Janssen v OnePath Custodians Pty Ltd - [2024] FCA 497

FEDERAL COURT OF AUSTRALIA
Janssen v OnePath Custodians Pty Ltd [2024] FCA 497

File number(s): VID 9 of 2021

Judgment of: BUTTON J

Date of judgment: 13 May 2024

Catchwords: PRACTICE AND PROCEDURE – pleadings – amendment – where applicants seek to amend to add extensive and substantive claims – where trial date set nearly one year ago – where, if amendments allowed in their entirety, trial date would be vacated and matter not heard for significant period – where certain amendments could be accommodated in existing trial timetable – consideration of competing interests – application allowed, in part

Legislation:
Federal Court of Australia Act1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 8.21, 16.53

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

KTC v David [2022] FCAFC 60

Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 55

Date of hearing: 10 May 2024

Counsel for the Applicants: K P Hanscombe KC with A Folie

Solicitor for the Applicants: Slater and Gordon

Counsel for the First Respondent: N De Young KC with M Tehan

Solicitor for the First Respondent: King & Wood Mallesons

Counsel for the Second Respondent: R Craig KC

Solicitor for the Second Respondent: MinterEllison

Counsel for the Third Respondent: A Batrouney

Solicitor for the Third Respondent: Allens

ORDERS

VID 9 of 2021

BETWEEN:
IAN EDO JANSSEN

First Applicant

DEAN TOBIN REEVES

Second Applicant

AND:
ONEPATH CUSTODIANS PTY LTD (ACN 008 508 496)

First Respondent

ZURICH AUSTRALIA LIMITED (ABN 92 000 010 195)

Second Respondent

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)

Third Respondent

ORDER MADE BY:

BUTTON J

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:
Applicants’ Further Amended Statement of Claim
1.The Applicants have leave to file and serve a Further Amended Statement of Claim in the form provided on 8 May 2024 with the deletion of the amendments listed in Annexure 1 of these orders [Annexure omitted from this record of the orders made] by 4:00pm on 14 May 2024

Evidence
2.Paragraph 8 of the orders of the Honourable Justice Button made 10 June 2023 (10 June 2023 Orders) (by which the First Respondent is to file and serve any lay witness affidavits, expert evidence and tender list on which it seeks to rely) as amended by paragraph 4 of orders of the Honourable Justice Button made 14 November 2023 (14 November 2023 Orders), be vacated.
3.Paragraph 9 of the 10 June Orders (by which the Second and Third Respondents are to file and serve any lay witness affidavits, expert evidence and tender list on which they seek to rely), as amended by…

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.

Continue reading Janssen v OnePath Custodians Pty Ltd

Details

AGLC: Janssen v OnePath Custodians Pty Ltd [2024] FCA 497
Case: [2024] FCA 497
Decision Date: 13 May 2024

CaseChat Overview and Summary

In the case of Janssen v OnePath Custodians Pty Ltd, the applicants sought permission to amend their statement of claim to introduce extensive new claims. The application was considered by the court, which had to balance the applicants' rights to amend their pleadings against the interests of the respondents and the efficient administration of justice. The respondents opposed the application, arguing that the proposed amendments would significantly delay the trial, which had already been set for nearly a year. The court was required to determine whether the applicants should be allowed to add the new claims and, if so, which of the proposed amendments could be accommodated within the existing trial timetable.

The court considered the competing interests and the impact of the amendments on the trial timetable. It found that some of the proposed amendments could be accommodated without significantly delaying the trial, while others, particularly those related to the Commissions Claims, would necessitate a substantial postponement. The court concluded that granting leave for all the amendments in their entirety would vacate the trial date and result in a significant delay, which was not in the interests of justice. Consequently, the court allowed the application in part, granting leave for the applicants to amend their statement of claim but excluding the amendments related to the Commissions Claims.

The court issued orders to facilitate the implementation of its decision. The applicants were granted leave to file a further amended statement of claim, excluding the amendments concerning the Commissions Claims, by a specified date. The respondents were required to file and serve their evidence, and the applicants were to respond to that evidence within certain deadlines. The parties were also directed to file joint expert reports and to attend mediation by an extended date. Additionally, the applicants were required to provide the respondents with a draft further amended originating application, limited to the amendments allowed by the court, and the parties were to submit proposed consent orders in respect of that document. The court reserved the costs of the application.

These orders reflect the court's decision to balance the applicants' right to amend their pleadings with the need to ensure a timely and efficient trial. By limiting the scope of the amendments, the court aimed to maintain the trial timetable while allowing the applicants to pursue certain new claims.

Orders

Orders of the court

Applicants’ Further Amended Statement of Claim

1. The Applicants have leave to file and serve a Further Amended Statement of Claim in the form provided on 8 May 2024 with the deletion of the amendments listed in Annexure 1 of these orders [Annexure omitted from this record of the orders made] by 4:00pm on 14 May 2024

Evidence

2. Paragraph 8 of the orders of the Honourable Justice Button made 10 June 2023 (10 June 2023 Orders) (by which the First Respondent is to file and serve any lay witness affidavits, expert evidence and tender list on which it seeks to rely) as amended by paragraph 4 of orders of the Honourable Justice Button made 14 November 2023 (14 November 2023 Orders), be vacated.

3. Paragraph 9 of the 10 June Orders (by which the Second and Third Respondents are to file and serve any lay witness affidavits, expert evidence and tender list on which they seek to rely), as amended by paragraph 5 of 14 November 2023 Orders, be vacated.

4. Paragraph 10 of the 10 June Orders (by which the Applicants are to file and serve any lay witness affidavits and expert evidence in reply to the Respondents’ lay and expert evidence), as amended by paragraph 6 of 14 November 2023 Orders, be vacated.

5. The First Respondent is to file and serve any lay witness affidavits and expert evidence and tender list of documents, on which it seeks to rely by 21 June 2024.

6. The Second and Third Respondents are to file and serve any lay witness affidavits and expert evidence and tender list of documents, on which they seek to rely by 26 July 2024.

7. The Applicants are to file and serve any lay evidence in reply to the Respondents’ evidence by 9 August 2024.

8. The parties are to file joint expert reports by 23 August 2024.

Defences

9. The Respondents are to file and serve defences to the Further Amended Statement of Claim by 2 August 2024.

Mediation

10. The date in paragraph 13 of the 10 June Orders (by which the parties are to attend mediation before a mediator to be appointed by agreement of the parties or, if the parties are unable to agree, by further order), as extended by paragraph 7 of 14 November 2023 Orders, be extended from 30 August 2024 to 6 September 2024.

Other

11. The Applicants are to provide to the Respondents a draft Further Amended Originating Application by 4:00pm on 15 May 2024, limited to amendments that reflect the grant of leave in respect of the Further Amended Statement of Claim pursuant to order 1 above.

12. By 4:00pm on 16 May 2024, the parties are to submit proposed consent orders in respect of the draft Further Amended Originating Application, or notify the chambers of the Honourable Justice Button that there is a dispute concerning that document, following which the matter will be listed on a date to be fixed.

13. There be liberty to apply on 3 business days’ written notice.

14. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking all of these matters into consideration, I have determined that leave should not be granted for the Commissions Claims amendments.Conclusion Orders will be made granting leave for the amendments, other than those concerning the Commissions Claims. OPC provided a schedule that identified the paragraphs concerning the Commissions Claims. Counsel for the Applicants did not anticipate any dispute between the parties as to which amendments concerned the expansions to the Commissions Claims. In the course of oral submissions it was suggested that categories 1 to 3 of the additional discovery sought by the Applicants concerned the expanded Commissions Claims. It was not entirely clear whether category 4 would be pressed if the Commissions Claims amendments were not allowed and, if so, if it would be resisted given it appears OPC has stated it would only take two days to produce those documents. Accordingly, I will first make orders concerning leave to amend and direct the parties to confirm the position regarding discovery given my determination on the ambit of the leave to be granted. I will also make orders directing that the Applicants provide the Respondents with a draft Further Amended Originating Application with amendments limited to those that reflect the amendments allowed to the pleading, and for the parties to submit proposed consent orders in respect of that Originating Application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	VID 9 of 2021
Judgment of:	BUTTON J
Date of judgment:	13 May 2024
Catchwords:	PRACTICE AND PROCEDURE – pleadings – amendment – where applicants seek to amend to add extensive and substantive claims – where trial date set nearly one year ago – where, if amendments allowed in their entirety, trial date would be vacated and matter not heard for significant period – where certain amendments could be accommodated in existing trial timetable – consideration of competing interests – application allowed, in part
Legislation:	Federal Court of Australia Act1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 8.21, 16.53
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 KTC v David [2022] FCAFC 60 Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	55
Date of hearing:	10 May 2024
Counsel for the Applicants:	K P Hanscombe KC with A Folie
Solicitor for the Applicants:	Slater and Gordon
Counsel for the First Respondent:	N De Young KC with M Tehan
Solicitor for the First Respondent:	King & Wood Mallesons
Counsel for the Second Respondent:	R Craig KC
Solicitor for the Second Respondent:	MinterEllison
Counsel for the Third Respondent:	A Batrouney
Solicitor for the Third Respondent:	Allens

ORDER MADE BY:	BUTTON J
DATE OF ORDER:	13 MAY 2024