State of South Australia v Glenn David Callus No. SCGRG 93/724 Judgment No. 4097 Number of Pages 8 Practice

[1993] SASC 4097

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1) MOHR(2) AND BOLLEN(3) JJ

CWDS
Practice - Application at trial to amend statement of Claim to allege further particulars of injuries - amendment allowed - judge taking all relevant matters into account including Case flow Management principles - principles discussed - no ground for interfering with trial judge's discretion.

HRNG ADELAIDE, 6 August 1993 #DATE 6:8:1993
Counsel for appellant:     Mr D S Willson
Solicitors for appellant:    Lee and Partners
Counsel for respondent:     Mr G G Holland
Solicitors for respondent: Johnston Withers

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against an order of Judge Russell in the District Court whereby he allowed certain amendments to the Statement of Claim in an action and in consequence granted an adjournment of the trial to the defendant and reserved the question of the costs thrown away. The appeal comes to the Supreme Court in consequence of a certificate granted by Judge Russell pursuant to Supreme Court Rule 69A.02. The appeal has been referred to the Full Court by a single judge of this court. 2. The action which was before Judge Russell was an action for damages for injury alleged to have been sustained by the respondent in the course of his service with the Police Department. He sued the State of South Australia pursuant to the Crown Proceedings Act. When the action came on for trial before Judge Russell counsel for the plaintiff in opening intimated that he proposed to call an orthopaedic surgeon, Mr Peter Humble, and a Dr Martin Ewer, a psychiatrist. He indicated that he proposed to lead evidence from Mr Humble of a laminectomy performed on the plaintiff's spine and that he proposed to lead evidence from Dr Ewer of a psychiatric condition described as depression which was said to have resulted from the accident. 3. Counsel for the defendant at trial submitted that that evidence would be inadmissible by reason that the injuries referred to had not been pleaded in the Statement of Claim. Counsel for the plaintiff conceded at trial that the pleadings were deficient and this appeal has been conducted upon that basis. It is unnecessary, therefore, for this court on this appeal to express any opinion on that point. 4. Counsel for the plaintiff applied to the judge to amend the Statement of Claim to include a reference to the two conditions to which I have referred. He also applied for leave to amend the Statement of Claim by amplifying one of the particulars of negligence. That particular of negligence as it stood alleged that "The defendant, its servant or agent ... required or permitted the plaintiff to lift, carry and manoeuvre the said barrel without any or any adequate manual or mechanic assistance." 5. The proposed amendment sought to add the words "such as a tail-gate loader". His Honour granted leave to make the amendments. The defendant sought an adjournment of the trial and that was granted. As I have already indicated, his Honour reserved the question of costs. 6. Mr Willson, who appeared for the appellant before us, contended that the trial judge did not have the power to allow the amendments which the plaintiff sought. The rule of the District Court which governs the making of amendments is Rule 53.01 which provides, so far as relevant, that a party may amend any document filed by him in a proceeding "at any time with the leave of the Court on such terms as may seem just provided that unless circumstances justifying departure from the principles enunciated in Rule 2 shall be shown to have arisen no such order shall be made later than the day fixed pursuant to Rule 56.01 for the pretrial conference in respect of the action." 7. The principles enunciated in Rule 2 are to be gathered from a perusal of that rule as a whole. It is the rule which relates to the principles which govern case flow management in the District Court. The purpose of the rule is set out in Rules 2.01, 2.02 and 2.03 and relates to the orderly, just and efficient disposal of the business of the Court. 8. Rule 2.03 deals with the timetable for the various steps in an action in the District Court. Sub-rule (2) says that in order to achieve that goal it is required that the great majority of actions are conducted in accordance with the stipulated principles as to time and that extensions of such time should only be permitted in exceptional circumstances. 9. This, of course, was not a case in which the plaintiff was seeking an extension of time under that rule but rather a case in which he was seeking to amend his pleadings at trial pursuant to Rule 53.01. The application of Rule 2 to that situation is dealt with in Rule 2.05. That rule imposes obligations on parties to review the pleadings prior to the pre-trial conference in order to ensure their adequacy and to effect any necessary amendments prior to the pre-trial conference. It deals with an application to amend the pleadings at trial in the following words:
    "In the event that any application is made at trial for leave
    to amend the pleadings the Court may, if the amendment would cause
    the postponement or adjournment of the trial, refuse such
    application, if it sees fit, in order to protect the integrity of
    the case flow management system and to implement the Court's
    requirement that trials proceed at the time appointed for trial,
    notwithstanding that any injustice to the opposing party may have
    been avoided by an order for costs or some other order." 10. Rule 2.04, which deals with adherence to the timetable for the great majority of actions in the court, also deals with the questions of postponement of trial as follows:
    "(c) A trial date which has been fixed will not be cancelled or
    postponed unless the justice of the case, assessed having regard to
    the obligations of the parties pursuant to paragraph (a) hereof, so
    requires.
    (d) A trial will proceed on the date fixed, to conclusion, so far
    as practicable without interruption, unless the justice of the
    case, assessed having regard to the parties' obligations pursuant
to paragraph (a) hereof, requires such interruption." 11. I am unable to see any warrant in the Rules for the submission that the judge was without power to make the amendments sought. Rule 53 clearly confers power to make amendments at any time, including the time of trial. Moreover, Rule 2.05 clearly contemplates the making of amendments at trial. It is a matter for the judgment of the trial judge as to whether, in the words of Rule 53.01: "circumstances justifying departure from the principles enunciated in Rule 2 shall be shown to have arisen." 12. It is clear, not only from general principles but also from the language of these Rules, that in deciding whether an amendment is to be granted at trial the judge is to have regard to the justice of the case. One effect of Rule 2.05 is that that question is no longer to be determined having regard only to whether the injustice to an opposing party might be avoided by an order for costs or some other order, but that the judge is also required to have regard to the case flow management principles and the necessity of protecting the integrity of the case flow management system. 13. The approach which a judge, confronted with an application of this kind, should take was dealt with by the Full Court in United Motors Retail Limited v Australian Guarantee Corporation Limited (1991) 58 SASR 156. In that case the Full Court was reviewing a refusal by a trial judge to grant an amendment, a refusal which was based upon the case flow management principles. In that case, in a judgment with which the other members of the court agreed, I emphasised the importance of the principles of case flow management and the court held that the exercise of discretion by the judge in refusing the amendment in reliance upon those principles ought not to be interfered with. I should mention that that case was decided upon a rule which is not in identical terms with the present Rules of the District Court but the principles which were there discussed, in my view, have equal application to the present Rules. I was at pains in that case to point out that, important as the case flow management principles are, they are not the only consideration for a judge who is faced with an application for an amendment at trial. I said at p.161:
    "Important as the observance of those principles is for
    the discharge of a court's responsibilities to the community,
    it is not the only consideration. The effect of any order upon
    the parties and the risk of injustice must also be considered." 14. At p.162 I said this:
    "It will always be necessary for the court, however, to take
    all factors into account. The necessity for the amendment or
    postponement may arise from causes which involve no fault on the
    part of the applicant or its legal representatives. In such cases
    the need to do justice to the party will ordinarily take precedence
    over policy considerations. The necessity for a late amendment or
    a postponement of the trial may result from circumstances which are
    genuinely, to repeat the language of r 89(2) 'exceptional and
    unforeseen'." 15. I interpolate, at that point, that the reference to Rule 89(2) was a reference to the District Court Rules as they then existed, and that the expression "exceptional and unforeseen" does not exist in the present Rules, the word "exceptional" without the word "unforeseen" being used, as I have already mentioned, in the timetable Rule 2.03. 16. I resume the quotation from my judgment in the United Motors case.
    "Here again the need to do justice to the party will ordinarily
    prevail. There are other cases in which the impact upon a party of
    a refusal of an amendment or an adjournment, may be so severe,
    particularly when considered in relation to the nature of the
    neglect or other conduct which has brought the situation about,
    that the court will feel it necessary to subordinate the policy
considerations for the need to avoid such impact." 17. It is necessary to consider whether the judge applied the correct principles to his decision in the present matter. 18. The decision as to whether an amendment should be allowed by a trial judge is, unquestionably, discretionary. This court will interfere with the exercise of the discretion only if there has been an error of law or fact, or the judge has taken into account extraneous considerations, or has failed to take into account relevant considerations. That is a well-established principle, and I refer to House v The King (1936) 55 CLR 499. 19. This decision, moreover, relates to practice and procedure. It is well established that an appellate court is even less disposed to interfere with the exercise of a discretion in a matter of practice and procedure than it is in relation to other matters. 20. I think that it is clear, from a perusal of the learned judge's reasons, that he correctly apprehended the legal principles involved. He understood, as he demonstrates in his reasons, the importance of the case flow management principles and the obligation on him to have regard to those principles, as enunciated in Rule 2, in exercising his discretion. He also understood that he was required, in making his decision, to base it upon the justice of the case, including, in that concept, the obligations upon parties to conform to the Rules of the District Court and, in particular, those embodied in the Caseflow Management Rules. 21. Mr Willson has argued that the learned judge made errors of fact and took into account irrelevant considerations. He also argued that he failed to attach sufficient weight to the relevant consideration of the application of the case flow management principles. 22. The learned judge took into account a number of considerations. In particular, he placed particular emphasis, as I read his judgment, upon the fact that the detriments which were the subject of the evidence which the plaintiff sought to lead and which would have been excluded if amendments to the pleadings were not allowed to the plaintiff, formed a substantial part of the plaintiff's loss. 23. The evidence relating to the laminectomy and the psychological depression were a very important aspect of the plaintiff's case, and if that evidence were excluded, the plaintiff would receive less - substantially less, one assumes - than the amount to which he would be justly entitled if that evidence could be given. 24. His Honour took into account that the plaintiff was not in a position to accept a non suit and commence the action again, because it would have been statute-barred. The detriment to the plaintiff from a refusal to allow the amendment would, therefore, have been grave. 25. His Honour also took into account that the defendant had had ample notice of the detriments which would have been the subject of this evidence. He said:
    "It appears that the Department of Labour had been instrumental
    in referring the plaintiff to Mr Humble in 1989 and had received
    two reports from him which included a report on the operation
    performed by him on 24 August 1988. The defendant's solicitors
    also called for a further examination of the plaintiff by Mr Humble
    and for a report which was provided in March 1990. Furthermore,
    the defendant's solicitors also had the plaintiff examined by a
    psychiatrist, Dr Charles Schembri on 20 September 1989 and received
    his report on 28 September 1989." 26. The defendants, therefore, were in possession, from quite an early time, of the information concerning the laminectomy and the alleged psychological depression, and it must have been apparent to the solicitors for the defendant that the plaintiff intended to lead that evidence at trial. 27. His Honour also took into account the memorandum for the trial judge as to arrangements for trial made at the pre-trial conference, which was on the court file. That disclosed that the plaintiff's solicitor had indicated that both Dr Ewer and Dr Humble would be called as witnesses for the plaintiff, and indicated the defendant's expert witnesses as Dr Schembri and a Dr Cox, and also indicated that dates were set for the evidence of those expert witnesses to be heard. 28. It is really not known what evidence Dr Cox might have given if the defendant called him, but the learned judge, I think, inferred - and inferred reasonably - that it related to the plaintiff's physical condition and, therefore, to the laminectomy which was disclosed in Mr Humble's report, which was in the hands of the defendant's solicitors. He inferred, moreover, that Dr Schembri, a psychiatrist, would be called by the defendant to deal with the psychiatric detriments which were alleged by the plaintiff, including the condition of psychiatric depression which was to be the subject of Dr Ewer's evidence. 29. His Honour inferred from the course of events that there had been a tacit understanding between the solicitors that this evidence would be called at trial. He was critical of the fact that the defendant had not taken any point on the pleadings at pre-trial conference, or at any stage prior to trial, but had merely allowed the matter to proceed knowing the true nature of the plaintiff's case and then taken the objection at trial. He took that into account. 30. Mr Willson obtained leave to tender to this Court his own affidavit, as he was counsel in the District Court. This affidavit related the course of proceedings before the District Court judge, and was admitted because there was no transcript of those proceedings. 31. The effect of the affidavit is that his Honour did not refer to the document which was on the court file in the course of argument, and that the defendant's counsel, therefore, had no opportunity of explaining the matters contained therein. 32. I think that it would have been better if the learned judge had adverted to this document in the presence of counsel. Possibly he did not notice it until after the conclusion of the argument and thought it unnecessary to bring to the attention of counsel. 33. Nevertheless, I do not see that it could have made any difference. The only use the judge made of the document could not have been contradicted, namely, that at the pre-trial conference the plaintiff indicated his intention to call the witnesses who would depose to the laminectomy and the psychological depression, and that the defendant indicated a witness on the psychological issue. 34. It has been suggested that it could have been explained that Dr Cox had no relevant evidence to give, but I do not think that that, really, is a significant factor in the case. 35. Mr Willson sought leave to tender an affidavit by the solicitor who was then acting for the defendant on the question of whether there was any understanding relating to the conduct of the trial and, in particular, the calling of evidence of these detriments without amendment to the pleadings. 36. It seemed to the court that the question of there being an understanding of some sort - doubtless, a tacit understanding - was, clearly, canvassed in the course of the argument. That may be gathered from the description of the course of the argument in the reasons given by the trial judge. The defendant did not seek an adjournment to obtain further evidence on that point, and we did not think that that affidavit could be admitted in this court. It was, therefore, rejected. 37. I am unable to accept the submission that was made that his Honour took the view that there had been an express understanding and that he had made that finding without any basis in the evidence. I think a perusal of his reasons indicates that he had in mind that there existed a tacit understanding by reason of the course of dealing between the solicitors, consisting of the provision of the medical reports to the defendant's solicitors, the knowledge which they derived from them of the laminectomy and psychological condition, and the attitude taken by the defendant's solicitors at the pre-trial conference. I think that there was sufficient material to justify the inference that there was some form of, at least, tacit understanding that the plaintiff's case would proceed upon the basis that there would be an effort to prove the laminectomy and the psychological depression. 38. It follows from what I have said that I am of opinion that there has not been demonstrated any error of fact on the part of the trial judge. He seems to me to have had regard to the relevant considerations, and I can see no indication that he has had regard to any extraneous considerations. It was a matter for him to weigh up the various considerations and to decide where the justice of the case lay, bearing in mind the plaintiff's obligation to conform to the case flow management principles. That being so, I see no basis upon which this court should interfere with the exercise of discretion by the trial judge. 39. The amendment to the Particular of Negligence was a minor amendment amplifying without extending the ambit of the Particular as pleaded. I see no reason to interfere with the discretion of the judge in allowing that amendment. 40. Mr Willson's further argument was that, in any event, the judge was wrong in reserving the question of costs, and that the defendant should have had the costs thrown away in consequence of the adjournment made necessary by the amendment. 41. Costs are in the discretion of the judge. In the ordinary case, a plaintiff who is in default and secures an amendment which requires an adjournment is required to pay the costs thrown away. Ordinarily justice dictates that. There were, however, in the present case some unusual features, and I have referred to those features. 42. The judge was particularly concerned about the fact that, on his view of the matter, there had been some form of understanding which may have been frustrated by a change of solicitors on the part of the defendant at some time before trial, and was concerned that although the substantial nature of the plaintiff's case was known to the defendant before trial, he had taken no point on the pleadings until the matter got to trial. These were relevant considerations. 43. The learned judge, undoubtedly, took the view that the trial judge would be in a better position to deal with the question of costs, because he would be in a better position to assess the significance of the factors to which I have referred. His order was that the costs be reserved, not that they be costs in the cause, and the issue of whether the plaintiff should have to pay those costs, in any event, is still open to the trial judge. 44. I am unable to detect any error in that exercise of discretion by Judge Russell and, for the reasons that I have given, I am of opinion that the appeal should be dismissed.

JUDGE2 MOHR J I agree.

JUDGE3 BOLLEN J I agree.