Rowan v Cornwall & Ors (No 4) No. Scciv-90-1481

ROWAN v CORNWALL & ORS (No 4)
[2001] SASC 348
Civil

DEBELLE J. The plaintiff applies pursuant to Rule 53 to amend the statement of claim to include a new paragraph to follow immediately after the existing para 5. The application is made after all parties have led their evidence and closed their respective cases in the course of submissions. The plaintiff seeks to add a paragraph in these terms:
“The Review Committee was a joint Commonwealth and State of South Australia committee set up to advise both governments. The Commonwealth and the State of South Australia were jointly and vicariously liable for the torts of the Committee and of the Chairperson of the Committee acting in that role.”
The application is made in the following circumstances.
In this action, the plaintiff pleads a number of causes of action arising over the publication of a report called “Shelters in the Storm” and the circumstances surrounding the publication. The report had been prepared by a Review Committee. After the close of evidence and in the course of submissions, the Commonwealth defendant discovered an agreement made between the Commonwealth of Australia and the State of South Australia in respect of a program which in these proceedings has been called the Supported Accommodation Assistance Program (“SAAP”). Mr Stanley, counsel for the Commonwealth defendant, tendered the document with the consent of all parties. The agreement is made pursuant to the provisions of the Supported Accommodation Assistance Act 1985. The agreement provides in clause 8 sub-clause (7):
“The Commonwealth and each State shall jointly review the State’s program at such times and in such manner as are agreed upon by the Commonwealth Minister and the State Minister.”
One of the issues in this action is whether the Review Committee was a Ministerial Advisory Committee within the meaning of s 11 of the Community Welfare Act 1972. The question whether it was a Ministerial Advisory Committee is relevant, among other things, to the question whether it was possible for the Review Committee to be subject to a duty of care and, if so, whether such a duty of care existed. It is also relevant to the question of liability, given that s 235a of the Community Welfare Act provides an immunity for members of a Ministerial Advisory Committee from civil liability.
Central to the submissions of the Commonwealth has been the question whether the Review Committee was a Ministerial Advisory Committee. Indeed, from the very outset of this case, the Commonwealth has made it clear that that question was central to its case, notwithstanding that it was not pleaded.
The agreement between the Commonwealth and the State of South Australia relating to SAAP (“the SAAP agreement”) was, on any view, a discoverable document. There can be no doubt on that issue. It was discoverable because it is relevant to the question as to the nature of this Review Committee. It is relevant to the question whether the Committee was a joint committee under the SAAP program or some other kind of committee or, indeed, whether the Committee was, as the Commonwealth contends, a Ministerial Advisory Committee. It is sufficient to say that, as the Commonwealth was contending that the Committee was a Ministerial Advisory Committee within the meaning of s 11 of the Community Welfare Act, this document was discoverable.
The plaintiff’s application to amend arises out of the late discovery of this document. It is fair to say that the application may also stem from other causes, but there is little question that the late discovery of this agreement has been a significant factor in causing the plaintiff to make this application to amend.
Plainly, the application to amend is being made at an extraordinarily late stage in the course of this trial. Notice of this application was given after the submissions by the State defendants had been completed but before all other submissions. The application itself was argued after submissions of all defendants had been completed. The fact that the application is made at this late stage does not, standing alone, mean that it must be refused. An application to amend may even be made and be granted as late as the hearing of an appeal.
The predominant issue, indeed the guiding principle, by which the court must consider whether, in the exercise of its discretion, it is proper to allow this application to amend must be whether the interests of justice are better served by allowing or dismissing the application: see Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478.
In considering this application, I have also had regard to the observations of Lord Griffiths in Ketteman v Hansel Properties [1987] 1 All ER 38; [1987] 2 WLR 312; [1987] AC 189 at 220 where his Lordship said:
“Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and, in my view, a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.
Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. He can no longer afford to show the same indulgence towards the negligent conduct of litigation as was possible in a more leisured age.”
Insofar as those observations refer to the strain imposed on litigants and in particular a personal litigant, they have no present force, given that this application to amend is made by the plaintiff, herself a personal litigant. That having been said, it must not be overlooked that other defendants in this matter are personal litigants and no doubt this litigation is a strain upon them. My intention is to do no more than state that this particular plaintiff, who has herself conducted the predominant part of her litigation, has to bear a greater strain than any other personal litigant.
The issues of case management to which Lord Griffiths refers are not factors which should override the overall interests of justice. As the High Court observed in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154:
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
Later, the Court said (at 155):
“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence thus precluding the determination of an issue between the parties.”
I repeat the overriding considerations are the interests of justice. It is also relevant to consider whether the amendment permits a correct issue to be decided or whether it introduces a fresh cause of action.
In my view, this application essentially seeks to clarify an issue to be determined in respect of the question as to the status of the Review Committee. It does not, in the ordinary sense, plead a fresh cause of action, although I acknowledge that it introduces a fresh ground of liability insofar as the Commonwealth is concerned in that it seeks to make the Commonwealth, along with the State of South Australia, vicariously liable for the actions of the Review Committee.
The issue which the plaintiff seeks to canvass by this amendment is one of several issues which are central to the determination of this action. In particular, it affects the question whether the Review Committee was, as I have said, a Ministerial Advisory Committee or whether it was a joint committee established pursuant to the agreement between the Commonwealth and the State of South Australia. Thus, the issue is central to the issues in this action. I repeat, it is very relevant to the liability of the Commonwealth.
The amendment is occasioned by a failure of at least the State or the Commonwealth defendants to discover a document which ought to have been discovered a long, long time ago. It was difficult to understand why it was not discovered, given the issues which the Commonwealth seeks to canvass and the fact that the document relates to the SAAP scheme and, indeed, is central to the SAAP scheme upon which so much attention in this trial has been focussed. The failure to discover the SAAP agreement is the more difficult to understand because as long ago as September 1994 Duggan J noted in the course of ruling on strike out applications made by the defendants that the question whether the Review Committee was a Ministerial Advisory Committee was a matter to be established at the trial. The failure to discover the SAAP agreement was a serious oversight.
In the course of his submissions opposing the application, Mr Stanley referred to the fact that to allow the amendment at this late stage will require further evidence. It will. That ordinarily is an issue which would cause a court to be very slow to exercise its discretion in favour of allowing an application to amend at such a late stage in a trial. However, the issues to which the evidence will be directed will be in a very narrow compass. Although it may be necessary to call several witnesses, the evidence which they would give would focus only on those issues. It will inevitably cause delay, particularly as an important witness, the former Senator Grimes, may have to be called and it has not been possible for those representing the Commonwealth yet to contact him. Because the evidence is in a narrow compass, the fact that the evidence will have to be reopened is not, I think, a factor mitigating against allowing this application.
In any event, the party who seeks to call this evidence is the party who failed to discover the document. Such prejudice as the Commonwealth will incur must be weighed against its failure to discover the document. The Commonwealth cannot complain for having to endure the consequences of its own default.
I have regard also to the fact that Mr Stanley has commitments which will prevent him from being able to represent the Commonwealth hereafter in this action and to adduce the evidence on this issue. Regrettable as that is, I do not think that it is a factor which should weigh heavily in the overall balancing of the factors in this matter. I say that especially because the issues are in such narrow compass. The Commonwealth has retained junior counsel in this matter who can, if necessary, deal with the limited nature of the issues which will arise from the amendment.
Because of the lateness of the application, my initial reaction was to refuse it. However, on further reflection, the issues which the plaintiff seeks to canvass are central to the issues in this action and, in particular, central to the defence of the Commonwealth.
I repeat the overall consideration must be the interests of justice. I therefore allow the application. I will hear the parties as to the consequences of the application. I will also hear the parties as to the costs occasioned by it.

[2001] SASC 348

11 October 2001