Paul v Citigroup Pty Ltd - [2010] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PAUL -v- CITIGROUP PTY LTD & ORS [2010] WADC 65

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 21 APRIL 2010

DELIVERED : Delivered Extemporaneously on 21 APRIL 2010 typed from tape and edited by Principal Registrar

FILE NO/S: CIV 1405 of 2008

BETWEEN: LILA PAUL
Plaintiff
AND
CITIGROUP PTY LTD (ACN 004 325 080)
Defendant
OLIVE BANUMATHI PAUL
First Third Party
FRANCIS MIRANDAH
Second Third Party

Catchwords:

Pleadings - Late application to amend

Legislation:

Nil

Result:

Leave to amend granted

Representation:

Counsel:

Plaintiff:     Mr J A Robertson
Defendant:     Mr C S Gough
First Third Party           :     Mr B H Taylor
Second Third Party       :     Mr B H Taylor

Solicitors:

Plaintiff:     Williams & Hughes
Defendant:     Minter Ellison
First Third Party           :     Talbot & Olivier
Second Third Party       :     Talbot & Olivier

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd No 5 (1997) 18 WAR 334
Paul v Citigroup & Ors [2010] WADC 4
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
State of Queensland v J L Holdings (1997) 189 CLR 146
Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: The application before me is pursuant to a chamber summons filed on 9 April 2010 by the defendant seeking leave to amend the defence and the statement of claim in the third party proceedings.
In relation to the amended defence, the relevant minute is that dated 21 April 2010. In relation to the third party proceedings, the relevant minute is that dated 30 March 2010. In an earlier decision reported as Paul v Citigroup & Ors [2010] WADC 4, I set out the factual background to the action, and I adopt that for present purposes and do not propose to repeat it.
I deal first with the application for leave to amend the defence. The plaintiff raises, essentially, three grounds of objection to the amendments. The first is pleadings related amendments in terms of breaches of technical rules; the second is an assertion that part of the amendments do not disclose a reasonable cause of action; and the third is the general discretionary considerations in light of the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Dealing with the technical pleading issues, as the argument progressed, the plaintiff's objections seemed to coalesce into requests for further particulars of certain of the paragraphs, namely:
(a)that the defendant provide complete particulars to par 2(c);
(b)in relation to proposed par 10(h), the defendant provide particulars as to the specific form of the request made by Mr Miranda;
(c)in relation to proposed par 10(j), the defendant specify the name of the Citibank Singapore employee; and
(d)particulars to par 12 which contains a plea referring to certain terms and conditions.
There was then some argument as to par 11 of the minute of amended defence which is in the following terms:
"By reason of the plaintiff's express or alternatively implied consent to the opening of the account (as pleaded above) the plaintiff agreed to be bound by the Citibank Plus product features, terms and conditions (the terms)."
The plaintiff was of the view that the cross-referencing was insufficient to allow it to know the case it has to meet and at the very least the word "above" should be replaced by specific cross-references. The defendant asserted that the words "as pleaded above" should simply be removed.
In my view, the plaintiff is entitled to more concrete particulars or a more concrete or specific understanding of the basis on which par 11 is drawn. There should, at the very least, be a reference to the relevant paragraphs of the defence. If needs be, there should also be a reference to paragraphs in the third party proceedings which form the factual basis from which the consent is drawn.
There has been an issue in the action as to the appropriateness of a defendant cross-referencing its pleading to pleadings in the third party action. The reality in this situation, where the bank sits in between, effectively, two claimants on a pool of money, is that the bank has inferior knowledge to the parties. It would seem to me, in that situation, that it is entirely appropriate for the bank to cross-reference its pleading to the pleadings in the third party proceedings. The key point is that whatever reference is used by the defendant clearly flags to the plaintiff the ambit of the factual material to be used in the finding set out in par 11.
The second basis of objection was that the proposed par 11 to par 15 do not disclose a reasonable cause of action. In my view, the paragraphs at least arguably disclose a cause of action that the plaintiff is bound by the terms of the non‑cash payment facility, in particular the indemnity. The key issue is one of fact, being whether or not the nature of the express or implied consent to the opening of the account, which is at the heart of the action, was sufficient to make the plaintiff bound by the relevant terms.
The third issue is the one of discretion. In looking at late amendments to pleadings, the authorities direct me to consider four factors. The four factors are:
(a)the reasons for delay in making the application;
(b)the prejudice to the defendant if leave is not granted;
(c)the prejudice to the plaintiff if leave is granted; and
(d)the impact on the public interest if leave is granted.
The relevant authorities are: Aon (supra); State of Queensland v J L Holdings (1997) 189 CLR 146; Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290; Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd No 5 (1997) 18 WAR 334 at 345; and Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323.
The reasons for delay in making the application are set out in an affidavit of Kirsty Yeoh (an employee of the defendant's solicitors) dated 8 April 2010 filed in support of the application. In essence, as I interpret the affidavit, the reason for the delay was that the parties were engaged in a mediation conference in court, which took place on 11 March 2010, and the parties wished to exhaust every prospect of settlement before doing this further work.
The other factor that goes into the delay melting pot is that from my overall conduct of the file and understanding of the issues from various directions hearings, there have been difficulties obtaining evidence from Citibank in Singapore, largely due to the fact that they are independent of the defendant. The amendments are largely based on a proposed witness statement of a Citibank Singapore employee, Jeremiah Tan, which I am told is able to be filed imminently.
Going then to the prejudice to the defendant if the leave is not granted, that prejudice is that the defendant will not be able to pursue its case at its strongest. There is, in particular, the nature of the factual allegations as set out in par 10 would were not able to be advanced by the defendant.
It seems to me that the outcome that will be of most benefit to the trial judge is for the entirety of the factual allegations to be completely canvassed by all parties so that the trial judge can discern where, for want of a better term, the truth lies.
The prejudice to the plaintiff if the leave is granted is firstly that it has already filed its witness statements. This prejudice can be dealt with by granting the plaintiff leave to adduce further evidence at trial in relation to the amendments.
In terms of the key factor identified in Aon, which is risk to the trial dates, the argument was not pressed before me that if I grant leave, the trial dates would be prejudiced. In my view, given the nature of the factual inquiries that are likely to be thrown up as a result of the amendments, these are matters within the knowledge of the plaintiff or her husband, they are not matters which are going to take an inordinate amount of time to take instructions on.
If I am wrong, and for some reason there is an issue which causes the trial dates to be prejudiced, then it is open for the plaintiff to make an application to vacate the trial dates or push them back on the basis of further inquiry or the basis of difficulties occasioned by the amendments. On the material before me, those difficulties are, as yet, hypothetical and I do not see any risk of the trial dates being imperilled.
The other prejudice to the plaintiff is the need to amend her reply. Leave to do that would be granted as a matter of course.
The final factor is the impact on the public interest if leave is granted. To my mind, in all the circumstances of the case, if leave is granted, it is not an outcome which would cause confidence in the court system to be undermined. In particular, it seems to me that one crucial reason for the amendment is to enable the litigation to be fought out on the true facts. That was a factor given some weight as being a reason for granting the amendment by the Supreme Court in Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 241. Further, it seems to me that the amendments do not extend, in any material way, the factual ambit of the action. That also is a factor weighing in favour of the grant of leave: Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 at par 21.
It seems to me that the nature of the banking relationship or the bank accounts in Singapore from which funds were transferred through to the Australian accounts was always going to be an issue in the action. What the amendments do is to crystallise the defendant's position in relation to those issues, which will ultimately be for the benefit of the parties in having a well‑defined trial.
For those reasons, I propose to grant leave in relation to the application for leave to amend the defence.
As to the application to amend the statement of claim in the third party proceedings, the third party's position was neither to oppose, nor consent to, the application. This was subject to granting further particulars of opposed par 14 of the minute of proposed amended statement of claim in third party proceedings.
Taking the general discretionary considerations that I have already set out above, I propose to allow the defendant to amend the statement of claim in the third party proceedings, subject to the provision of particulars to par 14. I will hear from counsel in relation to the final orders.