Kleio P/L v Comlease AFG Ltd (Now Known as CAFG AUSTRALEASE P/L) (No 2) - [2014] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
KLEIO P/L v COMLEASE AFG LTD (NOW KNOWN AS CAFG AUSTRALEASE P/L) & ORS (NO 2)
[2014] SADC 66
Reasons for Decision of His Honour Judge Chivell
30 April 2014
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS
Application by first defendant for permission to file an amended contribution notice to the third defendant seeking full indemnity with respect to its costs over and above amounts recoverable pursuant to costs orders. Principal action involved a rental agreement in which the first defendant was undisclosed agent for the third defendant – plaintiff unsuccessful and costs orders made in favour of defendants. Each of the first and third defendants had filed contribution notices conditional upon a finding of its liability to the plaintiff. Claim for indemnity not made prior to the within application. Several issues would require ventilation if application granted and further evidence likely needed.
Discussion of principles to be applied to late application to amend.
Application to amend refused on the basis that to grant it would cause a multiplicity of proceedings which would be wasteful of public resources, inefficient and prejudicial to the third defendant.
District Court Rules 1987 (SA) Rule 2.02, referred to.
In re Famatina Development Corporation Ltd [1914] 2 Ch 271; Kallinicos v Hunt [2006] NSWSC 723; Hazanee Pty Ltd v Elders Ltd [2006] NTSC 26; Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894; Burnham v The City of Mordialloc [1956] VLR 239; Micarone v Perpetual Trustees (1999) 75 SASR 1; Charlesworth v Relay Roads Ltd [1999] 4 All ER 397, considered.

KLEIO P/L v COMLEASE AFG LTD (NOW KNOWN AS CAFG AUSTRALEASE P/L) & ORS (NO 2)
[2014] SADC 66

This is an interlocutory application by the First Defendant (‘Comlease’) for permission to file an amended (second) Contribution Notice to the Third Defendant (‘AGC’) in these proceedings.
Background
The proceedings have a very long and unfortunate history. This is set out in the affidavit of Warren Smith sworn on 3 September 2013. Proceedings were commenced in 2000, but the matter did not go to trial until 2009. Judgment was delivered on 21 April 2011.
Neither of the parties involved in this application can be held responsible for the excessive delays in the action– that responsibility rests with the plaintiff.
Comlease filed a Contribution Notice to AGC on 12 April 2005. The terms of the Notice are as follows:
1. The First Defendant has been sued by the Plaintiff.
2.The First Defendant says that at all material times it was acting for and on behalf of the Third Defendant as the Third Defendant’s agent at law and pursuant to the terms of a Principal and Agent Agreement (and defined as the “Agency Agreement” in the Third Defendant’s Defence).
3.The First Defendant says that as such the First Defendant is entitled to and seeks indemnity from the Third Defendant in respect of any liability which may be found in favour of the Plaintiff as against the First Defendant.
[My underlining]
I agree with the submission made by AGC that ‘The claim was conditional, in that Comlease would only look to AGC for indemnity if Comlease was found liable to Kleio’. [1]
[1] Outline of Third Defendant
AGC had filed a Contribution Notice to Comlease much earlier, on 11 September 2001. That Notice was also conditional on AGC being found liable to the plaintiff. It stated:
In the event that the third defendant is found liable to the plaintiff, as principal of the first defendant pursuant to the terms of the Agency Agreement as defined in the Defence of the third defendant in this matter, the third defendant will seek to be indemnified by you pursuant to the Agency Agreement including pursuant to clauses 4, 6, 7 and 17 of the Agency Agreement for any liability for damages and costs payable by the third defendant, inclusive of interest.
It was not surprising, then, that:
At the trial it was agreed between (Comlease) and AGC that the issues of contribution or indemnity between them in respect of the proceedings and costs would not be further considered or heard until the substantive claims of (the plaintiff) and its associated entities and persons had been determined by the Court.[2]
[2] Affidavit of Warren Smith sworn 3 September 2013, para. 20
As I mentioned, judgment was delivered on 21 April 2011. On 29 July 2011, I made orders for costs against the plaintiff in favour of both defendants, and gave liberty to apply to both of them as to any issue arising on the Contribution Notices between them, and as to costs between them.
The plaintiff appealed to the Supreme Court. The appeal was struck out on 2 May 2012.
It would appear that neither Comlease nor AGC has recovered anything from the plaintiff arising out of these proceedings, or the appeal, apart from money lodged with the Registrar as security for costs. Comlease asserts that it is ‘out of pocket’ to the extent of at least $700,000 as a result.[3] I would not be surprised if AGC is out of pocket to a similar extent.
[3] Affidavit of Warren Smith sworn 3 September 2013, para. 24
By letter dated 21 June 2011, Comlease gave notice to AGC that it claimed that AGC was obliged to indemnify it for the shortfall of costs it had incurred after payment of the amounts secured during the litigation. At that stage, Comlease indicated that it considered that, if the matter could not be agreed, the appropriate course would be that Comlease issue separate proceedings, and:
In other words, the issue of indemnification of an agent by a principal is a substantive matter and is not a matter that should be the subject of an argument about costs in the existing proceedings.[4]
[4] page 2
The author of the letter did invite the recipient to advise whether AGC agreed with this position, however, and advised:
If your client however takes the view that any such issue should be ventilated in the existing proceedings, then our client will need to consider making an application to the Court in the existing proceedings and putting forward, if relevant, affidavit evidence in support of any such application. Accordingly, our client needs to know your position to determine whether it should be raising this issue in the existing court proceedings …[5]
[5] ibid
AGC’s solicitors responded by letter dated 22 June 2011. They advised that their client denied any obligation to indemnify Comlease and that, in their view:
… we do not see any merit in the commencement of further proceedings, when the costs of the above proceedings could be dealt with sensibly, and more efficiently, as a part of the determination of the costs in these proceedings.[6]
[6] page 2
In the event, Comlease has now adopted the course suggested by AGC by making this application.
The application is resisted by AGC, and the matter was argued before me on 6 February 2014.
The Application
Comlease seeks to amend the original Contribution Notice by adding, in summary, claims for:
·indemnity from AGC in relation to costs and expenses incurred in the proceedings and the appeal proceedings, over and above amounts recovered pursuant to costs orders;
·a declaration that AGC is liable to indemnify it for all such costs and expenses;
·orders for payment of interest, adjudication of the amount recoverable on a full indemnity basis, and costs of the application.
It is clear that this application constitutes a very substantial change of position on the part of Comlease, from the position it was taking at the trial.
It was not contended that the application is invalid because the matter is res judicata, or that I am functus officio to hear it, or that Comlease is estopped from making it. I will proceed on the basis that I have power to hear the application.
Mr Dal Cin, counsel for Comlease, cited In re Famatina Development Corporation Ltd[7] as authority for the proposition that the right to indemnity claimed by Comlease exists at common law (see also Kallinicos v Hunt[8] and Hazanee Pty Ltd v Elders Ltd[9]).
[7] [1914] 2 Ch 271 at 282
[8] [2006] NSWSC 723 at [21]
[9] [2006] NTSC 26 at [22]
I do not understand that AGC disputes that assertion. However, AGC contends that any common law obligation is excluded by the Agency Agreement between them.[10]
[10] Affidavit of Warren Smith sworn 3 September 2013, Exhibit WS-1
Submissions of Third Defendant
In its written submissions, AGC argues that Comlease’s application ‘seeks to mischaracterise a new cross-action for breach of contract, as an expansion of rights of contribution and indemnity historically sought during the proceedings’.[11]
[11] Submissions of Third Defendant, para. 1
Comlease’s claim is not for breach of contract. It does not assert that the claim is for breach of the Agency Agreement. The proposed amendment seeks an indemnity of an agent by its principal, a cause of action at common law. AGC’s opposition to the Comlease application can be summarised as follows:
·allowing the amendment would be contrary to DCR 2.02 and to the principles established by the High Court in Aon Risk Services Aust Ltd v ANU;[12]
·there has been substantial delay which has not been explained;
·AGC will suffer substantial prejudice;
·determination of the claim will require the tender of further evidence;
·allowance of the amendment will effectively split the trial.
[12] (2009) 239 CLR 175
Applicable Principles
As to the principles to be applied when considering the application to amend, Mr Dal Cin referred to Channel Seven Adelaide Pty Ltd v Manock,[13] in particular the judgment of Gray J at [164-169]. His Honour held that Rule 2.02 of the Supreme Court Civil Rules, 1987 (which also apply to this action, since it was commenced before 4 September 2006), is in similar terms to the rule under consideration in Aon. After setting out the relevant principles established in Aon, Gray J observed that its application has produced different results, and that ‘each case will turn on its own facts’ (at [166]).
[13] [2010] SASCFC 59
In Channel Seven, the question at issue was whether the court should have granted permission to amend to add a further defence at a late stage in a very long interlocutory process, but before trial. Bleby J, with whom White J agreed, held that permission to amend was correctly refused. Gray J dissented.
Bleby J referred as a starting point to Rules 2.01-2.03 of the 1987 Rules, which are as follows:
2.01These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.
2.02   With the object of:
(a)   promoting the just determination of litigation;
(b)   disposing efficiently of the business of the Court;
(c)   maximising the efficient use of available judicial and administrative resources; and
(d)   facilitating the timely disposal of business at a cost affordable by parties;
actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.
2.03The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties, and the preparation of the case for trial.
As to the power to amend, Bleby J referred to Rule 3.04, which provides:
3.04The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
…
(b) give leave to any party to amend, alter or withdraw any step in a proceeding;
…
Bleby J observed (at [50]) that there was ‘no material difference between these rules and those considered by the High Court in the Aon Case’ and that ‘the principles expressed by the High Court in that case have equal application to applications to amend pleadings under the rules that apply in the District Court to this action’.
His Honour distilled the following principles from Aon and from Worldwide Corporation Ltd v GPT Ltd,[14] quoted with approval by the plurality in Aon, as follows (at [46]):
[14] [1998] EWCA Civ 1894
It follows from these two cases that there are a number of relevant matters that will need to be taken in to account in determining whether a late application for permission to amend should be granted. Those matters include:
(1)Whether there has been undue delay in making the application;
(2)The extent to which there will be wasted public resources in granting the amendment;
(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4)Whether a trial date would need to be vacated or a trial adjourned;
(5)Whether there is any satisfactory reason for the delay in applying;
(6)Whether the point to be raised by the amendment would be raised in any event at the trial;
(7)The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9)Any other prejudice likely to be suffered by the other party;
(10)The additional costs likely to be incurred.
[Footnotes omitted]
Mr Livesey QC, counsel for AGC, referred to Burnham v The City of Mordialloc,[15] as authority for the proposition that an application to amend following the conclusion of a trial may be refused if a party would have conducted its case differently had the new material been raised at the proper time, and Micarone v Perpetual Trustees,[16] as authority for the proposition that such an amendment should not be allowed where it could prejudice other parties to the action. I take both cases as examples of the prejudice referred to in the principles distilled from Aon, quoted above.
[15] [1956] VLR 239 at 241
[16] (1999) 75 SASR 1 at [396-400]
Referring specifically to the principles distilled from Aon, Mr Dal Cin’s submissions, and Mr Livesey’s answering submissions, were as follows:
1.Whether there has been undue delay in making the application
Mr Dal Cin argued that there is no proposal to change the cause of action – it has always been one of indemnification by a principal of an agent acting in the course of the agency. Indeed, he argued that, on one view, the proposed amendment merely seeks to make explicit what is already implicit in the pleadings. I reject that submission. The present pleading claims an indemnity only in a very specific circumstance, namely, if Comlease was found to have any liability to the plaintiff in these proceedings. This circumstance has not arisen. The proposed amendment seeks a different indemnity, which has not been sought previously.
That being so, there is also no validity in Mr Dal Cin’s criticism that AGC has not seen fit to file a defence to the existing claim. Both parties have proceeded on the basis that there was an understanding that the Contribution Notices, as pleaded, would be left in abeyance pending the outcome of the plaintiff’s claim. The reasons for that are obvious. There would have been no point in litigating the issues, as pleaded, before the outcome of the plaintiff’s claim was known. The situation would be entirely different if the proposed amendments are made.
If Comlease had always intended to sue AGC for an indemnity for its costs and expenses, there has been no reason advanced as to why it could not have at least put AGC on notice of such an intention before, or at least during, the trial.
AGC points out that even after the plaintiff’s Statement of Claim was substantially amended after the commencement of the trial in early 2009, when it was necessary to file amended defences, and at a stage where it was plain that the plaintiff’s case was weak and likely to fail, Comlease did not seek to extend its claim for indemnity in the manner now proposed. The current application was not made until 25 November 2013. It is submitted that Comlease has not explained why the application was not made before, or even during, the trial, when there was a substantial adjournment to allow the plaintiff to re-plead its case.
That being the case, the conclusion is inescapable that the delay has been ‘undue’ in the circumstances.
2. The extent to which there will be wasted public resources in granting the amendment, and
3.Whether there will be inefficiency occasioned by the need to revisit interlocutory processes
Mr Dal Cin submitted that the proposed amendments really only raise a question of law. He pointed to correspondence between solicitors in which the solicitors for AGC took the view that dealing with the matter by amendment to the current proceedings was a more efficient and appropriate way to deal with the matter.[17]
[17] Letter from Minter Ellison dated 22 June 2011 – affidavit of Warren Smith sworn 3 September 2013, Exhibit WS-5
Mr Dal Cin argued that there was no need for further discovery, and no need for further evidence because of the ‘parol evidence rule’.
Mr Dal Cin argued that nothing had been put forward by AGC which would make evidence of the discussions relating to the entry into the Agency Agreement by the parties admissible.
These submissions were directed to Mr Livesey’s submissions that, if the application succeeds:
·there will be essentially, a new action before the court;
·additional pleadings, discovery and the like will be required;
·there will be the need for further oral evidence, particularly from Mr Andrew Black, who has already given evidence, and Mr Val Lorenzelli, who has not.
It is suggested that this additional discovery and evidence will deal with issues ‘surrounding entry into the Agency Agreement’. It is this aspect which Mr Dal Cin was addressing when he referred to the ‘parol evidence rule’.
Mr Livesey submitted that parol evidence may be required to explain ‘the proper meaning of the agency agreement’, and to address such issues as waiver by conduct on the part of Comlease, Anshun and ‘broader’ estoppels, abuse of process and laches.
Mr Livesey submitted that Comlease has not ‘put forward’ any evidence in support of the order, and nor could it do so because it would be unable to satisfy the test for such evidence, which is the same as for the introduction of new evidence on appeal (Charlesworth v Relay Roads Ltd[18]).
[18] [1999] 4 All ER 397 at 404-405
However, it is not Comlease which is seeking to lead new evidence. It says its right to indemnity arises at common law, not from the contract, and that the evidence that it was acting as AGC’s agent is already before the court.
I can hardly imagine that AGC would be prevented from introducing evidence in response to Comlease’s claim, should the evidence be admissible, on the basis that it has failed to satisfy the test in Charlesworth. It has had no prior notice of Comlease’s claim. In these circumstances, AGC should have no trouble satisfying that test.
The information supplied in the affidavits is insufficiently clear to enable me to reach a firm conclusion about admissibility, and the issue was only faintly argued on each side.
I will deal with the matter on the basis that there is a probability that further evidence would be required. Questions as to the ‘new evidence’ rule, and the applicability of the parol evidence rule, are best left until they are comprehensively argued.
4.Whether a trial date would need to be vacated or a trial adjourned
Again, Mr Dal Cin submitted that this factor does not arise. Further, he submitted that there would have needed to be a hearing on the question of costs between Comlease and AGC in any event, which would have raised the same issues as those which need to be argued if the proposed amendments are permitted.
It is inherent in AGC’s position that, to the contrary, there will, in effect, need to be a further trial of the issues raised by the Contribution Notice if the application to amend is granted.
Adopting the same approach as I have done in paragraphs 2 and 3, assuming the probability that further evidence will be required, it follows that such a hearing would probably result in a greater total time being spent by the court dealing with these issues than would have been the case had the issues been before the court at the trial. There will be the need for further opening and closing addresses, further interlocutory steps, and the like. Clearly, if these predictions are correct, costs will be considerably higher.
This is a factor which goes into the balance against granting the application.
5.Whether there is any satisfactory reason for the delay in applying
Mr Dal Cin argued, in effect, that there has been no relevant delay, in the sense that there has always been a claim for indemnity on the pleadings, and both parties regarded it as appropriate that the Contribution Notices filed by both parties be left in abeyance until the plaintiff’s claim was dealt with. He argued that Comlease has now ‘appropriately turned its attention to having the costs issues against AGC ventilated in the court’.
I have already observed that the proposed amendment raises a new claim. This calls for an explanation for the delay in applying for the amendment.
I accept the submission of Mr Livesey that Mr Dal Cin’s submission does not provide a satisfactory explanation for why the application was not made before, or at the latest during, the trial.
It was appropriate that the parties left their mutual Contribution Notices in abeyance because they were both conditional on one or the other (or both) of them incurring liability to the plaintiff. But this new claim for indemnity is not so conditional, and should properly have been made before the trial.
In Aon (supra), the plurality wrote on this topic at [103]:
The fact that an explanation had been offered for the delay in raising
the defence was regarded as a relevant consideration in JL Hold-
ings. 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. The importance attached by r 21 to the
factor of delay will require that, in most cases where it is present, a
party should explain it. Not only will they need to show that their
application is brought in good faith, but they will also need to bring the
circumstances giving rise to the amendment to the court’s attention, so
that they may be weighed against the effects of any delay and the
objectives of the Rules. There can be no doubt that an explanation was
required in this case.
[Endnote omitted]
In my view, no satisfactory explanation for the delay in raising this new claim for indemnity has been made.
6.Whether the point to be raised by the amendment would be raised in any event at the trial
Mr Dal Cin’s submission was simply that the point is raised in the Contribution Notice in the form ‘as filed’. I have already indicated that this submission should be rejected. The present Contribution Notice does not raise the type of indemnity now being raised. If it did, there would be no need for the amendment.
7.The likelihood of strain and uncertainty being imposed on the litigants
Mr Dal Cin argued that:
7.1Comlease and AGC are corporate litigants.
7.2They are therefore not subject to personal strain.
7.3Determination of the issues raised by the proposed amendments will give the companies certainty in their future dealings.
7.4Dealing with the issue in these proceedings will avoid the need for further proceedings.
Mr Livesey argued that to grant the amendment would impose a substantial financial burden on AGC in time and cost of litigation. He submitted that this cannot be adequately compensated for by an order for costs.
It is not clear to me why that is so. The financial burden should be compensable by costs. I do accept, however, that there can be a ‘general prejudice’ which is not readily identifiable but which must be present after a substantial delay. In Aon, at [100], the plurality observed:
The views expressed by Lord Griffiths in Ketteman v Hansel Properties Pty Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd, French J said of Bowen LJ’s statements in Cropper v Smith: “… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.
[Endnotes omitted]
In Channel 7, Gray J, (at [154]), also referred to the observations of the plurality in Aon at [102]:
The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is 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, which are to be weighed against the grant of permission to a party to alter its case…
I accept that the proposed amendment is important to Comlease. It hopes to recover, it says, more than $700,000 in costs and expenses which it is unable to recover from the plaintiff. However, this case is to be distinguished from Channel 7, where, in the words of Gray J at [155], refusing the application to amend would render Channel 7 ‘unable to defend itself on a proper ground, on a matter of public interest’.
That is not the case here. Like Aon, this is a purely commercial matter, and it has not been asserted that there are public policy issues involved here.
Having said all that, I accept Mr Dal Cin’s argument that, in a case like this which involves two commercial corporate entities, the personal costs in terms of stress and uncertainty are perhaps less prominent than in other cases where human litigants are involved.
8.Whether any further delay would undermine confidence in the administration of civil justice
Mr Dal Cin submitted that there would be no such undermining because there would be no additional delay that would not have otherwise occurred if these issues were ventilated in the determination of the question of costs.
For the reasons already discussed, and which also arise under the next heading, I think this submission must be rejected.
9.Any other prejudice likely to be suffered by AGC.
Mr Dal Cin pointed out that, on the affidavit evidence, Comlease had requested AGC to take over the conduct of the defence for both defendants.[19]
[19] Affidavit of Keith Powell sworn 28 January 2014, paras 2-5
However, that affidavit merely records, in a facsimile transmission dated 5 October 2000, that Comlease advised AGC that it was required to lodge a defence urgently, and asked if AGC had any objection. A note, which Mr Powell deposes was handwritten by him, records that he spoke with a Mr Sam Turri of AGC, and Mr Turri advised that ‘their legal advice was to stay out of it as it is between the customer and Comlease’.
Mr Powell deposed:
7.    I understood from Mr Turri that AGC had decided not to conduct the defence of the action.
8.    In the weeks that followed I had some further contact with Mr Turri in which I raised with Mr Turri the need for AGC to make any counterclaim that it wished to rely on in the proceedings and asking whether it instructed the First Defendant to maintain such a counterclaim. AGC did not, however, instruct the First Defendant to maintain a counterclaim on its behalf.
Mr Livesey submitted that there are several reasons why AGC would have conducted the litigation differently if the amendment had been made before the defendants’ cases were heard in the trial. He cited as examples, that AGC may have limited Comlease’s autonomy in the proceedings by seeking joint representation for Comlease and AGC, or by subrogating Comlease’s rights. Mr Dal Cin argued that they declined to do that in 2000. However, that was at a time before AGC was a party to the litigation. They were not parties in the action until 4 September 2001. In any event, there was no suggestion in 2000 that AGC should indemnify Comlease in the manner now claimed.
I accept that the ability to conduct the litigation that way, and thereby minimise costs, would have been a significant factor for AGC if AGC thought it might be liable for costs other than its own.
I also accept that the options mentioned above were also relevant to the stage at which AGC sought security for costs, which in the event was not until 2009. Clearly, if AGC thought it was at risk of having to indemnify Comlease for its costs, an earlier application for security for costs would have been appropriate.
Mr Livesey also submitted under this heading that the granting of the application would result in a multiplicity of proceedings, which would clearly prejudice his client. Mr Dal Cin argued that if the application is refused, his client would have the option of bringing separate proceedings against AGC claiming the indemnity.
In Aon, the plurality dealt with similar submissions at [86]. After dealing with some of the procedural difficulties ANU might face if it took the course of issuing fresh proceedings, their Honours wrote:
That raises the question of whether further proceedings would be met by an application for a stay based upon Port of Melbourne Authority v Anshun Pty Ltd. The issue would then be whether an exercise of reasonable diligence on the part of ANU would have led to the bringing of the claim in these, the earlier proceedings.
It is not immediately obvious how ANU could have dealt with an Anshun point in the further proceedings to which it refers. Further consideration of these matters is not required. It is sufficient for present purposes that ANU did not seek to show this Court how it might have done so. It is therefore not demonstrated that the amendment proposed was necessary to avoid multiple proceedings.
[Endnote omitted]
In my view, the suggestion made by Mr Dal Cin in relation to separate proceedings must be met with the same response here.
It is also clear from the decision in Aon that the previously held view that an order for costs is the panacea to cure all but the most extreme prejudice is no longer the guiding principle. In another passage in Aon which has applicability to the present circumstances, the plurality wrote, at [99]:
In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party’s opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
[Endnotes omitted]
Conclusion

In my opinion, the determinative factors in this application are:
1.This application clearly raises a claim for indemnity against AGC which has not been raised previously by Comlease in the proceedings.
2.The claim has been raised after judgment has been given in proceedings during which the claim could have been, and should have been, considered.
3.No satisfactory explanation has been given for the delay in raising the claim after judgment was given in the proceedings.
4.To allow the amendment would cause a multiplicity of proceedings, which would be wasteful of public resources, inefficient, and prejudicial to AGC.
For those reasons, the application is refused.
I will hear the parties as to any consequential orders.