Jausnik v Nominal Defendant (No 2)
[2015] ACTSC 130
•13 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jausnik v Nominal Defendant (No 2) |
Citation: | [2015] ACTSC 130 |
Hearing Date: | 12 May 2015 |
DecisionDate: | 13 May 2015 |
Before: | Mossop AsJ |
Decision: | See [31] |
Category: | Interlocutory Application |
Catchwords: | PROCEDURE – Application for leave to amend statement of claim – application made on second day of trial – inadequate explanation for delay in making application – no consideration given by parties to which proposed amendments fell within the scope of existing pleadings and which proposed amendments would expand the scope of existing pleadings – application dismissed other than in relation to one minor amendment only |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 21, 502 |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Jausnik v Nominal Defendant [2014] ACTSC 406 |
Parties: | Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party) |
Representation: | Counsel Mr PJ Deakin QC and Ms LP McFee (Defendant) Mr GM Watson SC and Mr WS Reynolds (First Third Party) Mr J Sheller (Second Third Party) |
| Solicitors Minter Ellison (Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party) | |
File Number: | SC291 of 2012 |
The application
1. Yesterday during the course of the proceedings I granted the defendant leave to file an amended statement of claim in relation to the third party proceedings but the amendment that I permitted was only a very minor one and I otherwise dismissed the defendant’s application for leave to amend its pleadings. I indicated that I reserved my reasons and I would give them as soon as possible. These are my reasons.
2. The nature of the claim is summarised in an earlier interlocutory decision in the matter Jausnik v Nominal Defendant [2014] ACTSC 406 at [4]-[8] and need not be repeated here.
3. The proceedings were commenced by originating claim filed 11 October 2012. They were first listed before me for directions on 18 July 2014. On 12 September 2014 I listed the matter for hearing on 16 February 2015 and made other directions. At that stage a mediation was arranged by the parties for 8 October 2014. The matter did not settle at mediation. On 18 November 2014 I gave leave to the defendant to file expert reports after a certificate of readiness had been filed: see Jausnik v Nominal Defendant [2014] ACTSC 406. In giving that leave I recognised that there was a risk that as a consequence of permitting reliance upon those reports the hearing date may need to be vacated. That proved to be correct as a result of the difficulties in obtaining expert opinion in response to the expert reports filed by the defendant and on 19 December 2014 I made orders by consent vacating the hearing date. I also then listed the matter for hearing on 11 May 2015. On 4 March 2015 I made directions relating to preparation for the trial. The return of a subpoena issued to the New South Wales Police Commissioner dated 13 March 2015 which was returnable on 20 April 2015 was, by consent of the parties, adjourned until the first day of the hearing.
4. The final hearing of the proceedings commenced on Monday 11 May 2015. The day was consumed with an application for suppression orders made by the New South Wales Police Commissioner arising out of the subpoena issued to the Commissioner, an opening by senior counsel for the defendant and a view. The making of the suppression orders permitted the Police Commissioner to produce without objection a document titled ‘Safe Driving Policy’ applicable to the New South Wales Police Force. Shortly after commencement of the hearing senior counsel for the defendant foreshadowed that having now had access to the Safe Driving Policy the defendant would be in a position to ‘finalise quite the last aspects of how we're going to plead this case’. An application in proceeding seeking leave to amend the statement of claim supported by an affidavit of Mark Treffers was served on the two third parties late on the evening of Monday 11 May 2015.
5. On Tuesday 12 May 2015, the second day of the hearing, the application was filed in Court and was heard. The application sought that the defendant be granted leave to file and serve an amended statement of claim in the form annexed to the affidavit of Mr Treffers of 11 May 2015. On Tuesday morning some additional evidence was tendered and Mr Treffers was cross examined for some time. I then heard the submissions of the parties. Those submissions concluded at 12.42pm. Arrangements had been made to permit the cross examination after the lunch adjournment of an expert witness who would not be available after Tuesday. Immediately prior to the lunch adjournment I announced the orders of the Court in relation to the application for leave to amend and indicated that I would give reasons as soon as possible. The balance of the afternoon was taken up with the evidence of the expert witness.
The amendments sought
6. The amendments sought in the draft amended statement of claim fall into three categories. First, there are additional particulars of negligence included in relation to the first third party. Second, there is a minor amendment to the claim against the second third party which adds to an allegation that the second third party failed to take reasonable care for the safety of the plaintiff an allegation of a breach of an obligation to provide a safe system of work. Third, there are additions to the particulars of the second third party’s alleged negligence.
7. The first category of amendments are particulars which add allegations of failure to comply with various specified paragraphs of the ‘AFP National Guideline: ACT Policing: Urgent duty driving and pursuits’ (the AFP National Guideline) and the New South Wales Police Force ‘Safe Driving Policy’ (the Safe Driving Policy). In addition they would add a particular of ‘continuing the pursuit of Williams’ vehicle into the Australian Capital Territory without permission’. This particular is not expressly tied to an obligation under either the AFP National Guideline or the Safe Driving Policy. The third category of amendment is similar in that it identifies in relation to the second third party failure to comply with various particularised aspects of the Safe Driving Policy and the AFP National Guideline. It also adds a particular of ‘failing to instruct the first third party to terminate the pursuit in circumstances where there was no permission to continue the pursuit from the Australian Federal Police’.
Evidence
8. The evidence relied on by the defendant in support of the application was the affidavit of Mr Treffers dated 11 May 2015 as well as copies of the AFP National Guideline and the Safe Driving Policy. The first third party tendered two letters. In the first letter dated 7 May 2015 his solicitors indicated that they did not have instructions to consent to the application to amend the statement of claim foreshadowed by letter dated 6 May 2015 and required any application to be supported by affidavit. In the second letter dated 12 May 2015 they contended that the affidavit provided related to amendments proposed in the letter of 6 May 2015 rather than the amendments that were in fact being pursued.
9. Mr Treffers was cross examined by senior counsel for the first third party.
Principles
10. The application is an application under r 502 of the Court Procedures Rules 2006 (ACT) (the Rules). That permits the making of an amendment if the Court considers it to be appropriate. The exercise of that discretion must take place in the context of r 21 of the Rules.
11. Plainly enough the principles articulated in the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (‘Aon’) are applicable in circumstances such as this. This case is similar to Aon in that the application to amend the pleadings is not being made well in advance of the hearing. In Aon the application was made at a point when the proceedings were due to commence. In this case it is made shortly after the commencement of the substantive hearing.
12. By the time Aon reached the High Court the position was such that the High Court accepted that the making of the amendments to the pleadings would be a substantial change in the case that was to be run and that it would, leaving aside the disruptive consequences of the application itself, require an adjournment of the proceedings. Whether or not this case is analogous in that respect is a matter which I will deal with below.
13. Several particular points can be made arising from the reasons in Aon:
a.(a) Generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for so as to permit the circumstances giving rise to the amendments to be weighed in the discretionary balance: see Aon at 215 [103].
b.(b) Parties have a right to bring proceedings but have to make choices as to what claims are made and how they will be framed and prosecuted. Limits will be placed on the ability to change the case they wish to run. That is why in seeking the just resolution of the dispute reference is made to the parties having sufficient opportunity to identify the issues they seek to agitate: see Aon at 217 [112].
c.(c) The reference in the Rules to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings on payment of costs: see Aon at 213 [98].
What was the explanation for the late amendment?
14. Insofar as the amendments particularise the AFP National Guideline that document is a document which has been publicly available and hence the issue is why at this stage of the proceedings it is being particularised if indeed it is necessary to do so. In relation to the Safe Driving Policy it is clear that the policy was only made available to the defendant on Monday, the first day of the hearing. The issue that then arises is why steps were only taken to obtain that policy in March 2015 when the proceedings have been on foot since 2012, defences to the third party notices filed in October 2013 and the proceedings listed for hearing in September 2014.
15. The evidence of Mr Treffers referred to the provision of a draft amended statement of claim by letter dated 6 May 2015 and then, following obtaining access to the Safe Driving Policy, a further proposed amended statement of claim which was sent by email to the solicitors for the third parties on Monday 11 May 2015 at 6.22pm. The affidavit explained the further particularisation in relation to the AFP National Guideline as simply being made ‘on instructions’ to further particularise the general allegations pleaded against the third parties in the statement of claim. The affidavit also explained that the Safe Driving Policy was sought by subpoena on 13 March 2015 and returnable on 20 April 2015. It was not produced on that date and ultimately only produced on the first day of the hearing. Upon access to the document the defendant has been able to further particularise the general obligations breached by the third parties.
16. The affidavit itself does not explain why the Safe Driving Policy was not sought to be obtained either under subpoena or a notice for non-party production at any time after the defendant filed a defence in November 2012 or at any time after the third party notice was issued in November 2012. In cross examination it was made clear that Mr Treffers was aware of the existence of both the AFP National Guideline and the Safe Driving Policy as early as the coronial proceedings in 2011, prior to the commencement of these proceedings.
17. Further, there is no explanation in the affidavit as to why the further particularisation of the case was considered necessary. In cross examination the further particularisation was said to be in order to assist the Court and the third parties. There was no explanation in the evidence as to which of the amended particulars fell within the scope of the existing particulars and which would have the effect of expanding the scope of the claim made by the defendant.
18. What one makes of the absence of any cogent explanation for the delay depends upon how the proposed amendments are characterised. That is an issue to which I will return.
Submissions of the parties
19. Senior counsel for the defendant explained that in relation to the first category of amendments, the bulk of the particulars provided would fall within the scope of the existing particulars. Put slightly differently, the various provisions of the policy and guidelines referred to in the new particulars were matters which could be pointed to as indicating a breach of duty falling within the scope of the existing particulars. However he appeared to accept that there were some particulars which went beyond the scope of the matters raised by the existing particulars. The submissions of the defendant did not involve an analysis of the first category of particulars in such detail as to permit identification of precisely those particulars which fell within the scope of the matters raised by the existing particulars and those that did not. While a number of the new particulars appear to fall within the scope of the existing particulars the exercise that demonstrated that was not comprehensive.
20. In relation to the third category of amendments senior counsel for the defendant appeared to accept that the particularisation of breach of a range of aspects of the Safe Driving Policy went beyond matters raised in the existing particulars. Once again the submissions did not extend to a detailed analysis of the provisions of the AFP National Guideline or the Safe Driving Policy referred to in the additional particulars so as to demonstrate those which at least arguably fell within the existing particulars.
21. The manner in which the application was brought on meant that the third parties were required to deal with the application ‘on the run’. Having regard to the fact that the application was made on limited notice after the trial had commenced, that was inevitable unless any attempt to continue the trial with a hope of concluding it in the time allotted was to be abandoned. As a consequence the submissions made as to the nature and consequences of the amendment were less developed than might otherwise have been the case.
22. Senior counsel for the first third party emphasised the delay in making the application for leave to amend, having regard to the period since 11 October 2012 that the proceedings have been on foot and having regard to the fact that Mr Treffers accepted in cross examination that the police guidelines about driving safely in the circumstances were a critical issue in the case.
23. He also emphasised the late provision of notice of the amendments proposed so as to particularise breaches based on the AFP National Guideline and the absence of a supporting affidavit to explain the reasons for the amendment when those proposed amendments were put forward on 6 May 2015.
24. He emphasised the failure to take reasonable steps to require the production by New South Wales of the Safe Driving Policy in advance of the hearing.
25. He emphasised the recognition by Mr Treffers that the case was a very complicated one.
26. He pointed to the fact that experts had been qualified to deal with the case based on the particular allegations that had been made although he did not identify any particular problem with the expert evidence that would arise out of the making of the amendments.
27. He suggested that the amendments to paragraph 7, the second category of amendment to which I have referred above, may result in his client wishing to make a claim for indemnity from his employer, the second third party.
28. Counsel for the second third party emphasised the fact that the particularised case against his client did not involve a claim based on breaches of the Safe Driving Policy but was rather based on failure to provide training, failure to provide equipment and failure to give particular instructions either before or during the pursuit.
Consideration and conclusion
29. My conclusions in the light of the evidence and submissions can be stated as follows:
1.(1) There was an inadequate explanation for the delay. There was no proper explanation as to why no attempt was made to obtain the Safe Driving Policy until March 2015 when the existence of the policy was known as early as 2011. Further there was no proper explanation as to why, if it was considered necessary to amend the particulars so as to particularise specific breaches of the AFP National Guideline, that exercise was not undertaken earlier.
1.(2) The significance of the inadequacy of the explanation depends upon the extent to which the new particulars expanded the range of matters which the third parties would need to address. If each of the references in the new particulars to the terms of the policy or guidelines fell within the scope of the existing particulars then the amendments would be of little substantive significance and would not be a source of prejudice to the third parties. Rather, they would simply articulate very precisely the provisions that were in fact relied upon which would be of assistance to the Court and to the third parties. If, on the other hand, the provisions of the policy or guidelines referred to went beyond the matters referred to that were raised by the particulars then there would be the potential for prejudice to the third parties who had prepared their case to address that which had previously been particularised. In summary, insofar as the case was not altered or expanded then the absence of a good explanation for the delay would be of little significance whereas if the case was expanded by the addition of the new particulars then the absence of a good explanation would be significant.
1.(3) It was clear, so far as the first third party was concerned, that the statement of claim alleged as a particular of negligence ‘failing to comply with protocols for cross-border pursuits’. It appeared to be common ground between the defendant and the first third party that no further particularisation of that particular of negligence was sought by the first third party. Although submissions were directed to the issue of whether or not this was sufficient to incorporate the whole of the terms of each of the policy and the guidelines I was not confident, having regard to the extent of submissions that were made before me, that this was necessarily the case. The submissions were not sufficiently comprehensive to permit that conclusion to be confidently reached. Similarly, a number of the other particularised provisions of the guidelines or policy may have been within the scope of other particulars of negligence already provided but the submissions were not comprehensive enough so as to permit any particular by particular analysis. I was therefore not in a position to confidently identify those new particulars which effectively fell within the scope of the existing particulars and those which did not. The submission was not made by the defendant that the separate articulation of the provision of the policy or guideline would give the allegation of negligence a different status to that which would exist if the terms of the policy or guideline were relied upon as evidence of an existing particularised breach.
1.(4) So far as the third category of amendments was concerned, the amendments appear more clearly to open up additional issues that go beyond those which have been identified in the particulars. Once again some of the additional particulars may fall within the scope of the existing particulars but to a lesser extent than in relation to the first category of amendments.
1.(5) In relation to the second category of amendment, that alleging a breach of an obligation to provide a safe system of work, I do not accept the first third party’s submission that the amended pleading may give rise to a need to make a counterclaim against the second third party. The pleading is a pleading against the second third party and if there was an available cross claim to be made then the first third party has had ample opportunity to make such a claim.
1.(6) Because of this state of affairs it was not possible to reach any firm conclusion as to whether or not, if leave to amend was granted, the third parties would be successful in an application for an adjournment. While an application for an adjournment was foreshadowed, the prospects of the Court being required to adjourn the proceedings by reason of the amendments and the period of any adjournment could not be accurately assessed. It is likely, at the very least, that a short adjournment would need to be granted so as to permit proper consideration of the implications of the amendments and, if necessary, the preparation of an application for a longer adjournment. Even such a short adjournment had the potential to significantly delay the finalisation of the proceedings having regard to the limited time that had been allocated for the hearing of the matter.
1.(7) In the light of these considerations I concluded that it was not appropriate to grant leave to make the amendments except the second very minor category of amendment in relation to the allegation of a failure to provide a safe system of work. The effect of this conclusion is to permit the claim to be agitated on the basis of the existing particulars including, where relevant, evidence of the terms of the policy and the guidelines. That means that to the extent that the case is not expanded, the Safe Driving Policy and the AFP National Guideline can be relied upon – but through their objection to the amendment, the first and second third parties have denied themselves the benefit of a clearer articulation in the pleading of precisely which provisions are relied upon. To the extent that the amendment would expand the scope of the claim and have the potential to raise additional issues or require a different approach to the conduct of the case on the part of the third parties then I am not satisfied that it is appropriate to make the amendments sought having regard to:
a.(a) the late notice of the amendment;
b.(b) the absence of a good explanation for making the amendment at this stage; and
c.(c) the potential for the making of that amendment to cause disruption to the orderly conduct of the trial which is in progress or alternatively prejudice to the third parties in having to deal with an altered case ‘on the run’.
30. I concluded that the refusal of the amendment would leave the parties in a position in relation to which they could not complain. Both are stuck with the existing particulars. Insofar as the AFP National Guideline and the Safe Driving Policy constitute evidence relevant to the particularised claim of breach of duty then they may be relied upon. Insofar as they raise issues which go beyond the particulars then they may not be used to establish a breach of duty. So far as the third parties are concerned, if they have failed to fully explore, prior to the commencement of the hearing, the scope of the particulars that have been pleaded against them then that is a forensic risk which they have elected to take.
31. The orders of the Court that I announced yesterday were therefore:
In relation to the application to amend the pleadings filed in Court on 12 May 2015 the defendant has leave to amend its statement of claim by inserting after the word ‘failed’ in paragraph 7 the words ‘to provide a safe system of work and failed’ but otherwise the application is dismissed.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 25 August 2015 |
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