Re Bond, a Ex parte Ramsay, R.E.

[1993] FCA 255

155 , 1443

JUDGMENT NO. o. . .oo . . *oe*m*mmeaa.

IN THE 'FEDERAL COURT OF AUSTRALIA	)
GENERAL 'DIVISION	)
BANKRUPTCY DISTRICT OF THE	) No NB 1071 OF 1992
STATE OF NEW SOUTH WALES	j

RE :  ALAN BOND

EX PARTE: ROBERT EASTAUGH RAMSAY

(The trustee of the property of

Alan Bond, a bankrupt)

Applicant

DELORES JEAN CABOCHE

First Respondent

PETER NOMMEL GLEESON

Second Respondent

JOHN BOND

Third Respondent

CRAIG BOND

Fourth Respondent

SUSANNE BOND

Fifth Respondent

JODY BOND

Sixth Respondent

EILEEN BOND

Seventh Respondent

ALAN BOND

Eighth Responden

CORAM :  HILL J

PLACE : SYDNEY 2 9 APR 1993

under a superannuation fund to Mr Bond, became property vested	the question whether a benefit, otherwise apparently payable
in Mr Ramsay, the trustee of Mr Bond's bankrupt estate. I dealt not only with issues of liability but also with the question of the costs to that point of time and stood the matter over to a date to be fixed, on which date I directed that counsel for Mr Ramsay should bring in a draft of short minutes of order to give effect to my reasons.
Although the orders made by me contemplated the making of short minutes of order to give effect to the judgment, probably in the form of declarations, I ultimately took the view that it was not appropriate for those declarations to be made, pending the final argument between the parties on the question of preserved benefits under the Regulations.
When the matter resumed for hearing this morning, counsel for the first and second respondents sought leave to amend the defence of the first and second respondents by
the time of execution of the deed dated 5 October 1990, and of adding two new paragraphs. These paragraphs allege that at the deed dated 19 July 1991, there had been an agreement reached between the trustees of Mr Bond's superannuation fund and Mr Bond, to the effect that any benefits that might then have been payable to Mr Bond under cls.9 or 14 of the Trust Deed should be retained by the trustees and dealt with by them as if Mr Bond had neither retired from the employment of an employer nor ceased to be in the employment of an employer.
The particulars to each of the proposed new clauses state that the agreements pleaded are to be inferred from various documentary sources, most of which are in evidence.
I t seems that perhaps one letter referred to in the
particulars has not yet been tendered. The question is whether in these circumstances the amendments should be permitted to be made, at what is clearly a very late stage, in the discretion of the Court.
Counsel for the first and second respondents referred me to the decision of Barton J in Shannon v (1912) 15 CLR 257, particularly at 260-1 where his Honour referred to Tildesley v Harper (1878) 10 Ch.D 393 at 396 and Cropper v Smith (1884) 26 Ch.D 700. In the latter case, Bowen LJ, albeit in dissent, said (at 710):

DATED : 31 MARCH 1993 AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT REGISI-

On 30 November 1992, after two days of argument, I gave judgment in this matter on all matters then in issue between the parties, save as to the effect of the Occu~ational

Superannuation Standards Reaulations ("the Regulations") on

"Now, I think it is a we11 established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in

otherwise than in accordance with their	the conduct of their cases by deciding
rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of
favour or of grace. "

That case appears to have been one where the amendment sought arose in a fresh trial after a new trial had been ordered. The question of amendment clearly did not arise after judgment had been given. In any event the guiding principle in the passage quoted is that an adjournment would be granted provided that so to do does not cause injustice.

The present application is not dissimilar to the application brought by Hyster Australia Pty Ltd in the matter of Hvster Australia Pty Ltd v The Anti-Dum~ina Authoritv (unreported, Hill J, 19 March 1993). In that case, I drew attention to the competing interests involved - on the one hand, the finality of litigation in a case where argument had taken place and judgment had been given but no orders had been entered, and on the other, the public interest enshrined in the Federal Court Act 1976, namely that all matters in controversy between the parties should be heard and determined.

In that case also, I pointed out that at the very least an adjournment would be granted if the matter were one which an Appellate Court would have permitted to be argued. In other words, it is clear enough that if the matter merely involved a new issue of law which could be argued on the facts before the Court, then an adjournment would clearly be in the interest of all parties, so that if the matter went on appeal an Appellate Court could have at least the benefit of the views of the judge at first instance. Where more than a mere question of law is involved, it seems to me that the principle to be looked at is whether the proposed adjournment would be such as to cause, or be likely to cause, prejudice to the party opposing it and in circumstances where that prejudice might not be avoided by a simple cost order or adjournment.

That principle must, nevertheless, be seen in the light of the general public interest in the finality of litigation.

Counsel for the applicant says, quite properly, that the natural witnesses to determine whether or not there was in fact an agreement between Mr Bond and the trustees at a relevant point of time would clearly be the persons between whom that agreement is said to have been reached, in this case the trustees and Mr Bond. It seems that Mr Finkelstein, senior counsel for the first and second respondents, did not

propose to call any of these persons. No doubt if the	amendment were allowed a question might arise as to what
inference, if any, might be drawn from the failure to call them. But more significantly, for present purposes, these witnesses are, it can fairly be said, all in the camp of the first and second respondents.
If instead of an amendment at this late stage the issue had been pleaded in the original defence, the applicants would have had the opportunity of interrogating the trustees and Mr Bond. Indeed on other matters it seems interrogatories were administered and answered. It may well be that the administration of those interrogatories might have elicited material inconsistent with an agreement otherwise to be inferred from correspondence or documents, one does not know. The significant point is that the amendment proposed is one in respect of which evidence could be adduced and in respect of which that evidence might well be adverse to the case which is proposed now to be made.
Counsel for the first and second respondents sought to argue in mitigation of this point that this prejudice could be resolved instanter by interrogatories being prepared today, administered today or tomorrow and the matter then heard immediately thereafter. With respect, I do not think the matter can be quite so simply dealt with in a way that would be fair at least to counsel for the applicant and the
applicant himself.
It seems to me that the present is a case where the proposed amendment has come at a point of time too late in the proceedings. Were the amendment to succeed and the point be argued, no doubt the first and second respondents would seek to persuade me in due course that the result would be to set totally at nought the judgment delivered 30 November 1992 after the first and second respondents had had the opportunity to argue the matter fully and at which the applicant would have had the opportunity to explore in evidence, if need be, the matters now sought to be raised for the first time.
In my view it would be unjust to the applicant to permit the amendment to be made and, having regard to the public interest in flnality of litigation and in the exercise of my discretion, I would refuse the leave.
Accordingly, the motion moved instanter for leave to amend is formally dismissed but I make no order as to costs.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of hls Honour Mr Justice Hill.
Associate: l-cC..f 7*
Counsel and Solicitors

F M Douglas QC and S M P Reeves

for Applicant:	instructed by Mallesons Stephen Jacques
Counsel and Solicitors	R Finkelstein QC and
for First and Second	R Beech-Jones instructed by
Respondents:	Neil Lawson & CO
Counsel and Solicitors	D H Murr instructed by
for Third to Eighth	Summers Partners
Respondents:
Date of Hearing:	31 March 1993