & Ors v Commonwealth of Australia (No 6) [2016] NSWSC 1418
Hearing dates:	5 October 2016
Date of orders:	05 October 2016
Decision date:	05 October 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [29]
Catchwords:	PRACTICE AND PROCEDURE – Amendment of pleadings – Delay – Prejudice to defendant – Where the shortcomings in pleadings giving rise to the application for amendment had been specifically drawn to the attention of plaintiffs’ solicitor – Application to amend the pleadings refused
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bishopsgate Insurance Australia Limited (in liq.) v Deloitte Haskins & Sells [1999] 3 VR 863
Category:	Procedural and other rulings
Parties:	Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant
Representation:	Counsel:    M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O’Meara and R Jedrzejczyk - Defendant   Solicitors: The People’s Solicitors - Plaintiffs Australian Government Solicitor - Defendant
File Number(s):	2013/377410
Publication restriction:	Nil

Judgment – EX TEMPORE (revised)

1. Earlier today I gave judgment in relation to the admissibility of evidence sought to be led in the plaintiffs’ case from Mr Paul Kimber.  I concluded that that the evidence was not relevant to any pleaded issue and I rejected it.  Immediately following that judgment senior counsel for the plaintiffs made an application to amend the pleadings, so as to plead those matters which would render the evidence of Mr Kimber relevant.  A proposed amended pleading is exhibit C on the application. The application is opposed by the defendant.

2. Previous statements of claim filed in the proceedings are exhibits A and B.  Exhibit D is a letter of 27 July 2016 from the solicitor for the defendant to the solicitors for the plaintiffs.  The content of that letter is a matter to which I will return in a moment. 

3. Senior counsel for the plaintiffs submitted that the failure to plead the matters to which the proposed evidence of Mr Kimber might be relevant had come about as the result of a ‘misconception’ on the part of those acting for the plaintiffs.  He submitted that the matters now sought to be pleaded formed an important part of the plaintiffs’ case and that in those circumstances the interests of justice weighed in favour of the application being granted.

4. Senior counsel for the defendant, in opposing the application, relied on a series of factors. 

5. Firstly he pointed to exhibits A and B which, as I have said, are the pleadings which were previously filed in the proceedings and which contained, to a greater or lesser extent, pleadings of the nature which are now sought to be relied upon. He submitted that it was evident from a comparison of the pleadings that a forensic decision had been made to plead the further amended statement of claim in its present form.

6. Secondly, he submitted that the fact that Mr Kimber’s evidence was not relevant to any pleaded fact in issue had been expressly drawn to the attention of the solicitors for the plaintiffs in exhibit D. 

7. Thirdly, he submitted that no cogent explanation had been advanced for the circumstances which had brought about the present application.

8. Fourthly, he submitted that prejudice would be visited upon the defendant in the event that the application was granted, and that such prejudice would manifest itself in a number of ways. He submitted that matters arising from any evidence to be given by Mr Kimber had not been investigated by the defendant, and that there would be a necessity to do so in the event that the application for an amendment were granted.  He also pointed to the serious nature of the allegations which had been made by the plaintiffs, and submitted their gravity was such would give rise to further prejudice in the event that the proceedings were delayed. He also submitted that in the circumstances of this case there was no real prospect, even if a costs order were made against the plaintiffs, that such a costs order would ever be able to be met. 

9. Finally, senior counsel submitted that in light of the evidence filed by the plaintiffs there was no utility in granting the amendment which was sought.  He submitted that granting the amendment would necessarily require further evidence to be called, over and above that on which the plaintiffs had indicated they wished to rely.  This, he submitted, would inevitably cause even further delay to the completion of the proceedings.

10. The power of the Court to amend a pleading is to be found in s. 64 of the Civil Procedure Act 2005 (NSW):

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

11. The power is a discretionary one. That discretion is to be exercised according to a number of fundamental principles which were discussed by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27. Those principles include the following.

12. Firstly, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the Court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to opposing party and to other litigants at [94].

13. Secondly, what may be just requires account to be taken of other litigants, and not just the parties to the proceedings in question (at [95]). 

14. Thirdly, speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. Although this should not detract from a proper opportunity being given to the parties to plead their case, it suggests that limits may be placed upon re-pleading when delay and cost are taken into account.  It cannot be said that a just resolution requires that a party be permitted to raise any arguable case, at any point in the proceedings, upon payment of costs (at [98]).

15. Fourthly, it is not the case that every application for an amendment should be refused because it involves the waste of some costs, and some degree of delay.  Such results are almost inevitable.  Factors such as the nature and the importance of the amendment to the party applying cannot be overlooked.  The extent of the delay, and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, must be weighed against permitting a party to alter its case. Much may depend upon the point that the litigation has reached when the application is made.  There may be cases where it may be properly concluded that a party has had sufficient opportunity to plead their case, such that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates (at [102]).

16. Fifthly, the exercise of the discretion will invariably require an explanation to be given where there is delay in applying for an amendment.  A party will need to show that the application is brought in good faith, and will also need to bring the circumstances giving rise to the amendment to the Court's attention, so that such matters may be weighed against the effects of any delay, and the objectives of any relevant rules (at [102] and [103]).

17. Sixthly, a party has the right to bring proceedings.  A party also has the choice of what claims are to be made, and how they are to be framed. However, limits will be placed upon the ability of a party to effect changes to its pleadings, particularly if the litigation is advanced.  That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues that they seek to agitate (at [112]).

18. Bearing in mind the nature of the discretionary power, and the principles which govern its exercise, it is my view that the present application must fail for a number of reasons. 

19. Firstly, no real explanation has been given as to the circumstances which bring about the necessity for the application.  All that has been said is that there was a ‘misconception’ on the part of those acting for the plaintiffs.  Quite apart from the fact that such an explanation is plainly inadequate, it is contradicted by the evidence in exhibit D to which I will come.

20. Secondly, even assuming that from the point of view of the plaintiffs there is some importance attaching to the amendments which are sought, the decision in Aon (supra) recognises that where a party has had a sufficient opportunity to plead his or her case there may be circumstances in which it is necessary for a Court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opposing party (and perhaps to other litigants).  In the present case, it significant that the statement of claim commencing the proceedings was filed in 2013.  It was served in 2014. Between 2014 and 2016 the proceedings were the subject of close case management by a judge of this Court. The plaintiffs have been given every opportunity to properly plead their case.

21. Thirdly, it is significant that the pleadings which are now sought to be incorporated into a further amended statement of claim were, to a greater or lesser extent, included in earlier versions of the pleadings which are exhibits A and B on the present application.  As I observed in my earlier judgment when dealing with the admissibility of the evidence of Mr Kimber, a defendant is entitled to assume in those circumstances that a forensic decision has been made to plead the case in a particular way.  I am satisfied that the defendant in the present case has gone about the preparation of its own case acting on such assumption.

22. Fourthly, leaving aside what I regard as its inadequacy, I am not able to accept the explanation that the necessity to seek leave to amend the pleadings has arisen as the consequence of a ‘misconception’ on the part of those acting for the plaintiffs.  In the letter of 27 July 2016 (exhibit D) the defendant's solicitor (in para. 2) asserted that some of the evidence upon which the plaintiffs proposed to rely fell outside of the pleaded issues. Paragraph 3 of that letter cited, as an example of that, the evidence of Mr Kimber.  Although the response to that letter is not in evidence before me in documentary form senior counsel for the defendant read it onto the record.  It included a statement to the effect that "the defendant can make whatever objections it chooses to make".  There is no evidence one way or the other before me as to whether, in light of what had been raised by the solicitors for the defendant, any attempt was made by those acting on behalf of the plaintiffs to review the pleadings as they then stood. If it is the case that the pleadings were reviewed it should have been apparent that the matters which were asserted by the defendant had some considerable substance. If, on the other hand, the pleadings were not reviewed, then in my view they ought to have been.  It was made plain in para. 6 of exhibit D that the evidence which was being prepared by the defendant for the purposes of this case was directed to the plaintiff's case as it had been pleaded in the further amended statement of claim filed in May 2015.  In those circumstances, the observations of the plurality in Aon (at [112]) to which I have already referred assume considerable significance. Limits will be placed upon the ability of a party to effect changes to a pleading, particularly if the litigation is advanced. That is why reference is made to parties having a sufficient opportunity to identify the issues that they seek to agitate. Quite apart from the fact that this litigation has been on foot for years, exhibit D provided those acting for the plaintiffs with the opportunity to examine their pleadings in light of what had been raised, and amend them if that were thought to be appropriate.

23. Fifthly, and consequent upon the last matter, the application for an amendment has not come about as a consequence of some unforeseen and sudden development in the course of the trial.  The defendant's position, specifically as to the evidence of Mr Kimber which gives rise to this application, was made plain months ago.

24. Sixthly, I am satisfied that if the amendment were allowed, significant prejudice would be visited upon the defendant.  That prejudice would manifest itself in a number of ways.  To begin with, and consistent with its stated position set out in exhibit D, the defendant has prepared its case based upon the matters asserted in the further amended statement of claim.  I accept that in doing so, the defendant has not carried out any investigation into matters which might arise from any evidence to be given by Mr Kimber. Some of the issues to which Mr Kimber's evidence goes, including the procurement of certain vessels, dates back to 2007 and 2008. Whether relevant persons are still alive, and/or whether relevant documents still exist, are matters which are unknown. If the amendment were granted the proper investigation of such matters would necessitate the defendant undertaking a number of separate inquiries. That would, in my view, inevitably result in an adjournment of the proceedings, giving rise to more cost and more delay.  I do not accept that statements already obtained by the defendant upon which they propose to rely address the entirety of the issues to which Mr Kimber's evidence relates, at least not to the extent necessary to alleviate the necessity for further inquiries and investigations to be undertaken.

25. I also accept the submission advanced by senior counsel for the defendant that the nature and extent of some of the allegations which are made by the plaintiffs in this case are such that further prejudice would be caused by any further delay in the proceedings.  Some of the allegations made by the plaintiffs in the present case are of the utmost seriousness, as evidenced by the cross examination of Commander Saunders (at T84 – 85).  The assertions made by the plaintiffs in pursuing their claim extend beyond an allegation of mere casual negligence.  They extend to allegations of acts which reflect upon the competence of one or more persons. In those circumstances, delay can impose severe additional prejudice upon a defendant: Bishopsgate Insurance Australia Limited (in liq.) v Deloitte Haskins & Sells [1999] 3 VR 863 at 887 per Tadgell and Ormiston JJ.

26. I also accept, in terms of prejudice to the defendant, that even if a costs order were made against the plaintiffs in the event that the proceedings were adjourned, it is, to say the least, highly unlikely that such a costs order could ever be met.

27. Finally, I accept that the utility of the proposed amendment is likely to be dependent upon the plaintiffs being given leave to call evidence over and above that upon which they have indicated they propose to rely.  In the event that came to pass more costs, and more delay, would eventuate.  As I have noted, these proceedings were commenced approximately three years ago.  They have been the subject of close case management by a Judge of this Court. Against that background the plaintiffs have had ample opportunity to properly plead their case, particularly in circumstances where correspondence which passed between the respective solicitors should have put the plaintiffs squarely on notice of the defendant's position in relation to the very issue which has given rise to the present application.

28. It was put to me, in effect, that the plaintiffs are impecunious and that those acting for them have limited resources.  Even accepting that to be the case, it does not follow that the preparation of a case should be undertaken in a manner which is other than thorough and complete.

29. For those reasons the application for an amendment is refused.

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Decision last updated: 10 October 2016