Nesnah Nominees Pty Ltd v Blackwell
[1998] VSC 130
•10 November 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 8054 of 1995
NESNAH NOMINEES PTY LTD Plaintiff (ACN 005 206 066) v ALAN BLACKWELL and BELL DUKE PTY LTD Defendant (ACN 005 732 909)
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JUDGE: Eames, J. WHERE HELD: Melbourne DATE OF HEARING: 30 October, 2 November 1998 DATE OF RULING: 10 November, 1998 CASE MAY BE CITED AS: Nesnah v Blackwell and Anor MEDIA NEUTRAL CITATION: [1998] VSC 130
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Practice and procedure - limitation of actions - whether leave to amend should be granted to time-barred claims - Limitations of Action Act 1958, s. 34 - whether court has discretion to declare that amendments are to take effect from the date they are allowed, rather than from the date of the writ - Supreme Court Rules, rules 36.01(1) and (6).
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr J.D. Loewenstein Belleli King & Associates For the Defendant Mr J. Peters Ebsworth & Ebsworth
HIS HONOUR:
The action was listed for trial before me on Friday, 30 October 1998 but before opening the case Mr Loewenstein, counsel for the plaintiff, made application for the matter to be adjourned. That application was founded on the supposed inadequacy of discovery by the defendants and also upon the fact that further and better particulars of the defence and counterclaim, which the defendants had delivered on 29 October 1998, were said to have raised new matters which took the plaintiff by surprise. However, no application for further and better discovery had been made by the plaintiff and insofar as the further particulars of defence and counterclaim were delivered immediately before the trial they were delivered in response to a request which was itself only made on 22 October 1998. In any event, I was satisfied that nothing in those particulars could have taken the plaintiff by surprise. There being no substance in either complaint upon which the adjournment application was based I rejected the application, whereupon Counsel for the plaintiff made application to amend the plaintiff’s statement of claim. Counsel for the defendants indicated that should that application succeed then the defendants would themselves be obliged to seek an adjournment of the hearing, because his clients would be obliged to conduct substantial further investigations and preparation for trial.
Only a matter of a week or so before trial the plaintiff had made application to the Listing Master to amend the statement of claim. That application was refused, and no appeal was lodged against the Master’s decision. The substance of the proposed new amendments sought to incorporate some, but not all, of the earlier proposed amendments, but also sought to introduce entirely new and very wide-ranging allegations.
The application for amendment was not supported by any affidavit material. The sole explanation is that offered from the bar table, by Mr Loewenstein, counsel for the plaintiff, who conceded the lateness of the application but said that he had only recently been briefed, was not counsel at the time of the earlier application for amendment, and was the initiator of the new application because his review of the brief led him to the conclusion that the pleadings fundamentally fail to adequately outline the plaintiff’s case against the defendants.
Having heard argument, and having regard to the principles discussed in such cases as State of Queensland v J.L. Holdings Pty Ltd [1997] 189 CLR 146 and Howarth v Adey [1996] 2 VR 535, I ruled that the amendments should be permitted, but only on terms that the plaintiff pay costs thrown away, on a solicitor-client basis. The costs thrown away will include costs of the adjournment of the case out of the list, for which the defendants applied and which I am satisfied must be ordered. I now consider the question whether there should be other terms upon which the amendments should be permitted.
Mr Peters, counsel for the defendants, submitted that leave to make the amendments should be refused but in the event that I decided to allow the amendments I should do so only on stringent terms. In addition to making the order for solicitor-client costs to be paid, Mr Peters submitted that I should make an order declaring that the amendments to the statement of claim were to take effect only as from the date of my order, namely 30 October 1998. He submitted that were I to make such an order I would preserve the entitlement of the defendants to plead and rely upon the statute of limitations, insofar as any such defence might be successfully taken with respect to any new claims introduced by the amendments to the pleadings. That submission raised difficult questions as to my power to make such an order and I adjourned so as to hear further argument concerning that matter.
The plaintiff’s claim as originally pleaded alleged that the defendants, as the accountants for the plaintiff, gave advice which was negligent or represented a breach of the terms of the contract of retainer, which required the defendants to exercise reasonable care and skill. The plaintiff also made claims based on provisions of the Trade Practices Act and the Fair Trading Act.
It was the plaintiff’s case that when its major customer, Nissan, announced in February 1992 that it was closing down its local plant, the plaintiff - a tool maker - was faced with the need to find alternative sources of income, and sought the advice of the defendants. The advice was said to have constituted representations made in September 1992 and November 1992 as to there being a ready market were the plaintiff to manufacture specified numbers of automotive door closure units, and that the defendants encouraged the plaintiff to manufacture the door closure units as its new business product.
In order to market the door closure units a joint venture company was formed, the shareholders of which comprised not only trusts representing individuals associated with the plaintiff company but also trusts representing both the inventors of the product and also the first named defendant, who was the plaintiff's accountant (and whose company is the second named defendant). In essence, it was the plaintiff’s case, as originally pleaded, that on the basis of representations and advice as to the likely market for the product it incurred substantial costs, only to discover that the market did not exist to any substantial extent.
The proposed amendments now seek to plead, additionally, that negligent advice, of a kind similar to that originally pleaded and also of a quite distinct kind, was also given between February and May 1992, and that it was upon reliance upon that advice that the plaintiff incurred substantial costs. There are approximately 18 new representations identified in the proposed amendments and whereas with the original pleadings the plaintiff would have had to confront the difficulty that the negligent advice on which the action was predicated was made after the plaintiff had incurred the expense which represented its damage, now it will claim that this and other advice was given at a much earlier time.
The proposed amendments now plead a wide range of allegations, among which are the claims that the defendants gave advice when they had a conflict of interest (a claim made earlier, to some extent, but now expanded), suppressed from the plaintiff the fact that one of the proposed joint venturers was an undischarged bankrupt, concealed other important information from the plaintiff, and acted in breach of s. 232 of the Corporations Law.
The defence to the original claim was, in effect, that the plaintiff went into the business knowing as much about the commercial risks as anyone else, and incurred vast expense without authority and contrary to the advice of the defendants. The counterclaim relates to accounting work performed, and unpaid, for the plaintiff.
The writ was issued on 1 November 1995. In its defence to the original statement of claim the defendants pleaded that claims under the Trade Practices Act and Fair Trading Act were statute barred, not having been instituted within three years of the date the cause of action accrued.
It is accepted law in Australia that when an amendment is made to pleadings between existing parties then the amendment, once effected, dates back (or "relates back", as the concept is expressed in many cases) to the commencement of the proceeding: see Anglo Irish Beef Processors International v Federated Stevedores Geelong and Others 140 ALR 658, at 663, per Phillips JA (with whom Brooking and Charles JJA agreed). The principle has elsewhere been expressed in terms that the amendment takes effect from the date of the original document which it amends (see Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166, at 174-175), which in this case is the statement of claim, but the statement of claim and the writ are both dated 1 November 1995. The defendants' submission - that leave to amend should be conditional upon an order that the amendments only take effect from 30 October 1998 - is made so as to overcome the effect of the principle of relating back the date on which the amendment is deemed to take effect.
Mr Peters submitted that the vagueness of the proposed amendments to the statement of claim makes it unclear when the plaintiff is now alleging it suffered damage, and it may be that the plaintiff will seek to assert that it only suffered damage at a time after 1 November 1992, and, thus, its causes of action were only complete after that date. In other words, insofar as the plaintiff relies on common law claims in negligence and breach of retainer the six year limitation period may be argued not to have expired until a time after 1 November 1998, and accordingly amendments made at 30 October 1998 would not be statute barred.
However, Mr Peters submitted, the more likely situation would be that the defendants would have had a valid limitations defence to the new claims proposed in the latest amendments, provided that the defendants can submit that those claims were not brought until 30 October 1998. The problem for the defendants, however, is that by virtue of the fact that the new claims are introduced as amendments to an existing proceeding, they will be related back to the date of issue of these proceedings, unless I make an order preventing the operation of the principle.
The defendants would have had good prospects of success with their limitations defences, Mr Peters submitted, because the proposed amended pleadings alleged that negligent advice was given at times prior to 30 October 1992 and the pleadings appear to assert that the loss and damage consequent on that advice was primarily suffered at a time prior to 30 October 1992. Thus, the defendants would arguably have a good defence to those common law claims which are introduced in the latest amendments, and which carry a 6 year limitation period, had they been made in a writ issued at 30 October 1998, because they would then have been brought outside the six years limitation period. Mr Peters submitted that the defendants should not be denied the opportunity to advance such defences, and yet were I to simply allow the amendments and not declare them to operate only from 30 October 1998 then the amendments would be related back to the date of the writ, 1 November 1995, and the limitations defences would be lost. He submitted that to make the order in the terms he proposed would simply preserve the position on both sides and would enable the limitations defences to be argued at trial and be related to the facts of the case as they are proved on the evidence.
Section 34 of the Limitations of Actions Act 1958 (hereinafter referred to as "the Act") was introduced in 1986 for the express purpose of abolishing the effect of the rule in Weldon v Neal (1887) 19 QBD 394 whereby Lord Esher M.R. held, at 395, that, as a general rule, an amendment should not be allowed to a pleading if the effect of that would be to allow a plaintiff to take advantage of the relating back of an amendment to the original writ so as to introduce a new cause of action which would have been statute barred had it been issued without the benefit of the original writ. Section 34, under the heading of "Abrogation of rule in Weldon v Neal (1887) 19 QBD 394" reads as follows:
"34(1) If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in any proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.
(2) This section does not apply to an amendment in a proceeding
commenced before 1 January 1987."
Section 34 is to be read in conjunction with Rules 36.01(1),(3) and (6) of the Supreme Court Rules. The general power of amendment under Rule 36.01(1) permits amendment, inter alia, for the purpose "of determining the real question in controversy between the parties to any proceeding, or of avoiding multiplicity of proceedings". Rules 36.01 (3) and (6) then provide:
"(3)
An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
(6) The Court may, notwithstanding the expiry of any relevant limitation period after a day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise."
Mr Peters submitted that I could avoid the effect of the relating back principle by couching my order in terms that the amendments are deemed to take effect only from 30 October 1998, and therefore I would preserve the defendants' opportunity to argue at trial that any new claims which had a 6 year limitation period and which accrued before 30 October 1992 would, prima facie, be statute barred. Mr Peters submitted that I had power to make such an order allowing the amendments on such terms.
In my opinion, once I am satisfied that allowance of the amendments would permit the parties to litigate the true matters in controversy between them, then s. 34 compels me to allow the amendments if the only reason for not doing so is the fact that the limitations defence would be lost. The section speaks of prejudice which cannot be met by an adjournment or by costs, and I respectfully agree with Beach J that whilst s. 34 creates an anomalous situation, because the prejudice of being deprived of a limitations defence can not be met by an adjournment or a costs order, the section would be rendered meaningless were that prejudice to then prevent the amendments being made: see Pyramid Building Society (In Liquidation) v Farrow & Ors , unreported 30 April 1993, Beach J at pp. 4-5, and In the Matter of W.M. Train & Co Pty Ltd, unreported, 24 January 1995, Beach J at pp. 3-5. The fact that s. 34 apparently compelled allowance of amendments in such circumstances was agreed to by Smith J in Murphy & Allen v Burns, Philp Trustee Co Ltd (In Liq), unreported, 7 May 1993, at pp. 29-30.
The only prejudice which Beach J regarded as being encompassed in s. 34 by the words "conduct of his claim or defence" was prejudice other than loss of a limitations defence, such a matter, for example, as the fact that an important witness had died.
Mr Peters submitted that his clients did suffer prejudice over and above the loss of their limitations defences if the court had regard to claims other than those which had their limitations period imposed by the terms of the Limitations of Actions Act. His clients suffered an additional prejudice because the doctrine of relating back the amendment to the date of the writ would also deny to them any defence which they might have to claims which had their limitations periods imposed otherwise than under that Act.
Mr Peters submitted that s. 34 only applied to limitation periods which were introduced by the Limitations of Actions Act 1958, itself: see Keller v Bayside City Council [1996] 1 VR 356, at 375. per Batt J. That decision was noted, without adverse comment, but without the question being determined, by the Court of Appeal in Anglo Irish Beef Processors International supra, at 662, per Phillips J.A. That being the case, then s. 34(1) would have had no application to any claims under the Trade Practices Act, the Fair Trading Act or under the Corporations Law, which do not take their limitations periods from the Act.
Mr Peters submitted that were I not to make an order which specified 30 October 1998 as the date of operation of the amendments then insofar as the amendments introduce new causes of action which were not given their limitations period by the Act - for example claims brought pursuant to the provisions, and subject to the limitation period set by s. 82, of the Trade Practices Act, then I would in effect deny to the defendants the limitations defence which the Commonwealth legislation specifically provides to them. That would be so because unless I declared the amendments to apply only from 30 October 1998 the commencement of those claims would also be related back to the date of the issue of the writ. Mr Peters submitted that unless there was clear legislative provision to permit such a right to be lost merely by virtue of an amendment to existing pleadings then I should decline to make an order which would have that effect : see Wardley Australia Ltd v Western Australia [1992] 66 ALJR 839, at 858, per Toohey J.
The suggested distinction between causes of action which have their limitation period set by the Act and other causes of action might have relevance to the question of whether a discretion remained in the court to refuse an application for amendment of pleadings insofar as those pleadings introduce causes of action which do not have their limitations periods fixed under Part 1 of the Act. In my opinion, however, the distinction would not have any impact on the question whether the principle of relating back should or would equally apply to causes of action whether or not they are identified in Part 1 of the Act. In any event, as a practical proposition, given that the limitation period is 3 years under the Trade Practices Act, it is unlikely that any limitations defence would be lost by virtue of the operation of the principle of relating back any new claims under that Act to 1 November 1995. In all likelihood, such claims would be out of time, by that date, in any event.
Mr Peters did not seek to press his argument so as to contend that because the proposed amendments included some new claims which had limitations periods imposed otherwise than under the Act, then I should refuse to allow any of the proposed amendments at all. Nor did he seek to argue that it would be appropriate to allow some amendments, but not others, according to the origin of their limitation period. In part, his reticence was no doubt due to what he submitted was the vagueness of the claims encapsulated in the proposed amendments, but also, no doubt, he recognised that it would be realistic to expect that the arguments advanced in favour of allowing the amendments - based as they were on the necessity that all issues in contention be disposed between the parties - would, if accepted, mean that all of the amendments should be permitted, or, if rejected, then none at all. So rather than press for the disallowance of some, only, of the amendments, Mr Peters submitted that the appropriate course to adopt, until the nature of the claims made in the amendments became clearer, was to order that the amendments would take effect only from 30 October 1998.
This brings me back to the question whether - once I have concluded that but for the impact the amendments will have on any limitations defences they should be allowed - I have any discretion which would enable me to preserve any limitations defence by the device of declaring that the amendments date from a time different to that which would be the case by virtue of the doctrine of relating back. Mr Loewenstein submitted that I had no power to abrogate the relating back effect of the amendments in this way, and that having concluded that the amendments should otherwise be allowed I am obliged by s. 34 to make the appropriate order permitting the amendments.
As to the existence of such a discretion Mr Peters referred me to a number of authorities, including the South Australian decisions Brook v Flinders University of South Australia (1987) 47 SASR 119, a decision of von Doussa J and Duke Group Ltd (in liq) v Pilmer and Ors (1993) 60 SASR 29; 27 ACSR 1, a decision of Mullighan J.
In Brook, von Doussa J had regard to the effect of s. 48 of the Limitation of Actions Act 1936, which was in very different terms to s. 34 of the Victorian Act. The South Australian section gave to the court a discretion to extend a limitations period in certain circumstances and the Rules permitted the court to allow amendments to pleadings "on such terms as may seem just". There was no equivalent South Australian provision to s. 34(1) and there were significant differences in the terms of the South Australian rules in contrast with R. 36.01. Likewise, in Duke Group similar sections were involved, and in any event, although Mullighan J acknowledged the correctness of the decision in Brook, he did not adopt a similar course.
Von Doussa J held, at 125-126, in Brook, that the courts could modify the effect of the relation back concept in appropriate cases, but, in my view, notwithstanding the fact that the relevant rules and section dealt with in the South Australian cases were also part of a scheme to ameliorate the effect of Weldon v Neal the significant differences between the terms of the South Australian section, and rules, and those which apply in this State suggest that caution must be exercised before identifying a similar discretion in our legislation and rules to that identified in South Australia.
Von Doussa J was applying a rule (R 53.01(c)) which permitted an amendment to be made “at any time with the leave of the court on such terms as may seem just.“ His Honour agreed with the reasoning in Liff v Peasley [1980] 1 WLR 781, at 803-4, in which it was said that there was no inherent virtue in the relation back principle, and he held that the discretion given by R 53.01(c) could be applied so as to nominate a later date for commencement of the amendment where the interests of justice made it appropriate. But as Moffit P observed in Proctor v Jetway Aviation Pty Ltd, at 175, the relating back principle was long-standing and was basic to the operation of the equivalent rule in New South Wales to R 36.01(6). Those rules were intended to overcome the past technicalities which had developed because of the problems created by Weldon v Neal.
The relevant rules in New South Wales were much closer in their terms to the relevant Victorian rules than was the case with the South Australian rules. Moffit P held that there was nothing in the equivalent New South Wales rules which displaced the relating back principle and I, likewise, can see no evidence of the intended displacement of that principle in R. 36.01. If the power or discretion exists to modify the effect of the relating back principle then R. 36.01 does not expressly articulate it.
The power of a court to allow amendments and to declare that they came into effect differentially, so as to preserve possible limitations defences for later argument at trial has been recognised in a number of cases to which I was referred: see Middleton v O'Neill (1943) SR (NSW) 178, at 186, Thompson v Pacific Acceptance Corporation Ltd (1962) 80 WN (NSW) 773, at 778; being two of the cases cited in Brook v Flinders University, supra at 126, per von Doussa J. The fact that the invariable rule that amendments relate back to the date of the writ may be varied by order of the court is recognised, too, by the learned author of Williams "Civil Procedure" at paragraph 36.01.20, but no authority is cited for that proposition. Having examined those cases, however, and as Mr Loewenstein observed, they all (with the exception of the South Australian case of Brook) pre-date the introduction in Victoria of s. 34, or the amendment of the rules which were made in many jurisdictions so as to overcome Weldon v Neal. I will return to this point, later. I was not referred to any decision of this Court where such an order was made to abrogate the relating back principle, whether temporarily or permanently, as that which Mr Peters contends should be made by me in this case.
I have said that I do not see any express indication in the rules that it was intended that the relating back principle should be abrogated in the way which it is suggested I should order. It may be said, however, that unlike s. 34(1), which leaves no discretion to the court once it is concluded that the amendment should be allowed, R. 36.01 is couched in terms which might more readily support the conclusion that the court retains a sufficiently wide discretion in its approach to an application to amend proceedings so as to permit the course which Mr Peters submits ought be taken.
The operation of the rules, unlike the legislation, is subject to significant qualifications. Thus, Rule 1.14(1)(b) provides that in exercising any power provided by the Rules the Court shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined, and sub- paragraph (b) of that Rule provides that the court may give any direction or impose any term or condition it thinks fit. The Rules are not intended to impose any fetters on the existing discretions of judges of the Court. Indeed, by R. 2.04 the Court can dispense with compliance with any rule. I would, therefore, be slow to conclude that a discretion which has been identified by Supreme Courts in other jurisdictions does not exist in this Court.
However, as I have noted, above, both R. 36.01 and s. 34 are predicated on the fact that the principle of relation back will apply. The Full Court in New South Wales in Proctor held, in 1984, when considering a similar rule to R. 36.01(6), that the rule did not displace the relating back principle. The fact that there is, additionally, the legislative provision of s. 34 in this State only emphasises the continued existence of the relating back principle. In Brook v Flinders University von Doussa J, at 126, cited three New South Wales decisions as providing support for his conclusion that he had power to order that the amendments only operate as from the date that they were allowed, and, thus, not relate back. I have mentioned two of those cases already: Middleton v O'Neill and Thompson v Pacific Acceptance Corp. Those cases were both decided before the amendments to the rules and amendment to both the Limitations Act and the Supreme Court Act in New South Wales came into effect so as to address the problems created by Weldon v Neal. The third decision which von Doussa J cited, and which was decided after those changes had occurred, was Chapple v Laming [1981] 2 NSWLR 765, a decision of Hunt J. In that case Hunt J considered the effect of the legislative and rule changes and concluded, at 767, that he could make a similar order to that made in the earlier cases, so as to avoid the operation of the relating back principle. But that decision was overruled by the Court of Appeal in Proctor v Jetway Aviation, to which I earlier made reference. Moffit P. held at 174, that Hunt J had expressly failed to follow a Court of Appeal decision (Baldry v Jackson [1976] 2 NSWLR 415, at 419) which emphasised that the relating back principle continued to apply after the legislative and rules changes were introduced. As I noted earlier, Moffit P held that the continued operation of the relating back principle was an integral factor in the legislative and rules changes. In Lynch v Keddell (No. 2) (1990) 1 Qd.R. 10 at 18, per Macrossan C.J. and at 21 per Derrington J, the Full Court of Queensland held that the avoidance of the rule of relating back by the device of making an order declaring that the amendments only operated from the date the amendments were allowed could only happen when a new defendant was being joined, not when new causes of action were being introduced in proceedings against the existing defendant. It is to be noted, however, that the Queensland rules had some significant departures from the Victorian and New South Wales equivalents.
Thus, although courts have on occasion made orders declaring that amendments take effect at a time which defeats the principle of relation back, no such case has been cited, apart from Brook, which deals with similar legislation or rules as apply here, which rules and section came into effect specifically to attend to the rule in Weldon v Neal, but to do so whilst leaving intact the principle of relation back.
I considered the proposition that the operation of the relating back principle might arguably be confined only to those causes of action to which Part 1 of the Act applied, given that s. 34 and R. 36.01 formed part of a scheme for the amelioration of the effect of Weldon v Neal.
It might be contended that because s. 34 only applies to causes of action identified in Part 1 of the Limitations of Actions Act then I would be entitled to make a declaration as to the date of taking effect of causes of action other than those identified in Part 1 of the Act. But there would be both practical and legal difficulties in adopting that course.
In the first place, were I to differentiate as to the dates on which different claims under the amendments should take effect that might be thought to have the potential for confusion at trial.
Were I to adopt that course, then in a case such as the present - where many of the claims rely on identical facts but plead different causes of action - the trial judge might have to differentiate in his or her reasons for decision or in making orders so as to clearly acknowledge that claims dated from different times and not all from the same date, namely, the date of the writ. I do not consider that this difficulty is a significant one, however. The reasons for judgment will invariably delineate the different claims, in any event. I am not persuaded, however, that the operation of R. 36.01, and my conclusion that it was intended to operate whilst the doctrine of relating back continued to apply, leaves room for a discretion which in effect abrogates that very principle.
A second problem in differentiating between different causes of action, as to their commencement date pursuant to the amendment of the pleadings, is that whilst s. 34 may be confined in its operation to causes of action identified in Part 1 of that Act, R. 36.01(6) - which is part of a scheme to overcome the effect of Weldon v Neal - is not so confined. Even if it is the case that limitations defences under Commonwealth legislation may not be defeated by s. 34 the principle of relating back still equally applies to both causes of action under Commonwealth law and common law causes of action.
I can see no basis, therefore, for concluding that I have power to abrogate the intended operation of s. 34 and/or R. 36.01 by the device of declaring that the amendments do not take effect before 30 October 1998, However, notwithstanding the lateness of these amendments and the failure to offer any reasonable explanation for their delay (save for the fact that new counsel came into the matter shortly before trial) even if I do have such power and discretion, I am not persuaded that I should exercise such a power in the manner proposed. Were I to do so the effect of so doing would be, in my view, the denial of the operation of the principle of relating back which was intended to have continuing vitality when R. 36.01 was applied.
I have concluded, therefore, that I should allow the amendments subject to the proposed solicitor-client costs order but that I should not make the additional order which has been urged upon me by Mr Peters.
Counsel for the parties have generally agreed upon the terms of my proposed orders, which flow from my announced decision that I would order that the case be taken out of the list to be re-fixed for hearing. I will canvass the terms of my order with counsel, but it will be necessary to add to the minute of proposed orders the order that the plaintiff will pay the costs thrown away by the defendants by virtue of the adjournment of the trial, including the costs of argument as to the terms of the orders which I should make, such costs to be payable on a solicitor-client basis.
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