Jausnik v Nominal Defendant (No 4)
[2015] ACTSC 251
•25 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jausnik v Nominal Defendant (No 4) |
Citation: | [2015] ACTSC 251 |
Hearing Date: | 21 August 2015 |
DecisionDate: | 25 August 2015 |
Before: | Mossop AsJ |
Decision: | The application is dismissed with costs. |
Category: | Interlocutory Application |
Catchwords: | PROCEDURE – Application for leave to amend defence by first third party – amendment sought to introduce statutory provision as complete defence to claim – amendment sought after completion of evidence – sole reason for delay failure to consider statutory provision before bringing present application – amendment introduces questions of law and questions of fact – amendment affects claim against second third party now subject to limitation period – application dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 21 Limitation Act 1985 (ACT) s 21 Corporations Act 2001 (Cth) s 911A Police Act 1990 (NSW) s 213 Workers Compensation Act 1987 (NSW) s 151F Corporations Regulations 2001 (Cth) reg 7.1.29 |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2) (2015) 106 ACSR 469 Jausnik v Nominal Defendant [2014] ACTSC 406 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Zardo v Ivancic [2001] ACTSC 4 Zardo v Ivancic [2001] ACTSC 40 |
Parties: | Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party) |
Representation: | Counsel Mr PJ Deakin QC (Defendant) Mr GM Watson SC (First Third Party) Ms L Sherman (Second Third Party) |
| Solicitors Minter Ellison (Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party) | |
File Number: | SC 291 of 2012 |
Application
These proceedings involve a claim for contribution by the nominal defendant against an individual police officer and the State of New South Wales. The nominal defendant has settled with the plaintiff, a police officer, and now seeks to recover contribution from other parties said to be concurrent wrongdoers. The nature of this case is explained in more detail in an earlier interlocutory decision Jausnik v Nominal Defendant [2014] ACTSC 406 at [4]-[8] as follows:
[4]The proceedings arise out of a motor vehicle accident which occurred on 20 March 2010. The plaintiff and the first third-party were in a police vehicle pursuing a driver of an unregistered motor vehicle, Justin Williams, who was attempting to evade apprehension by New South Wales police. The first third-party was the driver of the police vehicle, the plaintiff a passenger.
[5]The vehicle driven by Mr Williams collided with another vehicle. The plaintiff will allege that he was required to render first aid to the occupants of the two vehicles involved in the collision and, as a result, sustained psychiatric injury.
[6]The proceedings between the plaintiff and the defendant were settled by a consent judgment entered in July 2013 on the basis that the plaintiff recover the sum of $1.225 million. The balance of the proceedings involves the defendant’s claim for contribution against Michael Hannaford, the first third-party, and the State of New South Wales, the second third-party. The two third-parties have separate solicitors although for the purposes of this application they were jointly represented.
[7]The claim made against the first third-party and the second third-party is set out in a statement of claim dated 22 November 2012. In summary, the allegation against the first third-party is that he continued the pursuit of Williams vehicle in circumstances where it was not appropriate to do so. In summary, the claim against the second third-party is that it failed to provide training or instruction to officers concerning the pursuit of other vehicles, including the termination of pursuits, and failed to provide training in the use of radio equipment to obtain instructions on the pursuit.
[8]The defences filed by each third-party contain general denials. The defence filed by the first of third-party also claims contributory negligence.
The hearing of the proceedings has concluded and two days have been set aside for oral submissions on 22 and 23 September 2015.
The first third party, Michael Hannaford, has applied for leave to file an amended defence by adding a paragraph which is in the following terms:
In further or alternative answer to the whole of the defendant’s claim, the first third party:
(i)Says that s 213 of the Police Act 1990 applies to the circumstances in which the plaintiff’s claim arose; and
(ii)As a consequence the first third party is not liable to the defendant for contribution in respect of any damages paid to the plaintiff for the injury caused to the plaintiff in the incident.
The application accepts that if leave to make the amendment is granted the first third party should pay any costs thrown away by reason of the amendment.
In these reasons I will refer to the defendant as the nominal defendant, the first third party as Mr Hannaford and the second third party as the State of New South Wales.
The section
Section 213 of the Police Act 1990 (NSW) (‘Police Act’) provides:
213 Protection from personal liability
A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).
Evidence on the application
In support of the application Mr Hannaford read the affidavit of John Solomon, a partner in the firm of solicitors acting for Mr Hannaford, sworn 10 August 2015. The substance of the affidavit is that the terms of s 213 of the Police Act were overlooked by all of the lawyers acting for Mr Hannaford up until shortly before 27 July 2015 when Mr Solomon received a letter from senior counsel advising him that he had just become aware of s 213 and that he believed the section applied in the present proceedings. Those who had overlooked or not discovered the section prior to July 2015 were the senior associate with carriage of the matter, junior counsel originally engaged earlier in the proceedings, senior and junior counsel engaged for the purposes of the hearing and Mr Solomon himself. As soon as Mr Solomon became aware of the provision he notified the other parties of his client’s intention to seek an amendment of his existing defence. On 31 July 2015 he was notified that the nominal defendant did not consent to that amendment.
Mr Solomon was not cross-examined on his affidavit.
In opposition to the application for leave to amend the nominal defendant relied upon the affidavit of Mark Treffers, a partner in the firm of solicitors acting for the nominal defendant, sworn 19 August 2015. That affidavit outlines that:
(a)the hearing of the case was conducted over five days commencing on 11 May 2015 and adjourned for oral submissions on 22 and 23 September 2015;
(b)the nominal defendant’s written submissions and chronology were filed and served on 31 July 2015.
The affidavit deposes to the prejudice said to be suffered by the nominal defendant if the proposed amended defence is permitted. That prejudice, as articulated in the affidavit, can be summarised as follows. All evidence in the matter has been completed and the amendment would raise issues that were not litigated at the hearing or identified for the purposes of a mediation which has taken place. The proposed amendment is described as “a new case”. The nominal defendant would need to investigate what evidence of lay or expert witnesses would be required to meet the case now identified. The nominal defendant does not have the evidence on which Mr Hannaford proposes to rely in support of the new case. The proposed amendment would require a significant change in the nominal defendant’s evidentiary case against Mr Hannaford which would make it necessary for Mr Hannaford to return for cross-examination. A review of Edward Jausnik’s position as a witness in the case would also be required. The proposed amendment would require the nominal defendant to plead a different case against the State of New South Wales involving an allegation of vicarious liability in respect of a tort committed by a member of the New South Wales Police Force in the event that the member is exempt from personal liability. As a consequence the hearing dates allocated to the completion of the matter would be lost and “the litigation will be delayed and substantially recommenced”. The affidavit also asserts that this additional work required by the nominal defendant cannot adequately be compensated for by an order for costs.
Mr Treffers was not cross-examined on his affidavit.
Submissions
At the outset I note that the State of New South Wales neither consented to nor opposed the making of the amendment.
Senior counsel for Mr Hannaford made the following submissions. He accepted that the amendment was obviously being sought very late in the proceedings but submitted that an explanation for the delay had been provided, namely, the fact that the statutory provision had been overlooked by all of the lawyers acting for Mr Hannaford until July 2015. His principal submission was that the Court was ultimately obliged to apply the law, that the statutory provision was in terms that required that it be applied and that this was a significant factor in favour of granting leave to amend. He referred to the decision of the New South Wales Court of Appeal in Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 (‘Yates’) as illustrating the proposition that even on appeal a party may be entitled to raise a statutory provision which the Court was obliged to apply even if it had not been raised at any stage below. He submitted that in the decision in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 (‘Ceva Logistics’) Leeming JA made clear, in the context of a question of choice of law, that the agreement of the parties did not displace the Court’s obligation to identify the applicable law: [15]. In the same vein he referred to the decision of the Court of Appeal in Royster v Cavey [1947] KB 204 in which the Court refused to accept a fiction agreed to by the parties as to how the proceedings should be constituted.
He submitted that Mr Hannaford would clearly be responsible for the costs thrown away by reason of the amendment and that he could be made available for further cross-examination at the commencement of the two days set aside for final submissions in the matter.
The nominal defendant opposed the making of the amendment. The first submission that senior counsel for the nominal defendant made was that it had not been established that s 213 of the Police Act gave rise to an arguable defence. That was because the tort alleged against the first third party was a tort which occurred in the Australian Capital Territory. In those circumstances, given that as a result of the decision in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 the law to be applied was the law of the place of the tort, the first third party had not established that it was arguable that s 213 of the Police Act would apply in the Australian Capital Territory so as to provide a defence to personal liability. In support of this proposition he referred to the decision of Master Connolly in Zardo v Ivancic [2001] ACTSC 4 in which his Honour found that the provisions of s 66 of the Motor Accidents Act 1988 (NSW) were not intended to have an extraterritorial operation that would permit a party against whom a judgment of a superior court of another jurisdiction has properly been entered to set that judgment aside. He submitted that this provided an illustration of the general proposition that a provision such as s 213 of the Police Act would be presumed to apply only to torts committed in New South Wales and not extend to torts committed in other States or territories of Australia.
Secondly he referred to the decision of Sackville AJA in Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2) (2015) 106 ACSR 469 (‘Park Trent’) in which his Honour refused leave to amend a defence where the application for leave occurred on the sixth day of a seven day trial in circumstances where the new defence would raise new factual issues in the case. He submitted that in the present case the amendment of the defence so as to rely upon s 213 of the Police Act would raise a wholly new issue of fact namely whether or not the first third party was acting “in good faith”. That, he submitted, would change the focus of the evidence from the objective question of whether or not Mr Hannaford was acting negligently to a subjective question of whether or not he was acting in good faith.
He submitted that the case had been conducted and difficult forensic decisions had been made by the nominal defendant in the light of the defence that it was seeking to meet. He noted that the nominal defendant had adopted a particular (sympathetic) approach to the application by Mr Jausnik, the plaintiff in the proceedings, to set aside the subpoena issued to him to give evidence because of the nature of the defence that had been filed by Mr Hannaford. He submitted that if the amendment is permitted then not only would the position in relation to Mr Jausnik need to be reconsidered but the nominal defendant would also need to consider what other evidence it should call in order to counter the claim that Mr Hannaford was acting in good faith. He suggested that such evidence might extend to expert evidence of a psychological or psychiatric nature as to what Mr Hannaford’s behaviour indicated about his state of mind, particularly if Mr Jausnik remained unavailable.
He submitted that it was inevitable if leave to amend is granted that the existing dates for submissions would be lost.
He explained that if leave is granted then the nominal defendant would need to consider whether or not to amend its claim against the second third party, the State of New South Wales, so as to allege that the State was vicariously liable for the actions of Mr Hannaford pursuant to the provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW).
In reply, senior counsel for Mr Hannaford submitted:
(a)The concept of acting “in good faith” was a well known one being used in more than 200 federal statutes. It required the relevant person to have acted honestly and conscientiously. He submitted that it was open to the nominal defendant to cross-examine Mr Hannaford in relation to the issue. He submitted that the suggestion by the nominal defendant that it would obtain psychiatric or psychological evidence about Mr Hannaford’s state of mind was “bizarre”.
(b)The likelihood was that Mr Jausnik would remain unavailable and that he had already given two interviews which were in evidence and therefore his evidence was realistically not able to be challenged.
(c)The choice of laws question about the application of s 213 of the Police Act in the present circumstances was a difficult one but the contention of the first third party was clearly arguable.
(d)In reality the relevant prejudice to the nominal defendant could be addressed by having Mr Hannaford recalled for further cross-examination and by an order for costs.
Relevant principles
The power to amend is that in r 502 of the Court Procedures Rules 2006 (ACT) (‘Rules’). That is the power which was considered in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (‘Aon’). Significant for the purposes of that decision were the terms of r 21 of the Rules which provide:
21 Purpose of ch 2 etc
(1)The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.
(2)Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving—
(a) the just resolution of the real issues in the proceedings; and
(b)the timely disposal of the proceedings, and all other proceedings in the court,
at a cost affordable by the respective parties.
(3) The parties to a civil proceeding must help the court to achieve the objectives.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
Several particular points can be made arising from the reasons in Aon. First, 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: [103]. 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: [112]. 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 a just resolution to an application for leave to amend. 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 upon the payment of costs. At paragraph [98] the plurality stated:
[98]Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference 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.
Consideration
In the present case there is no doubt that the first third party has given an explanation for the failure to raise at an earlier time the potential defence under s 213 of the Police Act. Mr Solomon’s affidavit frankly discloses that the provision was overlooked by all the lawyers acting for the first third party up until the end of July 2015. The case is thus different to that in Aon where no explanation for the amendment was proffered.
I do not accept the submission made by the nominal defendant that no arguable case for the application of s 213 of the Police Act had been made out in the present case. The authority referred to by the nominal defendant was Zardo v Ivancic [2001] ACTSC 4. That decision was overturned by a full Court of the Supreme Court in Zardo v Ivancic [2001] ACTSC 40. The differing conclusions reached by the Master and the Full Court illustrate the fact that notwithstanding the general presumption that a law is not intended to operate extraterritorially, whether or not a different intention is demonstrated in any particular case may be the subject of differing views. For present purposes it is enough to say that I am satisfied that it is arguable that s 213 of the Police Act applies to the conduct of a New South Wales police officer notwithstanding that under the test in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 the substantive law to be applied is that of the Territory.
The principal thrust of the submissions made by the first third party was that the statutory provision was one which, in the circumstances, could not be ignored and that it fell into a category similar to the choice of law issue discussed in Ceva Logistics or the provisions of the Workers Compensation Act 1987 (NSW) considered in Yates. On the other hand the decision in Park Trent illustrates the fact that not all statutory provisions must simply be applied but rather, if they are to be deployed as a defence to an action, must be pleaded and, if not pleaded, cannot be raised. The cases referred to by the parties illustrate the proposition that there must be a dividing line between those statutory provisions which must be applied by the Court even if not pleaded and those which are dependent upon pleading in order to be applied. The submissions of the parties did not elucidate the principle to be applied in determining whether the statutory provision falls into one category or the other. In order to understand the competing submissions it is necessary to have regard to some of the authorities.
Yates is a decision of the New South Wales Court of Appeal dealing with “an extraordinary and unfortunate case” in which proceedings in the District Court were conducted by the parties in a manner which completely overlooked the provisions of the Workers Compensation Act 1987 (NSW) which initially prevented a worker from recovering any damages from his or her employer in respect of an injury for which compensation was payable under that Act and then reinstated a common law cause of action for plaintiff’s injuries sustained after 30 June 1987 but subject to significant qualifications on the entitlement to damages. The proceedings in the District Court were conducted without regard to either the abolition of the common law rights or those rights as reinstated subject to qualifications on the entitlement to damages. During the course of the appellate proceedings the defendant made an application to amend the notice of appeal to raise those provisions of the statute which qualified the entitlement to damages. Handley JA identified that a party was generally entitled to take a new point of law on appeal where the point would entitle the plaintiff to a more favourable final judgment from the appellate court than that granted by the trial court. However his Honour identified that that was certainly not the case where the point, if successful, would require a new trial. As a consequence his Honour found that if there was nothing more in the case then his Honour would have refused leave to amend the notice of appeal and dismissed the appeal. However his Honour’s opinion on the appropriate course was altered by the fact that the qualifications on the entitlement to damages included s 151F of the Act which provided: “A court may not award damages to a person contrary to this Division”. His Honour rejected the contention that the provision deprived the District Court of jurisdiction to make an award of damages otherwise than in accordance with the Act. However his Honour was compelled to give effect to the language of s 151F. At 357-358 his Honour said:
What effect should this Court give to the peremptory language of s 151F? While it is an emphatic direction to apply the 1989 Act, the courts were obliged to do that apart from any express legislative instruction to that effect: see Wilson v Dagnall [1972] 1 QB 509 at 519. In Coulton v Holcombe (at 8), the majority quoted and applied the following statement in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; sub nom Metwally v University of Wollongong 60 ALR 68 at 71:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The question is whether the “most exceptional circumstances” of the present case oblige this Court to order a new trial. We were referred to no precedents directly in point and it would be idle to search for any. The case is surely unprecedented and hopefully is unlikely to become a precedent.
The Court however is not entirely without guidance. The first consideration is that this trial was not conducted according to law. The law applied by the judge was not the law of this State. The trial judge did not fall into error in the course of attempting to apply the law which governed the case. The judge completely misconceived the relevant law by overlooking the statute which governed the award of damages in this case.
...
It seems to me that the Court cannot overlook the fundamental irregularity in the proceedings and the disregard to date of the peremptory instruction of parliament contained in s 151F. I am therefore driven to the conclusion that because the trial was not conducted according to law this is a most exceptional case which falls outside the general rule applied in Coulton v Holcombe. In my opinion this Court is bound to intervene and order a new trial limited to damages.
Park Trent illustrates that, at the other end of the spectrum there are statutory provisions which need only be considered if properly pleaded in accordance with the relevant court rules by a party. In that case the provision was reg 7.1.29 of the Corporations Regulations 2001 (Cth) which provided, in effect, an exemption from the circumstances in which a person was taken to provide a “financial service” and hence from the prohibition in s 911A of the Corporations Act 2001 (Cth) upon carrying out a financial services business without a licence. In that case the regulation defined an “exempt service” by reference to a series of conditions which were dependent upon factual matters relating to the nature of the advice being given. The case was similar to the present in that his Honour treated the failure to advert to the regulation as an oversight wholly attributable to a lack of thoroughness in the defendant’s camp rather than some forensic decision. His Honour said:
36If the proposed amendment raised only issues of law (as Mr Hewitt contended), I would be inclined to grant leave to the defendant to amend the Defence. I would be prepared to do so notwithstanding the lateness of the application and the failure of the defendant’s legal representatives to become aware of a regulation that had been in force for over a decade. If the amendment raised only questions of law, ASIC would be able to address any new issues in its final submissions. Any costs wasted by reason of the late application to amend could be addressed by making an appropriate costs order. In these circumstances it is unlikely that the hearing would be significantly lengthened or that the resolution of the case would be delayed.
37In my view, however, the proposed amendment raises not only legal issues, but fresh factual issues that would need to be the subject of evidence before the necessary findings could be made. This can be seen from the requirements of reg 7.1.29(5)(d).
His Honour then went on to examine the way in which the trial had been conducted having regard to the absence of any reference to reg 7.1.29 of the Corporations Regulations 2001 (Cth) and the consequences for the fair conduct of the trial if the amendment was permitted. At [46]-[47] his Honour concluded:
46If the proposed amendment was allowed, it is virtually certain that witnesses who have already given evidence would have to be recalled for further cross-examination. The opportunities that would have to be given to ASIC to consider whether it should adduce further evidence would necessarily involve delays in a case that was given an expedited hearing. Not only would the court have to find additional hearing time, but the days set aside for the hearing of final submissions would have to be vacated and rescheduled. These considerations are relevant to each of the objects identified in s 57(1) of the Civil Procedure Act.
47I have also taken into account that the amendment application was not only made extremely late, but that the delay is wholly attributable to lack of thoroughness in the defendant’s camp. As I have noted, it is not apparent why a belated appreciation of the significance of the PIAs prompted research that should have been undertaken at a much earlier stage of the proceedings. In any event, the significance of the PIAs (whatever it may be) should have been apparent from a reading of the statement of claim. These are matters which can and should be taken into account in determining the dictates of justice in the present case.
(footnotes omitted)
That the decision in Yates has been confined and represents an exceptional circumstance when reliance is sought to be placed on statutory provisions is illustrated by Gosford City Council v Timbs [1999] NSWCA 255. In that case the conduct of the case, inconsistent with authority and a statutory provision, on the basis that a local council was the occupier of a piece of land was found not to give rise to the kind of peremptory direction which would lead to the decision being overturned on appeal. On the other hand the decision has been relied upon to permit amendment of a notice of appeal to reflect the necessity to correct a remittal to a statutory office that had been abolished by statute and to substitute a remittal to the correct statutory office: Commonwealth v Angel (1992) 110 ALR 695.
That s 213 of the Police Act does not fall into the category of the kind of peremptory command dealt with in Yates is consistent with the reasons of Hunt AJA delivering the judgment of the New South Wales Court of Appeal in Pringle v Everingham [2006] NSWCA 195. In that case a District Court judge had permitted the defendant police officers to rely upon defences of justification and self defence, including two particular statutory provisions which had not been pleaded. The trial judge had adopted that course notwithstanding the protests by the plaintiff that the defences had not been pleaded. Hunt AJA, with whom the other judges of the Court of Appeal agreed, held at [45] that “the absence of any defences of justification or self-defence at the trial in the present case meant that the verdicts entered for the defendants ... were not open to the judge.” In dealing with an application to amend the pleadings so as to specifically raise the relevant defences his Honour referred to the desirability of amending the pleadings in order to reflect the factual matters being litigated in the trial or to reflect those which were litigated in the trial from which an appeal is brought. The ultimate conclusion was that despite the conduct of their counsel at trial the defendants should not be left with no effective defence to the plaintiff’s claim and the prejudice to the plaintiff could be cured by an adjournment and an appropriate order for costs: [61]-[62]. As a consequence his Honour considered that a new trial was necessary. It is notable that this approach was informed by the pre-Aon authorities, in particular the decision in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 which was overturned by the decision in Aon: see [48]. However for present purposes the significance of the case is that in addressing the position taken by the defendants Hunt AJA noted that while the defendants had, on the one hand, contended that it was not necessary to plead the statutory provisions said to give rise to a justification it had, on the other hand, foreshadowed (but not pursued) an amendment to plead a defence under s 213 of the Police Act. The Court identified that no distinction had been demonstrated between a special defence arising under s 213 and the statutory provisions ultimately relied upon and hence that the correspondence in relation to s 213 illustrated the awareness of the defendants of the requirement to plead any special defence. The manner in which the Court made reference to s 213 is inconsistent with it being in the nature of the sort of peremptory command discussed in Yates.
Having regard to these authorities I consider that s 213 of the Police Act is a provision which if it is to be raised is one which must be raised on the pleadings. It is not one which, like a peremptory command to a court such as that considered in Yates, must be complied with and hence one which the Court is obliged to grapple with even if not raised upon the pleadings. If choice of law issues are in the same category as peremptory commands such as those considered in Yates (an issue which I do not need to determine) then it is clear that the proposed amendment to the defence is not within that category.
Having said that, if the matter sought to be raised now was one which simply raised a question of law then, like Sackville AJA in Park Trent, I would have been inclined to allow the amendment. However, the amendment does two additional things which means that it is likely that if leave is granted to make the amendment then the remaining hearing dates set for the matter will be lost and the resolution of the matter substantially delayed.
The first point is that the amendment would raise new issues of fact, namely, whether or not Mr Hannaford was acting “in good faith” when he pursued Mr Williams’ vehicle across the border to the point of the crash. Whether or not Mr Hannaford was acting in good faith for the purposes of the Police Act is a matter which is likely to involve a degree of subtlety of analysis of both the facts and the law. What is required to be established in order to make out a lack of good faith has been discussed in a number of cases which are usefully summarised by Katzmann J in Electro Optic Systems Pty Ltd v NSW (2014) 10 ACTLR 1 at [612]-[635]. The precise content of the requirement is sensitive to the statutory context in which the formula is used and hence may vary from case to case: [621]-[623].
The first third party recognised that raising this issue at this stage would inevitably require Mr Hannaford to return for further cross-examination. However the nominal defendant submitted that it would need to give further consideration to what other evidence it may be able to deploy in response to the defence. Notwithstanding the contention that the nominal defendant may be required to obtain psychological or psychiatric material in relation to Mr Hannaford’s state of mind I consider it unlikely to be possible to obtain admissible expert evidence of this nature. It is more likely that the evidence available will comprise additional cross-examination of Mr Hannaford and possibly other evidence of surrounding circumstances that cast light on whether or not he was acting in good faith at the time. However I accept that, notwithstanding my views about the likely material that might be available, it will certainly be open to the nominal defendant to properly consider how the evidence should be recast in the light of the changed position of the first third party. It would certainly be entitled to obtain the advice and to seek to adduce additional evidence. It would be entitled to pursue that course before any additional cross-examination of Mr Hannaford took place. That process may or may not lead to significant additional evidence being tendered or led but it will almost certainly lead to the vacation of the hearing dates and hence will delay, having regard to the Court lists and the availability of counsel, the finalisation of the proceedings for many months.
I note that in dealing with this point I have not treated the fact that Mr Treffers was not cross-examined on his affidavit as compelling me to accept his statements that “the litigation will be delayed and substantially recommenced”. Wrapped up statements like this made in affidavits in opposition to applications for leave to amend represent conclusions or statements of opinion which must be assessed by the Court having regard to the facts disclosed in the affidavit as well as the facts surrounding the litigation that are known to the Court.
The second and more significant point is that it is likely that the making of the amendment itself will lead to the necessity for the nominal defendant to replead its case. The affidavit of Mr Treffers discloses that if the amendment is made then the nominal defendant is likely to wish to plead against the State of New South Wales that it is vicariously liable for the conduct of Mr Hannaford. Any such pleading would presumably, by reason of the doctrine in Enever v The King (1906) 3 CLR 969, need to be pursuant to a statutory provision such as that in s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). Indeed that Act provides a specific regime for the bringing of legal proceedings for damages for torts by police officers which may be applicable and which has been completely overlooked or not applied in the present case. The parties did not address in their submissions whether the fact that the provisions of this Act were not invoked was a deliberate or accidental course. By reason of the pleading of Mr Hannaford no issue has, to date, arisen in relation to that Act. For present purposes the point is that the pleading of the provisions of s 213 of the Police Act would most likely lead to a recasting of the nominal defendant’s case against the State of New South Wales. There were no submissions from the State of New South Wales and certainly no concession on its part that any amendment of the claim against it made in response to the amendment of Mr Hannaford’s defence would be consented to. Even this state of affairs would almost certainly require the vacation of the hearing dates presently listed for the finalisation of the proceedings. The nominal defendant made the submission that even if it was entitled to make a claim for vicarious liability against the State of New South Wales the ability to recover damages would be limited in a way that its claim against Mr Hannaford was not. That was said to arise from the application of the provisions of the Workers Compensation Act 1987 (NSW). I was not taken to any of the relevant provisions that would support that contention. However, the definition of “worker” in that Act is provided by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and excludes certain police officers: s 4 definition of “worker”. The position is, therefore, that based on the submissions that were made it is clear that the nominal defendant would need to, at the very least, obtain advice as to any qualification on the damages which might be recoverable against the State of New South Wales.
However there is a further complication which was not explored in the submissions of either the nominal defendant or Mr Hannaford. Any amendment to the nominal defendant’s claim made in response to the change of the defence by Mr Hannaford would most likely involve a new cause of action against the State of New South Wales. That is because the existing claim for contribution is based upon an allegation of negligence on the part of the State in relation to training and equipment provided to police officers. An amendment to the claim so as to raise the State’s vicarious liability for the actions of its police officers would be a new cause of action. Section 21 of the Limitation Act 1985 (ACT) provides that an action on a cause of action for a contribution under s 21 of the Civil Law (Wrongs) Act 2002 (ACT) is not maintainable if brought after, relevantly, a limitation period of two years running from the date when the cause of action for contribution first accrued to the nominal defendant. Section 21(2) of the Limitation Act 1985 (ACT) provides that the cause of action accrues, relevantly, on the date when the judgment is given against the party claiming contribution. In the present case, the judgment against the nominal defendant was entered on 9 July 2013. As a consequence the two year period in which the claim for contribution is required to be brought expired on 8 July 2015, prior to the present application being made and obviously prior to any order which might be made upon that application. In those circumstances the amendment of the nominal defendant’s claim against the State of New South Wales would need to be made pursuant to r 503 of the Rules and could only be successful if it was established that the amendment arose out of substantially the same facts as the earlier pleaded cause of action. Notwithstanding some recent decisions of this Court which have given the phrase a reasonably broad operation, it is not at all clear that an amended claim against the State of New South Wales could be found to be within the scope of that phrase.
In summary the position is that:
(a)the application to amend is made extremely late;
(b)the need to make such a late amendment is “wholly attributable to lack of thoroughness in the [first third party’s] camp”: Park Trent at [47];
(c)the amendment is a significant one for Mr Hannaford as it may provide a complete defence to the action against him;
(d)the amendment would require that the nominal defendant be given an opportunity to reconsider the evidence available to it to meet the factual issue as to whether or not Mr Hannaford was acting in good faith;
(e)the amendment would inevitably require Mr Hannaford to be recalled for further cross-examination;
(f)there is a risk that the amendment would also involve revisiting past forensic decisions not only such as those in relation to the attitude of the nominal defendant to Mr Jausnik’s attendance to give evidence but also in relation to what evidence was required to be put on for the claim more generally;
(g)at the very least the nominal defendant would require sufficient time to permit it to carefully consider its evidentiary position;
(h)the making of the amendment would cause prejudice to the nominal defendant because had the defence been raised earlier then the nominal defendant would have been able to recast its claim against the State of New South Wales as a claim for vicarious liability under the Law Reform (Vicarious Liability) Act 1983 (NSW) but such a claim is now prima facie outside the relevant limitation period and there is no indication that the State of New South Wales would not rely upon that limitation period;
(i)if the amendment is permitted it is likely to lead to vacation of the dates set aside for oral submissions and that in turn will delay the conclusion of the proceedings for many months.
Ultimately it is for Mr Hannaford to persuade the Court that it is “appropriate” for the purposes of r 502 of the Rules to grant leave to the first third party to amend his defence. That must be assessed in the light of r 21 as explained in Aon. Taking into account the matters referred to above and recognising that, having regard to the manner in which the application for leave to amend was argued, there is considerable uncertainty about the precise consequences of granting leave to amend, I am not persuaded that it is appropriate to grant leave to amend. Even in the absence of the limitation difficulties with any new cause of action to be brought against the State of New South Wales I would have refused the application for leave to amend having regard to the lateness of the application, the reason for that lateness and the disruptive consequences of making such an amendment at this stage after the evidence has concluded.
Order
The order of the Court is:
1.The application in proceeding dated 10 August 2015 is dismissed with costs.
| I certify that the preceding forty [40] 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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