Saadat v Commonwealth of Australia & Ors - [2019] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SAADAT v COMMONWEALTH OF AUSTRALIA & ORS
[2019] SASC 28
Reasons for the Orders of The Honourable Justice Stanley
1 March 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
The trial of this matter was listed to commence on 11 February 2019 for a period of 12 weeks. In December 2018 the plaintiff brought an interlocutory application seeking to amend his statement of claim. In January 2019 the plaintiff brought an interlocutory application for permission to rely at trial upon the expert reports of psychiatrists Dr Craig Raeside and Dr Patrick Flynn. At the hearing of these applications in February 2019, the plaintiff sought an adjournment of the trial. These applications were brought against a lengthy procedural history.
Held per Stanley J, allowing the applications except for the application for permission to rely at trial upon the report of Dr Patrick Flynn:
1. That the plaintiff be granted leave to file the draft fifth statement of claim which is exhibited and marked “J” to the third affidavit of Malachy Byrne filed 25 January 2019;
2. That the plaintiff be granted leave to rely at trial upon the report of Dr Craig Raeside dated 14 December 2018;
3. That the plaintiff be refused leave to rely at trial on the report of Dr Patrick Flynn dated 3 January 2019;
4. That the trial date of Monday 11 February 2019 be vacated;
5. That this matter be adjourned for further directions to 11 February 2019 for the purpose of fixing a new trial date and giving further directions in relation to the conduct of the trial; and
6. That the question of costs thrown away is reserved.
Supreme Court Civil Rules 2006 (SA) r 3, r 54, r 113; Federal Court of Australia Act 1976 (Cth) s 37M, s 37N, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; PPG Development Pty Ltd v Capitanio [2016] SASC 169, applied.
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, considered.

SAADAT v COMMONWEALTH OF AUSTRALIA & ORS
[2019] SASC 28
STANLEY J:
Introduction

The trial of this matter was listed to commence on 11 February 2019. The trial was set down for a period of 12 weeks. On 19 December 2018 the plaintiff brought an interlocutory application seeking to amend his statement of claim by filing and serving a fifth statement of claim. On 21 January 2019 the plaintiff brought an interlocutory application for permission to rely at trial upon expert reports of psychiatrists Dr Craig Raeside dated 14 December 2018 and Dr Patrick Flynn dated 3 January 2019. At the hearing of these applications on 1 February 2019 the plaintiff sought an adjournment of the trial. These applications were brought against a lengthy procedural history.
The plaintiff commenced this action in 2012. It was already statute barred. The fourth statement of claim was filed on 13 February 2017 after an extensive pleading process. At the plaintiff’s urging in April 2018 the trial date was fixed notwithstanding that disclosure had not been completed or all expert reports obtained.
I heard these applications on 1 and 4 February 2019. On 4 February 2019 I made the following orders:
1.That the plaintiff be granted leave to file the draft fifth statement of claim which is exhibited and marked “J” to the third affidavit of Malachy Byrne filed 25 January 2019;
2.That the plaintiff be granted leave to rely at trial on the report of Dr Craig Raeside dated 14 December 2018;
3.That the plaintiff be refused leave to rely at trial on the report of Dr Patrick Flynn dated 3 January 2019;
4.That the trial date of 11 February 2019 be vacated;
5.That this matter be adjourned for further directions to 11 February 2019 for the purpose of fixing a new trial date and giving further directions in relation to the conduct of the trial; and
6.That the question of costs thrown away is reserved.
These are my reasons for making those orders.
The application to amend
The application to amend was opposed by the defendant and the third parties.
The plaintiff sought to rely upon affidavits of his solicitor, Malachy Byrne of 19 December 2018, 21 January 2019, 25 January 2019 and 1 February 2019. The defendant sought to rely upon an affidavit of its solicitor, Thy Khanh Huynh affirmed 24 January 2019. The first and third third parties sought to rely upon two affidavits of their solicitor, Mr Nicholas Linke of 29 January 2019 and 4 February 2019.
The defendant and the third parties applied to cross-examine Mr Byrne on his affidavits. They put submissions critical of his affidavit evidence. In my view those criticisms are not made out. While I found aspects of his evidence hard to follow, particularly his characterisation of certain psychiatric evidence as directed to quantum, it is no small matter to reject the sworn evidence of a legal practitioner who is an officer of the Court and owes the Court a duty of candour. In any event, predominantly those criticisms were confined to his affidavit evidence rather than his subsequent viva voce evidence. I am prepared to rely upon the evidence of Mr Byrne in explaining the circumstances in which the applications were brought and the reasons for the delay in bringing them.
I am satisfied that a substantial explanation for bringing the application to amend the statement of claim is the result of the retention by the plaintiff of new senior and junior counsel in late-2018 after the termination by the plaintiff of the retainer of his previous senior counsel in August 2018. The new senior counsel for the plaintiff, Mr H Abbott SC, was unable to consider the brief in this matter until early November 2018. Upon consideration of the brief, he reviewed the pleadings. He advised his instructing solicitors that further amendments were required to the plaintiff’s case if it was to enjoy any prospect of success. In addition, presumably on the basis of counsel’s advice, the proposed fifth statement of claim abandoned the plaintiff’s claim in intentional tort, and his claim based on stress arising from interpretation mistakes and examination by a female nurse at Derby Hospital.
The defendant contended that the proposed fifth statement of claim constituted an attempt to visit upon the Commonwealth and the third parties a wholesale change of the plaintiff’s case. It shifted from an allegation that the plaintiff had a psychiatric illness when he arrived at Baxter from Curtin and was not thereafter provided with proper medical care, to an allegation that the plaintiff was vulnerable to suffering a psychiatric illness upon arrival at Baxter, and that vulnerability (of which it is alleged the Commonwealth was aware, or should have been aware), required the Commonwealth to address all manner of matters to ensure that the illness did not happen. The Commonwealth submits that the plaintiff’s alleged vulnerability is said to arise from a litany of new factual allegations, the majority of which are alleged to have occurred during the plaintiff’s detention at Curtin some 18 years ago with the balance alleged to have occurred prior to his arrival in Australia and during his detention at Baxter.
The defendant’s claim on the third party notices relies exclusively on the material facts and matters alleged against it by the plaintiff in his statement of claim.
The first and third third parties submitted that the application for amendment should have been dismissed on a number of grounds. First, because the explanation provided by Mr Byrne for bringing the application late was insufficient and should not have been accepted. Second, because the nature and significance of the amendments sought were such that they would be significantly prejudiced in preparing for a trial on the amended case.[1] Third, because of the impact on the administration of justice of allowing the amendment so close to trial where that inevitably would result in an adjournment of a 12‑week trial.
[1] See the second affidavit of Nicholas Linke dated 29 January 2019 paragraph 13.
In addition, the second and fourth third parties submitted that because the defendant’s indemnity claim against them relied upon the plaintiff’s statement of claim they were prejudiced. This was because the plaintiff’s statement of claim did not particularise allegations of acts or omissions upon which the plaintiff relied in a way which enabled the third parties to identify whether such acts or omissions were alleged to have occurred during periods where they were responsible for the management of the Baxter detention centre. They acknowledge that the plaintiff did not need to do so for the purpose of pleading his claim against the defendant.
I did not accept that the proposed fifth statement of claim constituted a wholesale change of the plaintiff’s case shifting from the existing allegation that the plaintiff had a psychiatric illness when he arrived at Baxter from Curtin, to an allegation that he was vulnerable to suffering a psychiatric illness upon arrival at Baxter, which by its acts or omissions the Commonwealth failed to address, resulting in the development of a psychiatric illness. The proposed fifth statement of claim pleads the plaintiff’s vulnerability to psychiatric illness in the alternative to the existence of a psychiatric illness at Curtin. Further, I accept that it is likely the pleading in the fourth statement of claim would have required the defendant and third parties to have investigated much of the facts alleged relevant to the amended pleading in the fifth statement of claim.
In his fourth statement of claim the plaintiff alleged that at Curtin he suffered symptoms of an adjustment disorder. Accordingly, the defendant already had to meet a plea that events occurred at Curtin which caused the plaintiff to have trouble adjusting to his detention there. Further, the fourth statement of claim alleged that when the plaintiff arrived at Baxter from Curtin, the defendant knew or ought to have known that he was suffering a psychiatric illness and was a person of less than normal fortitude. In its defence to the fourth statement of claim the defendant pleads that it neither knew nor ought to have known that the plaintiff was suffering a psychiatric illness and/or was a person of less than normal fortitude when he arrived at Baxter.[2]
[2] Second defence paragraph 28.
It is apparent that the defendant presently pleads a positive case that it did not know the plaintiff was a person of less than normal fortitude irrespective of whether he suffered a psychiatric illness or for any other reason, including any vulnerability to psychiatric illness. In these circumstances I did not accept that the proposed fifth statement of claim occasioned substantial prejudice to the defendant by the alternative plea raised that the plaintiff was vulnerable to developing a psychiatric illness when he arrived at Baxter from Curtin.
Further, the plaintiff had pleaded that the defendant had knowledge of his psychiatric condition when he arrived at Baxter because it had his Curtin medical records, he had been in detention since December 2000, it was aware of his assertions of torture and trauma experienced in Iran and was aware or ought to have been aware of the matters in Appendix 1 to the fourth statement of claim. Aside from knowledge of the plaintiff’s mental illness or lack of normal fortitude, the defendant had admitted these facts in its defence.[3] In the circumstances I was satisfied that on the fourth statement of claim issue was joined as to whether the plaintiff was, when he left Curtin, of less than normal fortitude on the basis that the circumstances of his detention at Curtin caused him to suffer symptoms of an adjustment disorder. That was so notwithstanding that there is no express plea in the fourth statement of claim of facts that caused the plaintiff to develop these symptoms. But the plaintiff did plead in the fourth statement of claim the facts that he alleges gave the defendant notice that he was of less than normal fortitude because the circumstances of his detention at Curtin caused him to suffer symptoms of an adjustment disorder.
[3] Second defence paragraph 28.
The defendant had made disclosure of the plaintiff’s medical records from Curtin and numerous documents relevant to the manner of his detention at Curtin, the atmosphere at Curtin, various stressful events at Curtin, and obtained expert reports that canvass these matters. The only new allegations in relation to which the defendant had not already provided disclosure were the plaintiff being restrained when taken to Derby Hospital,[4] body and room searches,[5] the lack of counselling about the visa process[6] and events in the management unit in May 2002.[7]
[4]    5SOC2 [20.1.12].
[5]    5SOC2 [20.1.13].
[6]    5SOC2 [20.1.16].
[7]    5SOC2 [20.1.17]-[20.1.19] and [20.3.5].
I was satisfied that a comparison of the fifth statement of claim with the fourth statement of claim showed that most of the defendant’s complaints about a wholesale change to the plaintiff’s pleaded case in the fifth statement of claim involved pleas that were either already in the fourth statement of claim or were more detailed pleas of allegations already in the fourth statement of claim.[8]
[8] 1 5SOC2 [22.1.5]: cf. 4SOC [39], [40], [41].
Nonetheless I accepted that the proposed pleading in the fifth statement of claim did raise new allegations which would have to be addressed by the defendant. Further, and importantly, I considered that permitting the proposed amendments would necessitate the vacation of the trial date and eventuate in a significant adjournment. That would obviously occasion substantial costs. I understood the plaintiff to accept this proposition. However, he submitted that the need for an adjournment could be confined to a matter of weeks. I did not accept this submission. It may be that further expert reports could be obtained in that timeframe but the Court could not be confident this would occur. In any event, the defendant and the third parties would have to consider whether and, if so, what amendments are required to their defences, and would need to consider whether further documents are subject to the disclosure obligation given the amended pleading.
In that context, I had to consider the plaintiff’s submissions in support of his application for an adjournment of the trial. The plaintiff contended that he was not ready for trial due to the voluminous late disclosure by the defendant and the first third party. He contends that the defendant’s fifth list of documents, which was served in August 2018, contained 1,228 documents and his solicitors had not completed their perusal and analysis of them by the end of January 2019. The defendant’s ninth list, which comprised 598 documents, was not served until 21 December 2018 and copies were not produced to the solicitors until 7 January 2019.[9] Senior counsel for the plaintiff informed the Court that he had advised his instructing solicitors that the documents disclosed in the fifth to ninth list of the defendant’s documents needed to be analysed in order to determine which of them should be provided to the plaintiff’s “systemic” experts. The late disclosure shortly before Christmas 2018 of another large number of documents by the first third party compounded the difficult position in which the plaintiff found himself. The consideration of all these disclosed documents had so overwhelmed counsel and solicitors that counsel had been unable to have any input into the compilation of the tender books. In addition, the plaintiff wished to pursue an application for further and better disclosure. This position was reached despite the strenuous efforts of the plaintiff’s counsel and solicitors in preparing for trial. While the other parties correctly responded to this submission by pointing out that the plaintiff’s difficulties arose from his insistence that the matter be set down for trial before disclosure was completed, that fact does not alter the position in which the plaintiff and his legal advisors found themselves as the trial date approached and they were overwhelmed by the volume of documents disclosed. The other parties criticised the plaintiff’s solicitors’ failure to adequately resource the preparation of the matter for trial. I do not accept that criticism. I find that Mr Byrne had not anticipated the extent of the further disclosure to come when he sought to have the matter listed for trial.
[9] Mr Byrne gave evidence that the defendant has disclosed 3,924 documents and the third parties have disclosed 3,178 documents.
An important aspect of this matter was, as the defendant submitted, that the application raised considerations that extended beyond the immediate impact of the application to amend on the parties to this action.
This action is being heard against a background of a cohort of similar actions having been commenced in South Australia since early 2012, which are standing behind and are waiting for the resolution of this case. There are more than 60 of these actions. The parties have been assiduous in rejecting any submission that this action is in the nature of a test case. Rather, it has been described as “the lead case” in the SA cohort. Nonetheless, it is common ground that the parties wish to have this case decided and any appeal rights exhausted to enable a better informed attempt at negotiating the settlement of the claims in the SA cohort.
The principles applicable to the disposition of the application to amend the pleadings are established in Aon Risk Services Australia Ltd v Australian National University.[10] In that matter an action by the plaintiff against its insurers and insurance broker had commenced two years earlier in the ACT Supreme Court. On the third day of the four-week trial the plaintiff reached a settlement with its insurers. It applied for an adjournment of the trial against the broker in order to make substantial amendments to its statement of claim against the broker and to allege a substantially different case from that which it had previously pleaded. The trial judge adjourned the application to amend for two weeks. On the hearing of the application the plaintiff’s solicitor gave evidence that the basis of the application to amend was information received during a mediation which resulted in a settlement of the plaintiff’s claim against the insurers. The trial judge reserved his decision. Eleven months later he allowed the amendment. In his reasons he relied upon the High Court’s reasons for judgment in Queensland v JL Holdings Pty Ltd[11] that in determining an application to amend the justice of the case is the paramount consideration. The trial judge found that while the explanation for the delay given by the solicitor was not entirely satisfactory, the new allegations raised real triable issues between the plaintiff and its broker. The matter eventually came before the High Court on appeal. The High Court unanimously allowed the appeal against the trial judge’s order granting leave to amend. The basis of the High Court’s reasons in Aon were explained in Channel Seven Adelaide Pty Ltd v Manock[12] where Bleby J, with whom White J agreed, set out the pertinent passages in the High Court’s reasons as follows:[13]
[10] [2009] HCA 27, (2009) 239 CLR 175.
[11] [1997] HCA 1, (1997) 189 CLR 146.
[12] [2010] SASCFC 59.
[13] [2010] SASCFC 59 at [36]-[43].
In the course of his reasons French CJ said:
The Judicature Acts and associated Rules of Court are reflected in rr 501 and 502 of the ACT Rules. The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.
The Chief Justice distinguished JL Holdings on the facts. In their joint judgment in JL Holdings, Dawson, Gaudron and McHugh JJ had said that case management is not an end in itself, and that no principle of case management can be allowed to supplant the ultimate aim of a court, namely the attainment of justice. Their Honours had further said that case management “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”.
Of those passages French CJ said:
It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The Chief Justice went on to hold that the making of amendments “for the purpose of deciding ‘the real issues in the proceeding’ does not impose some unqualified duty to permit the late addition of any new claim”.
Finally, the Chief Justice dealt with the point that the adjournment of the trial, the trial Judge’s decision to entertain the amendment application and the subsequent substantial delay rendered academic any further waste of court resources or inefficiencies. He said:
It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice.
In their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the same principles in JL Holdings as had been noted by the Chief Justice. They made some general observations about the relevant rules. They held that r 501 did not avail the plaintiff or require the amendments in that particular case. Having said that, the raising of new issues fell to be considered under r 502(1) read with the objectives of r 21 in mind. The plurality turned to consider the application of r 502. They observed that the discretion to grant or refuse leave was not at large, but was confined by the overriding purpose stated in r 21 and like expressions contained in rules of other courts in Australia. Their Honours continued:
Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."
[Footnote omitted]
The plurality referred to the judgment of Waller LJ in Worldwide Corporation Ltd v GPT Ltd and continued:
The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in JL Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
An important aspect of the approach taken by the plurality in JL Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.
…
The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[Footnotes omitted]
As to whether compensation in costs will be adequate their Honours noted:
The views expressed by Lord Griffiths in Ketteman v Hansel Properties 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.
In Ketteman Lord Griffiths recognised, as did the plurality in JL Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons.
[Footnotes omitted]
In summary their Honours said:
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. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
[Citations omitted].

In separate reasons, Heydon J said:[14]
The litigation thus commenced was commercial litigation. While in general it is now seen as desirable that most types of litigation be dealt with expeditiously, it is commonly seen as especially desirable for commercial litigation. Its claims to expedition may be less than those of proceedings involving, for example, extraordinary prejudice to children; or the abduction of children; or a risk that a party will lose livelihood, business or home, or otherwise suffer irreparable loss or extraordinary hardship, unless there is a speedy trial. But commercial litigation does have significant claims to expedition. Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest. As Rogers J stated in Collins v Mead:
“For example, if banks are unable to collect overdue loans from borrowers speedily, if small traders cannot recover moneys owed to them speedily the commercial life of the [c]ommunity is detrimentally [a]ffected. The consequences of delay in the hearing of a commercial dispute … will impact not just on the two or three persons or companies who are the immediate parties, but may have an effect on the creditors of the business, on employees, and perhaps on other traders unrelated to the immediate dispute.”
Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce.
[Footnotes omitted]
[14] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [137], (2009) 239 CLR 175 at 223-224.
The relevant rules are Supreme Court Rules 3, 54 and 113. Supreme Court Rule 3 provides:
3—Objects
The objects of these Rules are—
(a)to establish orderly procedures for the just resolution of civil disputes; and
(b)to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
(c)to avoid all unnecessary delay in the resolution of civil disputes; and
(d)to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
(e)to minimise the cost of civil litigation to the litigants and to the State.
Supreme Court Rule 54 provides:
54—Amendment
(1)A party may amend a document filed by the party.
(2)An amendment is made by filing in the Court the amended document on which the amendments are to be shown as follows—
(a)     material deleted from the previous version of the document is to be shown in erased type (that is, type through which a single line is drawn);
(b)     material not previously included is to be distinguished from material previously appearing in the document by underlining or by shaded type.
(3)A party who amends a document must serve copies of the amended document on all other parties as soon as practicable after the amendment is made.
(4)An amendment may be made—
(a)     with the Court's permission; or
(b)     with the consent of all other parties; or
(c)     as authorised by subrule (5).
(5)A party is authorised to amend without the consent of the other parties or the Court's permission if—
(a)     the amendment is made within the period allowed for disclosure of documents or a further 14 calendar days from the end of that period; and
(b)     the party has not exercised the right to amend under this subrule on an earlier occasion.
(6)However, an amendment cannot be made without the Court's permission or the consent of the other parties if the effect of the amendment is—
(a)     to withdraw an admission; or
(b)     to add or substitute a cause of action that is statute barred; or
(c)     to introduce a defendant against whom a fresh action would be statute barred.
(7)The Court's power to grant permission for amendment under subrule (6) is subject to the following qualifications—
(a)     the Court may only grant permission for the addition or substitution of a cause of action that is statute barred if the new cause of action arises out of substantially the same facts as the original cause of action;
(b)     the Court may only grant permission for the introduction of a defendant against whom a fresh action would be statute barred if satisfied that the plaintiff's failure to joint the defendant arose from a genuine mistake.
(8)For the avoidance of doubt, nothing in this rule prevents the Court permitting an amendment to add a cause of action that is statute barred or introduce a defendant against whom a fresh action would be statute barred on the basis that that the amendment not relate back to the commencement of the action and the addition or introduction be subject to the subsequent granting of an extension of time under section 48 of the Limitations of Actions Act 1936 or other statutory power.
Note— See Brook v Flinders University of South Australia (1988) 47 SASR 119.
(9)The following documents cannot be amended under this rule—
(a)     an affidavit;
(b)     a judgment or order.
Supreme Court Rule 113 provides:
113—General duty of parties
(1) The parties to a proceeding, and their lawyers, have a duty to the Court to assist in the orderly progress of the proceeding from its commencement until it has been finally dealt with by the Court.
Note—
The powers to enforce compliance, or to penalise non-compliance, with this rule, and indeed the rules generally, conferred by rules 12 and 13 should be noted.
(2)In particular, the parties have a duty to the Court to ensure that—
(a)they comply with the Court's directions as to the conduct of the proceeding; and
(b)they are ready to proceed with each interlocutory hearing at the time appointed under these rules; and
(c)all interlocutory proceedings are completed well before trial and in any event before a certificate of readiness is completed and, in particular, the pleadings properly reflect the case that is to be presented at trial; and
(d)the trial can proceed, as far as practicable without interruption, from the time appointed for its commencement.
The application of the Aon principles was considered by the Full Court of the Federal Court of Australia in Cement Australia Pty Ltd v Australian Competition and Consumer Commission.[15]In a joint judgment Keane CJ, Gilmour and Logan JJ said:[16]
Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed, statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.
[15] [2010] FCAFC 101, (2010) 187 FCR 261.
[16] [2010] FCAFC 101 at [51], (2010) 187 FCR 261 at 275-6.
They further said:[17]
… insofar as the trial judge gave significant weight to the consideration that the achievement of justice in the particular case before him favoured allowing the amendment, that was not contrary to the decision in Aon Risk or anything in s 37M or s 37N of the Federal Court Act. Nothing in Aon Risk or the Federal Court Act suggests that this consideration is not relevant to the exercise of the discretion to permit or refuse an amendment. Rather, the point made in Aon Risk is that this consideration must not be allowed to trump other relevant considerations, including considerations of the kind reflected in ss 37M and 37N of the Federal Court Act.
[17] [2010] FCAFC 101 at [45], (2010) 187 FCR 261 at 274-5.
Their Honours made the additional observation:[18]
Importantly, to adapt the joint judgment in Aon Risk to reflect the relevant statutory provision in the present case, the objectives in s 37M of the Federal Court Act 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.
There is nothing in Aon Risk or ss 37M and 37N of the Federal Court Act which would suggest that the consideration that it is desirable that the case be decided on its merits, so as to preserve public confidence in the administration of justice, is a consideration irrelevant to the exercise of his discretion.
[18] [2010] FCAFC 101 at [67]-[68], (2010) 187 FCR 261 at 279.
Supreme Court Rules 3 and 113 are in similar terms to s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth).
In PPG Development Pty Ltd v Capitanio[19] Doyle J identified the following matters which must be considered in deciding whether to grant permission to amend pleadings in circumstances of a late application to do so:[20]
[19] [2016] SASC 169.
[20] [2016] SASC 169 at [39].
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public’s confidence in the just and efficient administration of justice.[21]
[Footnote omitted]
[21] Doyle J noted that a similar list of relevant matters was formulated by Bleby J in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 at [46].
In deciding to allow the application to amend the statement of claim, I considered the matters identified by Doyle J in PPG Development.
The nature and importance of the proposed amendment
The importance of the proposed amendment is difficult to evaluate accurately without hearing the evidence, but some assistance is provided by senior counsel for the plaintiff who submitted that, in the absence of the amendments being made, depending on the findings of fact the Court made, the plaintiff’s claim was unlikely to succeed. Accordingly, I considered the nature and importance of the proposed amendment to be critical to the plaintiff’s case.
The merits of the proposed amendment
As with assessing the nature and importance of the proposed amendment, there are limits to the ability of the Court weighing the merits of a proposed amendment in the absence of hearing the evidence. However, as Doyle J said in PPG Development,[22] if the Court is satisfied that the amendment is not arguable or tenable this will weigh heavily against the exercise of the discretion to permit the amendment to be made. In this case, there was no submission that the proposed amendment was untenable.
The stage of the litigation and the impact and disruption occasioned by the amendment
[22] [2016] SASC 169 at [64].
In this case the application to amend was made on 19 December 2018. The trial was listed to commence on 11 February 2019. The action had been on foot since 2012. On any view, the application was made very late in the context of the history of the proceedings. On the other hand, I considered that the application to amend was brought promptly once senior counsel had advised that the application to amend should be made. However, that does not detract from the fact that the timing of the amendment meant that, if it was granted, an adjournment of the trial could not be avoided. The amendment requires the defendant to undertake a further search for documents which might be subject to obligations of disclosure. Nonetheless, the fact is that the disclosure by the defendant of a large number of documents which did not afford the plaintiff and his counsel and solicitors sufficient opportunity to consider, digest and assess so as to be ready for the trial at its commencement date, of itself, would have led to an adjournment of the trial.
The explanation for the application to amend and its timing
I have referred to the explanation for the application to amend and its timing. I found that the explanation for the application to amend and its timing was the fresh advice from new senior counsel retained by the plaintiff. Again, as Doyle J explains in PPG Development[23] this is not an entirely satisfactory explanation. While courts are reluctant to visit parties with the consequences of oversight by the legal representatives, the Court should not be too willing to permit amendments simply because they are the product of further or more detailed consideration being given to an issue by a party’s legal representative or the product of a fresh set of eyes. The retention of new counsel should not operate to re-set the litigation clock or otherwise give the party in question a licence to amend. To do so would be to undermine the approach required by Aon. However, there is an important aspect of this litigation which takes it outside the ordinary case and the considerations that would ordinarily apply to such a case. As I have noted, the application raised considerations that extended beyond the immediate impact of the amendment on the parties to this action. There are more than 60 similar proceedings in the SA cohort which are standing behind and are waiting for the resolution of this case. I accept it is likely that however I resolved the application to amend in this case, there would be similar applications to amend other claims within the SA cohort. If applications of that kind were made and allowed, that may result in the judgment in this action, whether at first instance or on appeal, no longer proving of assistance in resolving the other claims within the SA cohort. That was a significant factor in the decision to allow the application to amend.
Sufficient earlier opportunity to plead
[23] [2016] SASC 169 at [69]-[70].
I was satisfied that the plaintiff had sufficient opportunity to apply to amend at an earlier time. So much is obvious. However, I was also satisfied that the plaintiff acted expeditiously to bring the application to amend once advised to do so.
The time, cost and inconvenience associated with any delay or disruption
The time, cost and inconvenience associated with the adjournment of the trial, necessitated in part by the grant of permission to amend and also by the inadequate opportunity the plaintiff’s legal team had to acquaint themselves with the continuing disclosure made by the defendant, were significant. The plaintiff is impecunious. There is no prospect that if an order for the costs thrown away is made against him he would be in a position to satisfy it. I note that the defendant has foreshadowed an application for costs to be paid personally by the plaintiff’s solicitors. I reserved the question of costs. Whatever the ultimate outcome in relation to costs, as Aon makes clear, these matters are substantial considerations to be weighed against granting an application to amend. Nonetheless, an important ameliorating factor is that the guidance which the outcome of the trial in this matter was intended to provide to the parties in the other SA cohort matters would have been substantially reduced, if not lost, by denying the plaintiff the opportunity to conduct the claim he wants to prosecute. The other claimants in the SA cohort are likely to apply to amend their claims to reflect the terms of the amendments I have permitted the plaintiff to make. Dismissing the application by the plaintiff to amend not only would not have assisted in the resolution of the other SA cohort matters, but in all probability it would have resulted in the need to try another of those matters and exhaust appeal rights in order to achieve what the trial of this matter was intended to achieve in assisting the resolution of the remaining SA cohort claims. The additional time, cost and inconvenience associated with that course substantially ameliorates the undoubted time, cost and inconvenience associated with the grant of permission to amend and the resulting adjournment of this trial.
The uncertainty and strain of litigation
I accept that there will be some strain and further uncertainty resulting from the adjournment of the trial. However, I consider that the greatest strain is likely to be experienced by the plaintiff. That is not to deny that other witnesses for the defendant and the third parties might be inconvenienced and frustrated by the delay, but I consider that the greatest strain will be felt by the plaintiff. I am prepared to draw that inference notwithstanding the absence of any direct evidence on this topic.
Impact upon judicial and court resources
As the High Court in Aon emphasised, the delay and disruption occasioned by an adjournment resulting from an amendment has an impact not only upon the immediate parties to the proceedings but has consequences for judicial and court resources which affect other litigants waiting to have their trials heard and decided. However, again, the significance of this matter to the resolution of the other SA cohort claims is an important ameliorating factor in deciding to grant to the plaintiff permission to amend.
Impact upon public confidence in the efficient administration of justice
As Doyle J points out in PPG Development,[24] delay and disruption not only impact the public in the sense of resulting in wastage of public resources, they also serve to undermine public confidence in the ability of the courts to administer justice in an efficient manner when the courts are seen to acquiesce in that delay and disruption. However, it is important to recognise that this is not commercial litigation where the imperative to timely and efficient disposition of legal disputes is well understood.[25] Moreover, in my view, a proper understanding of the context in which the court granted permission to amend to the plaintiff given the significance of this action to the ultimate disposition of the remaining claims in the SA cohort would not undermine public confidence in the efficient administration of justice.
[24] [2016] SASC 169 at [79].
[25] Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27 at [137], (2009) 239 CLR 175 per Heydon J at 223.
Weighing these considerations, I considered the fact that this is not commercial litigation; that the amendment sought is important to the prospects of success of the plaintiff’s claim; but unlike the position in Aon, does not constitute the pleading of a completely different case;[26] that the amendment sought also resulted in the abandonment of some causes of action and allegations; and critically, that the amendment was crucial to the efficacy of the decision in this action assisting the resolution of the other SA cohort matters, was enough to persuade me to exercise the discretion in favour of granting permission to amend. That was so notwithstanding the delay in bringing the application and the waste of public resources, disruption and cost that was necessitated by granting the amendment and the resulting adjournment, albeit an adjournment that was also necessitated by the difficulties presented to the plaintiff by the continuing disclosure of large numbers of documents by the defendant. In my view, the justice of the case favoured granting the amendment in these circumstances so as to promote the administration of justice not just in relation to this matter but in the disposition of the remaining SA cohort matters.
[26] Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27 at [104], (2009) 239 CLR 175 at 215.
The application to rely on the further report of Dr Raeside and the report of Dr Flynn

The defendant and the third parties opposed permission being granted to the plaintiff to rely upon the fourth report of Dr Raeside of 14 December 2018 and the report of Dr Flynn of 3 January 2019.
The Court gave permission to rely upon the report of Dr Raeside but refused permission to rely upon the report of Dr Flynn.
The Court previously made an order on 23 May 2018 that the plaintiff was to serve any report from any expert on whom he intended to rely by 25 May 2018. The plaintiff had previously served three reports from Dr Raeside. The plaintiff saw Dr Raeside for the purposes of a further report on 31 October 2018.
Dr Flynn had been retained by the plaintiff to provide a psychiatric report in April 2018. The plaintiff saw Dr Flynn for that purpose in August 2018. The plaintiff did not advise the Court and the defendant and the third parties of his intention to rely upon the report of Dr Flynn until 14 November 2018, apart from the plaintiff listing Dr Flynn on a list of proposed witnesses in June 2018. Dr Flynn’s report was not served on the defendant and third parties until 11 January 2019 i.e. one month before trial.
The defendant and the third parties opposed the plaintiff’s application on a number of grounds. First, on the basis of their lateness. Second, on the basis that the intention to obtain them was not disclosed for some seven months. Third, on the basis that a satisfactory explanation for doing so had not been provided by Mr Byrne. Fourth, on the basis that the further opinions go beyond the plaintiff’s pleaded case in the fourth statement of claim and it would be contrary to the interests of justice to permit the plaintiff to change his case at this stage. Fifth, on the basis that Dr Raeside has not adequately explained the reason for his changed opinion. Sixth, on the basis that Dr Flynn’s report is in breach of the Rules and represents an attempt by the plaintiff to secure a forensic advantage in obtaining an additional expert witness without adequate notice to the other parties. In addition, the third parties submit that they have made strategic forensic decisions in relation to obtaining or not obtaining expert psychiatric reports on the basis of the opinions of Dr Raeside as contained in the reports served before the Court-imposed deadline of 25 May 2018.
The Court was prepared to grant permission to the plaintiff to rely upon the further report of Dr Raeside of 14 December 2018. Dr Raeside had been retained by the plaintiff to provide an expert psychiatric opinion in 2011. He provided various reports throughout the course of the litigation. It was not unreasonable for the plaintiff to wish to obtain an updated report closer to the trial. While the fourth report of 14 December 2018 was served some six months after the time permitted and some two months before the trial was to commence, I was satisfied that the justice of the case warranted a grant of permission to rely upon the report. The basis of the opposition to the plaintiff relying upon Dr Raeside’s fourth report substantially falls away given that I have permitted the plaintiff to amend his case by filing and serving the fifth statement of claim. Finally, I do not consider that the complaint regarding the adequacy of Dr Raeside’s explanation for his change of opinion is a sufficient basis to reject the plaintiff’s application to rely on his fourth report. The adequacy of his explanation and the reasons for changing his opinion are matters that can be explored in cross-examination of Dr Raeside.
On the other hand, the Court declined to permit the plaintiff to rely upon the report of Dr Flynn because it was served so late, it did not comply with the Rules for expert evidence and, most importantly, the plaintiff had failed to provide the defendant and third parties with prompt notice of his intention to retain a further psychiatrist. He did not do so until November 2018, some seven months after a decision was taken by the plaintiff to retain Dr Flynn. In my view, the reference to Dr Flynn on a list of proposed witnesses served in June 2018 failed properly to inform the other parties that it was intended to obtain further psychiatric evidence from another expert. Finally, I accept that the reliance on Dr Flynn would amount to the plaintiff securing an unfair forensic advantage in the context of where the proceedings had reached when the report was served.
The application to adjourn the trial
For the reasons set out above, I was satisfied that the adjournment of the trial to a later date was unavoidable given the order granting the application to amend the pleadings and the difficulties experienced by the plaintiff in preparing for the trial listed on 11 February 2019, due to the continuing disclosure by the defendant of large numbers of documents.

2 5SOC2 [22.1.6]: cf. 4SOC [31.1].

3 5SOC2 [22.1.8]: cf. 4SOC [31.1]

4 5SOC2 [22.1.9]: cf. 4SOC [22.3], [33], [34], [35].

5 5SOC2 [22.1.14]: cf. 4SOC [37], [38] .

6 5SOC2 [22.1.15]: cf. 4SOC [31.6].

7 5SOC2 [22.1.16]: cf. 4SOC [31.6], [34].

8 5SOC2 [22.1.18]: cf. 4SOC [31.8].

9 5SOC2 [22.1.19]: cf. 4SOC [32.1.1].
10 5SOC2 [22.1.22]: cf. 4SOC [37], [38].
11 5SOC2 [22.1.26]: cf. 4SOC [31.14].
12 5SOC2 [22.1.28]: cf. 4SOC [34.5].
13 5SOC2 [22.1.30]: cf. 4SOC [32.1.1].
14 5SOC2 [22.1.37]: cf. 4SOC [34.7].
15 5SOC2 [22.1.38]: cf. 4SOC [34.7].
16 5SOC2 [22.1.39]: cf. 4SOC [39].
17 5SOC2 [22.1.40]: cf. 4SOC [22.6].
18 5SOC2 [22.1.41]: cf. 4SOC [22.7].
19 5SOC2 [22.1.42]: cf. 4SOC [22.10].
20 5SOC2 [22.1.43]: cf. 4SOC [22.4].
21 5SOC2 [22.1.44]: cf. 4SOC [22.11].