Kemp v Tiirikainen (No 3) - [2021] ACTSC 167

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kemp v Tiirikainen (No 3)
Citation:	[2021] ACTSC 167
Hearing Date:	23 July 2021
DecisionDate:	23 July 2021
Before:	Mossop J
Decision:	See [17] - [18]
Catchwords:	PRACTICE AND PROCEDURE – PLEADINGS – Application to amend statement of claim – where amendment would introduce new claim for exemplary damages and raise new factual issues – where application was made just prior to trial date – where no adequate explanation for the amendment provided – application dismissed PRACTICE AND PROCEDURE – SUBPOENAS – Application to set aside subpoenas to produce documents and give evidence issued by the plaintiff – where subpoenas are related to issues raised by the plaintiff’s unsuccessful pleading amendment application – first subpoena set aside – second subpoena not set aside – not possible to conclude that the second subpoena lacked a legitimate forensic purpose at time of application
Cases Cited:	AON Risk Services Australia v Australian National University (2009) HCA 27; 239 CLR 175 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 56 NSWLR 298
Texts Cited:	JD Heydon, Heydon on Contract (Lawbook Co, 2019)
Parties:	Graham Kemp ( Plaintiff) Mark Tiirikainen and Ian Sutherland trading as S&T Lawyers (First Defendant) Charles Giles (Second Defendant)
Representation:	Counsel D Hassall ( Plaintiff) M Karam with D Thomas (First Defendant)
Solicitors Nelson & Hill Lawyers ( Plaintiff) McInnes Wilson Lawyers (First Defendant)
File Number:	SC 328 of 2018

MOSSOP J:

Introduction

Before me are two applications. The first is an application brought by the plaintiff to amend the plaintiff’s Amended Statement of Claim. The second is an application by the first defendant to set aside two subpoenas.

Important aspects of the context in which these applications are to be decided are that:

(a)the proceedings were commenced on 4 December 2017 in the Magistrates Court and subsequently transferred to the Supreme Court;
(b)the current version of the Statement of Claim is the Amended Statement of Claim dated 15 June 2018;
(c)the proceedings have been previously listed for trial commencing on 28 April 2020 but that trial was adjourned as a consequence of the late service of evidence by the plaintiff;
(d)in December 2020 the proceedings were listed for hearing on 26 July 2021;
(e)as a result of the likely unavailability of the trial judge the proceedings are likely to be adjourned until Wednesday, 28 July 2021; and
(f)the proceedings are estimated at two to three days in length.

Proposed amendment to pleadings

The proposed amendment to the pleadings is to add a single paragraph. That paragraph made a claim for exemplary damages and particularised the basis for that amendment. The basis for the claim for exemplary damages was “the first defendants failed to adequately supervise the second defendant in his role as their employed solicitor or to educate him so as to avoid the breaches of duty, including fiduciary duty … and negligence … and further, he was held out by the first defendants to all the…

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.

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Details

Case: [2021] ACTSC 167
Decision Date

CaseChat Overview and Summary

The case of Kemp v Tiirikainen (No 3) involved two applications before the Supreme Court of the Australian Capital Territory. The first application was brought by the plaintiff to amend the pleadings to include a claim for exemplary damages and raise new factual issues just prior to the trial date. The second application was brought by the first defendant to set aside subpoenas issued by the plaintiff to produce documents and give evidence, related to issues raised by the plaintiff's unsuccessful pleading amendment application.

The court considered the legal issues of whether the amendment to the pleadings was justified and whether the subpoenas should be set aside. The court found that the proposed amendment to the pleadings was made at a very late stage of the proceedings and would introduce new factual issues not currently pleaded. The court considered the application to amend pleadings should be refused due to the lateness of the amendment, the unsatisfactory procedural history of the matter, and the absence of a persuasive explanation for the lateness of the amendment. The court found that setting aside the subpoenas was appropriate in some instances, as the subpoenas lacked a legitimate forensic purpose and would delay the resolution of the proceedings. However, the court found that it was not appropriate to set aside the subpoena to the ACT Law Society, as it could not be said that the subpoena lacked a legitimate forensic purpose.

The court dismissed the application to amend the pleadings and set aside the subpoenas to the extent that they lacked a legitimate forensic purpose. The court ordered that the plaintiff pay the first defendant's costs of the application to amend the pleadings and that the first defendant bear their own costs in relation to the application to set aside the subpoenas.

Orders