Woodhouse v NKH Pty Ltd as trustee for the NKH Trust
[2023] WASC 158
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WOODHOUSE -v- NKH PTY LTD as trustee for THE NKH TRUST [2023] WASC 158
CORAM: STRK J
HEARD: 12 MAY 2023
DELIVERED : 17 MAY 2023
FILE NO/S: CIV 1599 of 2017
BETWEEN: CAROLINE CLAIRE WOODHOUSE
Plaintiff
AND
NKH PTY LTD as trustee for THE NKH TRUST
Defendant
Catchwords:
Practice and procedure - Pleadings - Strike out - Prejudice to defendant
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application granted; amendment disallowed
Category: B
Representation:
Counsel:
| Plaintiff | : | M L Bennett |
| Defendant | : | E M Heenan SC |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | Clyde & Co (Perth Office) |
Cases referred to in decision:
Anascot Pty Ltd v Conservation Commission of Western Australia [2015] WASC 361
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Commonwealth Bank of Australia v Cheng [No 2] [2021] WASC 291
De Kauwe v Cohen [2021] WASC 25
DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Grimaldi v Chameleon Mining NL [No 2] [2012] FCAFC 6; (2012) 287 ALR 22
H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; (2022) 399 ALR 184
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
James v Hicking [2004] WASC 235
Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Morgan v Banning (1999) 20 WAR 474
Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
Ugle v Director General of Department for Family and Children's Services [2020] WASC 262
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [2018] WASC 73
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1
Table of Contents
Introduction
The nature of Ms Woodhouse's claim and the impugned amendments
NKH's position
New cause of action introduced
Change to forensic landscape
Delay
Significance of amendments
Plea lacks specificity
Ms Woodhouse's position
No new cause of action introduced
The nature and importance of the amendments
Delay
Lack of specificity
Abuse of process
Alleged prejudice
The evidence
First Wood affidavit
Second Wood affidavit
Whyte affidavit
Submissions
Applicable principles
Strike out pursuant to the RSC O 21 r 3(5)
Strike out pursuant to the RSC O 20 r 19(1)
Disposition
Delay
The status of the proceeding
Prejudice to NKH
The nature and importance of the amendments
Lack of specificity
Determination
Conclusion and orders
Schedule A - Plaintiff's further amended substituted statement of claim filed on 27 April 2023
STRK J:
Introduction
This proceeding concerns serious allegations made by the plaintiff, Ms Woodhouse, as against the defendant, NKH Pty Ltd, a company which carries on the business of provision of professional services as business advisors, accountants, tax agents and financial advisors.
The proceeding was commenced by writ indorsed with a statement of claim on 11 April 2017. By way of relief, among other things, Ms Woodhouse seeks a declaration that NKH failed to act in accordance with the standards and requirements in Australian Professional Accounting Standards 110 'Codes of Ethics for Professional Accountants' (APES 110), and certain fundamental principles prescribed in APES 110 (which she pleads include integrity, objectivity, professional competence and due care, confidentiality and professional behaviour), and breached the written agreements by which NKH was retained by Ms Woodhouse.
By an application filed on 3 May 2023, NKH applied to strike out pars 20B and 22.6 of the further amended substituted statement of claim filed on behalf of Ms Woodhouse on 27 April 2023. NKH said that the effect of the amendments introduced by pars 20B and 22.6 was to introduce a new case in which Ms Woodhouse now alleges that:[1]
(a)the plaintiff did not provide the information requested on behalf of the defendant or express consent to disclosure of her 'Confidential Information' for the purposes of making the application to the ATO;[2]
(b)despite the plaintiff not consenting to the request, on 21 April 2015 the defendant sent to the law firm acting for SCS (Hopgood Ganim) a draft of the ATO Application containing, inter alia, the 'Confidential Information';[3]
(c)in breach of its retainer with the plaintiff, the defendant disclosed 'Confidential Information' in circumstances where the plaintiff refused to consent to that 'Confidential Information' being disclosed.[4]
[1] Defendant's submissions par 22.
[2] Further amended substituted statement of claim pars 19A, 20 and 20A. The defendant does not seek to strike out these amendments.
[3] Further amended substituted statement of claim par 20B.
[4] Further amended substituted statement of claim par 22.6.
The amended pleading was the fifth iteration of the statement of claim, which was made without leave pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 21 r 3(1), having been filed not later than seven weeks before the date fixed for the start of the trial.
The application to strike out was made pursuant to the RSC O 21 r 3(5), and further and in the alternative pursuant to the RSC O 20 r 19(1)(c) and (d). In summary, NKH complained that:[5]
(a)Ms Woodhouse had substantially delayed in making the amendments and it would be contrary to the attainment of the goal in the RSC O 1 r 4A and the objects in the RSC O 1 r 4B(1) to permit the amendments to stand; and
(b)the amendments introduce a new claim:
(i)at a late stage of the proceeding at which all preparation for trial but the filing and service of opening submissions has been completed;
(ii)of little or no monetary value in circumstances where the costs of preparing NKH's response to it for trial (if that is achievable at all in the time permitted) will be significant and disproportionate to the value of the claim to Ms Woodhouse; and
(iii)which does not identify the information alleged to have been confidential to Ms Woodhouse with the specificity required,
such that the amendments are unjustifiably oppressive to NKH and should be disallowed or struck out pursuant to the RSC O 21 r 3(5) and/or the RSC O 20 r 19(1)(c) because they may prejudice, embarrass or delay the fair trial of the action, and/or pursuant to the RSC O 20 r 19(1)(d) because they are otherwise an abuse of the process of the court.[6] Reliance on the RSC O 20 r 19(1)(a) was abandoned at the hearing of the application. That is, NKH did not say that the imputed paragraphs are liable to be struck out on the basis that they disclose no reasonable cause of action, nor was it ever suggested that the amendments were scandalous, frivolous or vexatious.[7]
[5] Defendant's submissions par 1.
[6] Defendant's submissions par 1.
[7] ts 41 (12 May 2023).
The proceeding was entered for trial on 18 October 2022, and 19 June 2023 is the date fixed for the start of trial. The witness outlines of Ms Woodhouse and Simon Noel Headon, a director of NKH, were filed in 2021. Among other things, in circumstances where trial programming orders contemplate that a written outline of submissions and a list of authorities for trial will be filed on behalf of Ms Woodhouse by no later than 18 May 2023, the parties sought that the application be heard and determined with urgency.
The application was heard on 12 May 2023 and set out below are my reasons for concluding it is appropriate to best ensure the attainment of the goal in the RSC O 1 r 4A and the objects in O 1 r 4B(i) to disallow the amendment pursuant to O 21 r 3(5).
The nature of Ms Woodhouse's claim and the impugned amendments
Ms Woodhouse's further amended substituted statement of claim filed on 27 April 2023 is reproduced at sch A to these reasons.
It is helpful to understand the amendments the subject of this application in the context of the claims made by Ms Woodhouse against NKH, as described by counsel for the parties.[8]
[8] Defendant's submissions pars 4 ‑ 26 are substantially reproduced at [10] to [33] of these reasons.
The claims pleaded as against NKH concern events which occurred in 2014 and 2015. Counsel for NKH described the dispute as between Ms Woodhouse and her siblings (Suzanne Watt and Stephen Watt, together the three children of the late Colin Watt) concerning the affairs of SCS Investments as being central to Ms Woodhouse's claims against NKH in this proceeding.
Counsel for NKH observed that the shareholding of SCS Investments was somewhat complex and will be the subject of evidence at trial, but suggested that for present purposes it sufficed to observe that it is common ground that the siblings each effectively held a one third controlling interest in it. He suggested that the evidence at trial will be (and noted that NKH did not understand it to be contentious) that SCS Investments was a 50% shareholder of a company named Falcon Investments Pty Ltd, which owned Snap Franchising Ltd and the associated Snap Printing business, which was of significant value.
Counsel for NKH observed (and I understood to be admitted on the pleadings) that NKH is in the business of providing professional services as business advisors, accountants, tax agents and financial advisors. Further, it was at all material times:
(a)the registered office and tax agent of SCS Investments; and
(b)retained to provide services for SCS Investments and each of the siblings.[9]
[9] Defendant's submissions par 6; further amended substituted statement of claim pars 1 and 10; third amended substituted defence pars 2 and 9.
Counsel for NKH acknowledged that there is an issue between the parties as to the scope of NKH's retainer with SCS Investments and each of the siblings (including Ms Woodhouse), and whether NKH was in a fiduciary relationship with any of those parties.[10] However, counsel for NKH suggested that it was common ground that NKH owed to Ms Woodhouse a contractual duty not to disclose information confidential to her which it received in the course of its retainer for her, in particular concerning her financial, business and tax affairs, other than with specific authority or a legal or professional right or duty to disclose it. Counsel for NKH sought to clarify that what was denied was that these obligations were fiduciary, or that the defendant owed any obligations of a fiduciary nature to Ms Woodhouse, because it was not in a fiduciary relationship with her.[11]
[10] Defendant's submissions par 7; further amended substituted statement of claim par 9; third amended substituted defence pars 8(a) and 27(g).
[11] Defendant's submissions in reply par 12.
Counsel for NKH further submitted that the genesis of the dispute which ultimately led to Ms Woodhouse's action against NKH was an election for the board of directors for SCS Investments (and a related company, Ballare Pty Ltd) on 17 April 2014. Suzanne Watt and Stephen Watt were elected as directors, but Ms Woodhouse was not. Counsel submitted that the evidence at trial will be that this engendered conflict between Ms Woodhouse, on the one hand, and SCS Investments, and Ms Woodhouse's siblings on the other (as directors of SCS Investments) regarding the affairs of SCS Investments.
Counsel for NKH further foreshadowed that the evidence will be that, by November 2014, the siblings had agreed to wind up SCS Investments and distribute its assets (principally its ultimate interest in the Snap Printing business) to each of them equally,[12] and that they had agreed for SCS Investments to retain NKH to give advice for the benefit of all siblings as to the most tax efficacious means to arrange the winding up and distribution of SCS Investments' assets. Counsel also said that there will be evidence of correspondence between the siblings in early November 2014 as to the instructions which should be given to NKH for the purposes of that retainer.[13]
[12] Defendant's submissions par 10; ts 43 (12 May 2023).
[13] Defendant's submissions par 10; ts 44 (12 May 2023).
I understood it to be common ground that on 21 November 2014 Ms Woodhouse commenced a proceeding in the Supreme Court of Victoria against Suzanne Watt, Stephen Watt, and SCS Investments alleging that she had been subject to oppression as a minority shareholder and seeking, among other things, the winding up of SCS Investments.[14]
[14] Further amended substituted statement of claim par 15; third amended substituted defence par 14; defendant's submissions par 10; ts 44 (12 May 2023).
Counsel for NKH submitted that the evidence at trial will be that SCS Investments served a notice intending to abide by the outcome of the proceeding, but it was represented by solicitors (Hopgood Ganim) and was involved (via its directors) in negotiations between the siblings concerning the proceeding and provision of the advice they had agreed NKH should provide.
It is NKH's position that in February 2015, orders were made by consent in the Victorian proceeding to the effect that:[15]
(a)the siblings had agreed that it was just and equitable for SCS Investments to distribute its shares in Falcon Investments equally between them expeditiously prior to or as part of the liquidation of SCS Investments;
(b)the siblings had agreed that, to give effect to the distribution process, they required an expert valuation of Falcon Investments, as well as expert advice on the most equitable and tax efficacious manner in which to distribute SCS Investments' shares in Falcon Investments and that, to that end, SCS Investments had appointed NKH to provide advice in relation to the distribution process (and the terms of reference to the defendant were annexed to the orders);
(c)NKH (although not party to the proceeding and strictly not bound by the orders) was required to complete its advice and provide a copy to each of the parties by 10 March 2015;
(d)the siblings had agreed that, upon receipt of the advice from NKH, they would do all things necessary to give effect to the advice in achieving the distribution process expeditiously;
(e)if recommended in NKH's advice, the parties would instruct the defendant to apply for a tax ruling from the ATO within seven days of obtaining NKH's advice; and
(f)each party was required to comply with the reasonable requests of NKH, including for the provision of any information or documents including copy documents, within two business days after the making of such request.
[15] Defendant's submissions par 12; third amended substituted defence par 14(a) - (f).
I understood Ms Woodhouse to join issue with this allegation.[16]
[16] Amended reply to the defendant's second amended substituted defence par 3.
NKH provided its written advice on 10 March 2015, which recommended to the shareholders that SCS Investments apply to the ATO for a private binding ruling.[17] While the issue on which a private binding ruling application was recommended will be the subject of evidence at trial, NKH said that in essence, it concerned the application of div 149 of the Income Tax Assessment Act 1997 (Cth) in respect of various changes to the share structure of SCS Investments since 1993, so as to determine whether capital gains tax would be payable on distribution of SCS Investments' shares in Falcon Investments to the siblings.[18]
[17] Further amended substituted statement of claim par 17.4; third amended substituted defence par 16(c); defendant's submissions par 13; ts 45 (12 May 2023).
[18] Defendant's submissions par 13; third amended substituted defence par 16(c); ts 44 (12 May 2023).
Counsel for NKH submitted that the evidence at trial will be that there then erupted a dispute between Ms Woodhouse and her siblings as to whether or not that advice should be followed; and that NKH was instructed to prepare the private binding ruling by the directors of SCS Investments (Ms Woodhouse's siblings).[19] NKH says that it was in that context that NKH sought the consent of Ms Woodhouse to disclose information regarding her family trust companies to which distributions had been paid, and whether there had been distributions to her personally or to others.[20] In issue in the proceeding is whether Ms Woodhouse refused or simply did not give her consent as requested.[21] NKH also pleads that Ms Woodhouse was deemed to consent by having given her consent to the making of the February orders in the Victorian proceeding.[22]
[19] ts 45 (12 May 2023).
[20] ts 45 (12 May 2023).
[21] Further amended substituted statement of claim par 20A; third amended substituted defence par 19A; ts 45 (12 May 2023).
[22] Third amended substituted defence pars 20(a) and 18A; ts 45 (12 May 2023).
Counsel for NKH described the primary claim advanced by Ms Woodhouse against NKH to be that, because there was conflict (in the sense of an argument) between her and her siblings concerning the management of some of the affairs of SCS Investments, this enlivened certain contractual duties owed by NKH to Ms Woodhouse under its retainer with her,[23] which NKH is alleged to have breached.[24] It was submitted on behalf of NKH that this claim does not rely on the duty of confidence owed by NKH to Ms Woodhouse.
[23] Further amended substituted statement of claim pars 21.2A and 21.3.
[24] Further amended substituted statement of claim pars 22 and 30.
Counsel for NKH submitted that, leaving aside the recently introduced impugned amendments, the relevance of the obligation of confidence has at all times manifested in Ms Woodhouse's pleading only as an element of an allegation that NKH was in a position where its duties owed to Ms Woodhouse conflicted with duties it owed to other parties.
In this regard, counsel for NKH observed that Ms Woodhouse had alleged that, by continuing to 'act' for her as well as Suzanne Watt, Stephen Watt, and SCS Investments after the conflict between her and her siblings arose:
(a)NKH's alleged duty to act in the best interests of Ms Woodhouse conflicted with its alleged duty to act in the best interests of her siblings and SCS Investments;[25]
(b)NKH's alleged duty of candour and honesty allegedly owed to the plaintiff, her siblings, and SCS Investments conflicted with its duty of confidence allegedly owed to all of them;[26] and
(c)the duty of confidence owed by NKH to Ms Woodhouse conflicted with the duties of confidence it owed to her siblings and SCS Investments.[27]
[25] Further amended substituted statement of claim par 23.1.1.
[26] Further amended substituted statement of claim par 23.1.2.
[27] Further amended substituted statement of claim par 23.1.3. The defendant alleges that, as a matter of law and of fact, it is not possible for two duties of confidence to conflict: second amended defence par 22(ba).
NKH's position
In this application, NKH complained that pars 20B and 22.6 of the further amended substituted statement of claim introduced a new cause of action by which Ms Woodhouse claimed, for the first time, that NKH breached its obligation of confidence to her by disclosing allegedly confidential information to SCS Investments through its solicitors on 21 April 2015 by NKH's provision of a draft of the application for a private binding ruling to Hopgood Ganim. Among other things, if pars 20B and 22.6 are not disallowed, NKH complained that it will suffer significant prejudice in attempting to respond to the same in the limited time available prior to trial.
New cause of action introduced
It was NKH's position that before amending its pleadings, Ms Woodhouse had alleged that on 14 April 2015 (that is, after NKH's advice recommending an application be made for a private binding ruling and at a time when NKH says the siblings were bound by the orders made in February 2015 in the Victorian proceeding described in [18] above), Ms Woodhouse's siblings, at the request of NKH, asked Ms Woodhouse to provide her confidential information to NKH for the purposes of preparation of the application for a private binding ruling to the ATO, but she did not agree with NKH's recommendation to seek a ruling and did not provide her confidential information to NKH.[28]
[28] Defendant's submissions par 17; amended substituted statement of claim pars 18 and 20; substituted statement of claim pars 18 and 20.
It was submitted on behalf of NKH that Ms Woodhouse's allegations of conflicts of duties did not involve any allegation that NKH breached the obligation of confidence it owed to Ms Woodhouse by providing to SCS Investments (via its agent) a document containing information confidential to Ms Woodhouse. NKH said that at the highest, through the particulars given as to the allegation that the alleged duties of candour and honesty allegedly owed by NKH to each of Ms Woodhouse, her siblings, and SCS Investments conflicted with the duties or alleged duty of confidence NKH owed to each or allegedly all of them, Ms Woodhouse said that:[29]
(a)in preparing (i.e. but not actually providing) the application for a private binding ruling, the defendant was prepared to (i.e. but did not actually) disclose to the plaintiff's siblings the plaintiff's confidential information concerning her taxation and financial information by requesting Suzanne Watt and Stephen Watt to seek the information from her; and
(b)in preparing (i.e. but not actually providing) the application for a private binding ruling, the defendant was prepared to (i.e. but did not actually) use the plaintiff's confidential information concerning her taxation and financial information for the preparation of the tax ruling application.
[29] Particulars to par 23.1.2 of the amended substituted of claim; set out in the plaintiff's amended further and better answers to the defendant's request for further and better particulars at pars 13.4.7(a) and 13.4.7(b); see also defendant's submissions par 19.
It was further observed that the first version of Ms Woodhouse's particulars to the statement of claim filed on 24 November 2017 alleged that NKH did actually use Ms Woodhouse's confidential information in the preparation of the tax ruling application.[30] However, that contention was withdrawn on 27 August 2021, when the particular was amended to allege only that NKH was prepared to use Ms Woodhouse's confidential information.[31]
[30] Plaintiff's answers to the defendant's requests for further and better particulars of the amended statement of claim dated 24 November 2017 par 13.4.7(b).
[31] Plaintiff's amended further and better answers to the defendant's request for further and better particulars of the substituted statement of claim dated 27 August 2021 par 13.4.7(b).
It was NKH's position that since 27 August 2021, it had been no part of Ms Woodhouse's case that NKH breached any obligation of confidence owed to her by using information confidential to her for the purposes of preparing the tax ruling application; and it had never been part of Ms Woodhouse's pleaded case that NKH breached any obligation of confidence by actually disclosing to a third party any information confidential to her.
NKH said that the effect of the amendments introduced by pars 20B and 22.6 of the further amended substituted statement of claim was to introduce a new case in which Ms Woodhouse now pleads the case described at [3] above.
The essence of NKH's complaint in this application was that the amendments made by the introduction of pars 20B and 22.6 were the first time Ms Woodhouse had alleged that:
(a)the draft of the application for a private binding ruling provided by it to SCS [Investments] via its solicitors contained and thereby disclosed to SCS [Investments] via its solicitors information confidential to the plaintiff; and
(b)the provision of the draft application to SCS [Investments] via its solicitors was a breach of an obligation of confidence owed by the defendant to the plaintiff.
Counsel for NKH submitted that the fact that these allegations were new and additional to what was already particularised, is put beyond doubt by the addition of par 13.4.8 to Ms Woodhouse's re‑amended further and better particulars dated 28 April 2023.
It was submitted on behalf of NKH that in setting out a new factual situation on which relief is claimed, by the impugned amendments Ms Woodhouse had added a new cause of action: see Morgan v Banning (1999) 20 WAR 474, 475 and 484; Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [30]. It was submitted that by adding a new cause of action, or advancing new material facts, Ms Woodhouse made a new 'claim'.
It was acknowledged on behalf of NKH that while the amendments at this late stage in the proceeding raise as an issue whether the claims made are time barred under the Limitation Act 2005 (WA), whether they are indeed time barred is not a matter to be determined by this application.[32] Further, NKH did not seek that the amendments be disallowed on the basis that they are time barred (although it acknowledged that it will be in issue if the claim is permitted to proceed to trial),[33] and at least as to this point, the parties agreed.[34]
Change to forensic landscape
[32] ts 42, 58 (12 May 2023); defendant's submissions in reply par 3.
[33] Third amended substituted defence pars 21, 28(baa) and 28(bab).
[34] ts 42, 43, 58 and 66 (12 May 2023).
NKH complained that the amendments changed the forensic landscape after decisions concerning evidence had already been made, as the amendments were introduced in circumstances where:[35]
(a)the action had been on foot for more than six years;
(b)NKH's email dated 21 April 2015 and attached draft application for a private binding ruling was discovered in this proceeding by NKH by no later than 14 February 2019, and Ms Woodhouse has known all relevant facts for at least four years and two months;
(c)the action has been entered for trial for six months, since 18 October 2022;
(d)NKH made and committed to forensic decisions as to what lay witnesses to call and what evidence to lead from them, and as to what documentary evidence to tender by:
(i)filing and serving its outline of intended lay evidence on 6 December 2021; and
(ii)notifying Ms Woodhouse on 27 March 2023 of what documentary evidence it intends to tender at the trial.
[35] ts 43 (12 May 2023); defendant's submissions par 47.
NKH maintained that Ms Woodhouse had been afforded a proper opportunity to plead her case. Further, while the impugned amendments were made on the penultimate date on which they could be made without leave pursuant to the RSC O 21 r 3(1), the fact that leave was not required was not determinative.[36] In this regard, it was submitted that the amendments were made at a stage of the litigation where everything but the opening submissions had been prepared, and NKH had committed to the evidence it intended to lead in its defence on the basis of the pleadings as they stood before the amendments were made.
[36] Defendant's submissions par 49, citing Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3][2018] WASC 73 [55].
The prejudice to NKH in permitting the amendments to remain was described in the first affidavit of Mr Wood sworn 8 May 2023 at pars 18 to 21. In summary, in order to deal with the new issue introduced by the amendments, Mr Wood deposed that NKH would need to, at least take the following steps (which would not otherwise be necessary without the amendments):[37]
[37] First affidavit of J-P Wood par 18(a) - (n).
(a)identifying the source of the information in the draft application for the private binding ruling concerning the plaintiff;
(b)reviewing the parties' discovery to determine whether any documents already discovered by the parties are relevant to identifying the source of the information and whether it was confidential to the plaintiff from the persons to whom it was published;
(c)requesting further discovery from the plaintiff of documents relating to the new allegation, including all communications by her with [SCS Investments] or Ballare, or any of their directors, officers, agents and representatives, relating to any alleged 'Confidential Information' (this discovery may be extensive as NKH understands [SCS Investments] was set up by Colin Watts for the benefit of his three children (i.e. the plaintiff and her siblings) on 13 January 1967);
(d)asking NKH to make searches of its own documents (these searches may be extensive, as NKH understands they provided accounting services to [SCS Investments] and Ballare from the early 1990's);
(e)making enquiries of SCS/its liquidator for information and documents (which will not be straightforward given [SCS Investments] was deregistered on 1 August 2017);
(f)making enquiries of Ballare/its liquidator for information and documents (which will not be straightforward given Ballare was deregistered on 9 March 2018);
(g)making enquiries of various individuals for relevant documents and information, including the following (none of whom is currently involved in this proceeding):
(i)Emma Barns, Lisa Reid and Terryn Davidow. Those enquiries are unlikely to be straightforward. I am informed by Mr Headon and truly believe that Ms Barns and Ms Reid were principally responsible for preparing the draft application for a private binding ruling. I am further informed by Mr Headon, and truly believe, that Ms Barns, Ms Reid and Mr Davidow are no longer employees of NKH. I have yet to investigate their present whereabouts or whether they would be willing or able to assist with any enquiries relating to this matter;
(ii)Suzanne and Stephen Watt, both of whom were directors of [SCS Investments] and Ballare from about 17 April 2014;
(iii)the liquidator of [SCS Investments] and Ballare;
(iv)Ross Kestel and Steven Cole, former directors of [SCS Investments]; and
(v)Kevin Dundo of Hopgood Ganim, former solicitors to [SCS Investments];
(h)considering whether to seek non-party discovery from any of the individuals mentioned in paragraph (g) above, and, if so, how best to obtain that discovery, including by means of the issue of subpoenas or otherwise;
(i)making further enquiries of Simon Headon, including revisiting his witness outline dated 6 December 2021, and considering whether any amendments are required;
(j)considering whether to call evidence at trial from any of the individuals mentioned in paragraph (g) above and, if so, how best to do that, including the preparation of proofs and outlines of evidence (which, along with step (i), could only sensibly be done after obtaining the relevant discovery);
(k)considering the impact of obtaining and tendering further evidence on the preparations for trial (including the preparation of each party's trial bundle and the electronic trial bundle, which has already been prepared for trial, and the timetable for submissions and chronologies);
(l)considering the impact of obtaining and tendering further documents and calling further witnesses on the estimated length of the trial;
(m)conferring with the plaintiff's solicitors in relation to the steps outlined in paragraphs (c), (d), (k) and (l) above and possibly making the applications in relation to those matters;
(n)Corresponding with the plaintiff's solicitors to obtain particulars of the new allegation, and possibly making an application in relation to the same, including:
(A)what specific information in the draft application the plaintiff says was confidential to the plaintiff vis-à-vis [SCS Investments], Stephen and/or Suzanne Watt;
(B)with which standard or ethical requirement of the ICAA [Institute of Chartered Accountants Australia] or CPAA [Certified Professional Accountants Australia], as pleaded at paragraph 5 of the [further amended substituted statement of claim], the plaintiff alleges the defendant did not comply;
(C)on what date the plaintiff refused to consent to the release of the information in the draft application, by what means that refusal was communicated to NKH, and to whom at NKH that refusal was communicated.
Mr Wood further deposed that it is unlikely that the above steps are achievable within the time remaining before the trial is due to commence. If they can be achieved at all it would be by deployment of significant resources at great cost so as to undertake them in parallel and urgently, given the limited time remaining before NKH's opening submissions are due.[38]
Delay
[38] Affidavit of J-P Wood par 19; defendant's submissions par 53.
NKH complained that there had been significant, and unexplained, delay in the introduction of the new case.
It was submitted that the fact that the impugned amendments concern events that occurred approximately eight years ago (in April 2015) is also significant. As was deposed by Mr Wood, the employees of NKH who were directly involved in the preparation of the draft application for a private binding ruling have left NKH,[39] and SCS Investments has been liquidated and deregistered.[40] The enquiries concerning the source and disclosure of information concerning Ms Woodhouse in the draft application may need to go back as far as 1993.[41] Counsel for NKH submitted that these are objective factors which further support NKH's evidence that investigating the allegation introduced by the impugned amendments and collating a response to it will not be straightforward but will be time consuming and disruptive.[42]
[39] Affidavit of J-P Wood par 18(g)(i); defendant's submissions par 54.
[40] Affidavit of J-P Wood par 18(g)(iii); defendant's submissions par 54.
[41] As noted at [20] above, NKH says that the issue on which a private binding ruling was recommended concerned various changes to the share structure of SCS investments since 1993.
[42] Defendant's submissions par 54, citing Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [65]; ts 52 (12 May 2023).
In addition to the monetary cost to NKH, it was submitted that responding to the new claim would be significantly distracting to NKH's solicitors and counsel during the period they should be making final preparations for trial and drafting NKH's written outline of opening submissions. Further, it was submitted that the fact that the action is listed for a short trial means that the prejudice to NKH cannot be attenuated by allowances made during the course of the trial.[43]
Significance of amendments
[43] Defendant's submissions par 56, comparing Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [80].
Counsel for NKH further submitted that the prejudice to NKH of allowing the amendments weighs heavily in this case because the benefit to Ms Woodhouse of permitting them to stand is de minimis. It was noted that no amendment was made to Ms Woodhouse's allegations of loss and damage, from which, together with the nature and of the alleged breach of confidence, it may be inferred that no monetary loss is alleged to have been caused by the alleged disclosure. It was further noted that none of the pecuniary loss and damage allegedly suffered by Ms Woodhouse appeared to be relatable to the alleged disclosure of allegedly confidential information in the draft application for a private binding ruling.[44] It was submitted that in the circumstances, the cost to NKH of allowing the amendments would be grossly disproportionate to the worth of the claim to Ms Woodhouse.
Plea lacks specificity
[44] Defendant's submissions par 54; further amended substituted statement of claim par 32; re-amended further and better answers to the defendant's request for further and better particulars of the substituted statement of claim par 22.
NKH also complained that the pleaded allegation that the draft private binding ruling application contained 'Confidential Information' was so vague and lacking in specificity as to prejudice, embarrass or delay the fair trial of the action, and it was submitted that the plea ought therefore be struck out pursuant to the RSC O 20 r 19(1)(c).
If the impugned amendments stand, it was submitted that NKH's defence on the merits to the new allegations would involve, among other things, proving that none of the information in the draft application for a private binding ruling was confidential as between Ms Woodhouse and SCS Investments or its directors (Ms Woodhouse's siblings). It complained that it should not be left to guess what information in the draft application concerning Ms Woodhouse is said to be confidential.
Counsel for NKH submitted that it is evident from all of the matters described above that allowing the amendments to stand would be contrary to the attainment of the goal in the RSC O 1 r 4A and the objects in O 1 r 4B(1). In all of the circumstances, it was submitted the impugned amendments should be disallowed or struck out pursuant to the RSC O 21 r 3(5) and/or struck out pursuant to O 20 r 19(1)(c) because they may prejudice or delay the fair trial of the action, and/or O 20 r 19(1)(d) because they are unjustifiably oppressive to the defendant and are otherwise an abuse of the process of the court.
Ms Woodhouse's position
In summary, it was submitted on behalf of Ms Woodhouse that NKH had either mischaracterised or misunderstood the amendments; they were neither an abuse nor oppressive; the amount of work required had been substantially overestimated as a result of the mischaracterisation; and the amendments were unlikely to delay the trial or cause prejudice to NKH.[45]
No new cause of action introduced
[45] Plaintiff's submissions par 7.
As to the pleaded case as against NKH, counsel on behalf of Ms Woodhouse submitted that the amendments to introduce pars 20B and 22.6 did not introduce new claims or causes of action, but rather set out material facts of an allegation made, namely that NKH breached the obligations imposed upon it by the 'Plaintiff Retainer'.[46]
[46] 'Plaintiff Retainer' is defined at par 3 of the further amended substituted statement of claim; see plaintiff's submissions par 15.
Ms Woodhouse holds a different view to that expressed on behalf of NKH as to the proper construction of her pleaded case.
At par 19 of the submissions filed on behalf of Ms Woodhouse, the duties of confidentiality which Ms Woodhouse has alleged NKH owed (and continues to owe) were described as follows by reference to the pleadings:
19.1a contractual duty, pursuant to the Ethical Term,[47] to refrain from disclosing confidential information to third parties without proper and specific authority or unless there is a legal or professional right or duty to disclose, and to refrain from using confidential information to the defendant's advantage or the advantage of third parties, pleaded at paragraphs [5], [6] and [8.6] of the [further amended substituted statement of claim];
19.2a contractual duty, pursuant to the Ethical Term, to maintain confidentiality, being alert to the possibility of inadvertent disclosure, even after the end of a relationship, pleaded at paragraphs [5], [6] and [8.7] of the [further amended substituted statement of claim]; and
19.3a fiduciary and statutory duty not to disclose her or her Plaintiff Entities' personal information to other persons without express consent, pleaded at paragraph [9.4] of the [further amended substituted statement of claim].
[47] 'Ethical Term' is defined at par 5 of the further amended substituted statement of claim (and earlier versions of the statement of claim) to mean the 'express term of the Plaintiff Retainer that the defendant would at all material times conduct itself in accordance with, amongst other things, the relevant standards and ethical requirements of the Institute of Chartered Accountants in Australia and CPA Australia Limited' (abbreviations omitted).
Counsel for Ms Woodhouse submitted that while it is not disputed that Ms Woodhouse also alleges a conflict of duties in the terms detailed at par 16 of the submissions filed on behalf of NKH (reproduced at [24] above), it is not accurate to say that Ms Woodhouse's case had previously been limited to that allegation.[48] By reference to previous pleadings, it was submitted on behalf of Ms Woodhouse that the allegation that NKH owed the contractual duty not to disclose confidential information had formed part of Ms Woodhouse's case in every version of the statement of claim,[49] as had the allegation that NKH breached those duties.[50]
[48] Plaintiff's submissions par 20.
[49] Plaintiff's submissions par 21, footnote 20.
[50] Plaintiff's submissions par 21, footnote 21.
On behalf of Ms Woodhouse it was submitted that the material facts now pleaded at pars 20B and 22.6 served to supplement the existing claim that NKH 'is in breach of its obligations under the Plaintiff Retainer' with reference to the contractual obligations which NKH is alleged to have breached. By pleading out material facts of NKH's alleged breach of the Ethical Term, counsel for Ms Woodhouse submitted that the amendments cure any 'defect' that there was a lack of particulars and clarify the case against NKH, thereby ensuring that the 'statement of claim [does] not plead allegations at too high a level of generality' and '[informs] the opposing party of the case it must meet'.[51]
[51] Plaintiff's submissions par 28, citing Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296[41].
Counsel on behalf of Ms Woodhouse noted that NKH's submissions use the terms 'claim', 'case' and 'cause of action' interchangeably, arguing variously that the amendments to pars 20B and 22.6 should be struck out because they 'introduce a new claim', 'introduce a new case', and 'introduce a new cause of action'. Counsel further submitted that while the term 'cause of action' is slippery and can mean different things in different contexts the most common sense, commonly used definition of 'cause of action' is 'a legal right enforceable by legal action'.[52]
[52] Plaintiff's submissions pars 23 ‑ 24, citing H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; (2022) 399 ALR 184 [117].
In response to NKH, counsel submitted that the amendments made by pars 20B and 22.6 do not introduce a new cause of action because the alleged breach of the contractual duty of confidence has featured in every version of the statement of claim, including the initial writ and statement of claim.[53]
[53] Plaintiff's submissions par 26, footnotes 20 and 21.
Consistent with the position adopted on behalf of NKH, counsel submitted that an application to strike out is not an appropriate forum to raise a proposed limitation defence, which counsel submitted was without merit when regard was had to the history of Ms Woodhouse's pleaded claims.[54]
The nature and importance of the amendments
[54] Plaintiff's submissions par 27, citing Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533; Ugle v Director General of Department for Family and Children's Services [2020] WASC 262 [26].
Counsel for Ms Woodhouse submitted that the recent amendments define and limit the issues for determination by providing necessary detail as to the material facts on which the allegation of breach of the 'Ethical Term' is premised.[55]
[55] Plaintiff's submissions par 40; note that the definition of 'Ethical Term' is set out at footnote 47 above.
It was further submitted that NKH's assertion that the cost to NKH of allowing the amendments would be grossly disproportionate to the value of the claim to Ms Woodhouse was without merit. I understood counsel to say that Ms Woodhouse seeks and places substantial value in an apology from NKH or, failing that, a declaration from the court that NKH breached its obligations to her.[56]
Delay
[56] Plaintiff's submissions par 41.
To the extent that NKH suggested that the principles set out in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 require that an explanation for delay be given, counsel for Ms Woodhouse submitted that NKH had mistaken the requirements of Aon.[57]
[57] Plaintiff's submissions par 11, citing Grimaldi v Chameleon Mining NL [No 2] [2012] FCAFC 6; (2012) 287 ALR 22 [767] ‑ [768]; ts 69 (12 May 2023).
Further, while it was acknowledged that the proceeding had been on foot since 2017, counsel submitted that the recent amendments to pars 20B and 22.6 ought not to be struck out by reason of asserted delay for the following reasons.
First, the court envisages that parties will amend their pleadings; that is the reason that the RSC O 21, and in particular, O 21 r 3, exist.[58]
[58] Plaintiff's submissions par 37.
Secondly, the expert report of Barry Honey dated 5 July 2022, which speaks to the breach alleged, was provided to Ms Woodhouse on 5 July 2022, and served on NKH on 6 December 2022 after it was filed with the court.[59]
[59] Plaintiff's submissions par 38; affidavit of BM Whyte, BMW-1 and BMW-2.
Thirdly, Ms Woodhouse had put NKH on notice that she intended to amend her pleadings as early as 23 November 2022.[60]
Lack of specificity
[60] Plaintiff's submissions par 39, citing affidavit of BM Whyte pars 9 ‑ 14.
Ms Woodhouse also joined issue with NKH's submission that the amendments were liable to be struck out because they failed to identify the 'Confidential Information' allegedly disclosed with the necessary level of specificity required to support a claim for breach of confidence.[61] While counsel submitted that it is not hard to identify the 'Confidential Information' in the document, counsel stated that particulars identifying the 'Confidential Information' could readily be provided.[62]
Abuse of process
[61] Plaintiff's submissions par 29.
[62] ts 62 (12 May 2023).
Counsel for Ms Woodhouse submitted that while the list of reasons for which the court has the power to strike out a pleading for abuse of process is non‑exhaustive,[63] common characteristics of an abuse of process include: '(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute'.[64]
[63] Plaintiff's submissions par 13, citing Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5].
[64] Plaintiff's submissions par 13, citing Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [89].
It was submitted that NKH cannot in the circumstances of this case make out a basis to strike out the amendments on the basis of an abuse of process.
Alleged prejudice
On behalf of Ms Woodhouse it was submitted that properly construed, her claim is not a claim for breach of confidence, but rather a claim for breach of contract. More specifically, it is a claim that NKH breached the duty imposed on it by the Ethical Term of the Plaintiff Retainer pleaded at pars 8.6 to 8.8 of the further amended substituted statement of claim and summarised above. It was submitted that the question for determination at trial will not be 'what specific Confidential Information was disclosed?', but 'did the defendant obtain the plaintiff's consent to disclose the Confidential Information?'.
It was submitted that NKH had been provided with more than sufficient information to answer the plea, a matter which counsel submitted is evident from NKH's amendments to its defence filed on 8 May 2023. It was further submitted that correspondingly, NKH had substantially overestimated the amount of work required to respond to the amendments.
The evidence
NKH's application was supported by two affidavits deposed by Jehan‑Philippe Wood, a partner of Clyde & Co and the solicitor with the care and conduct of the defence of this proceeding on behalf of NKH.
First Wood affidavit
By his affidavit sworn on 8 May 2023, Mr Wood deposed to the discovery and inspection of NKH's documents; the parties' preparations for trial; Ms Woodhouse's new allegations raised in the amended pleading filed on 27 April 2023; and the prejudice NKH would suffer should the amendments not be disallowed.
Among other things, Mr Wood at par 4 of his first affidavit noted that the particulars to par 20B of the amended pleading refers to an email from Emma Barnes of NKH to Kevin Dundo of Hopgood Ganim dated 21 April 2015 and the attachment to that email. Mr Wood attached to his first affidavit and marked JPW‑1 a copy of the email and the attachment (being a draft application for a private binding ruling).
Mr Wood further deposed that NKH discovered a copy of the email and attachment to Ms Woodhouse on 14 February 2019, and that access to and inspection of the documents were given to Ms Woodhouse on 15 February 2019.
As to preparations for trial, among other things, Mr Wood deposed that on 6 December 2021, NKH's solicitors had filed and served an outline of the intended oral evidence of Mr Headon; on 18 October 2022, Ms Woodhouse's solicitors had filed a notice of entry for trial and notice of trial; on 27 March 2023, NKH's solicitors had informed Ms Woodhouse's solicitors of the documents that NKH intended to tender at trial and Ms Woodhouse's solicitors did the same; on 11 April 2023, NKH's solicitors had informed Ms Woodhouse's solicitors which of the documents identified for tender at trial could be tendered by consent and Ms Woodhouse's solicitors did the same; and on 24 April 2023, Ms Woodhouse's solicitors had filed and served on NKH's solicitors copies of the finalised electronic trial bundle.
Mr Wood deposed at par 14 that for the first time on 28 April 2023, he learnt that:
(a)in Paragraph 208 of the [further amended substituted statement of claim], the Plaintiff pleads that, on 21 April 2015, NKH sent a law firm acting for [SCS Investments] a draft application for a private binding ruling containing 'Confidential Information' (which is defined in paragraph 4 of the [further amended substituted statement of claim]), despite the Plaintiff not having consented to disclosing certain allegedly confidential information identified at paragraph 18 of the [further amended substituted statement of claim];
(b)in Paragraph 22.6 of the [further amended substituted statement of claim], the Plaintiff pleads that NKH disclosed Confidential Information in circumstances where the Plaintiff refused to consent to that Confidential Information being disclosed; and
(c)in paragraph 13.4.8 of the Re-Amended Answers, the Plaintiff contends that NKH in fact used the Plaintiff's confidential information and the confidential information of the Plaintiff Entities, without their consent, by supplying a copy of the draft application for the private tax ruling to Hopgood Ganim (the then solicitors for SCS) on or about 21 April 2015.
Mr Wood further deposed at par 15 that in summary, he understood from the above that Ms Woodhouse now pleads, for the first time, that NKH breached the duty of confidentiality owed by it to her by first, including unidentified confidential information of Ms Woodhouse in a draft application for a private binding ruling from the ATO; and secondly, providing a copy of the draft application to SCS Investments via its solicitor, Mr Dundo of Hopgood Ganim by email on 21 April 2015.[65]
[65] First affidavit of J-P Wood par 15.
As to prejudice to NKH, Mr Wood deposed that as the issue did not arise on the pleadings, he did not consider whether any information in the draft application for a private binding ruling provided by NKH to SCS Investments' solicitors on 21 April 2015 contained information confidential to Ms Woodhouse when preparing and settling the outline of the intended evidence of Mr Headon or when preparing and settling the index of documents that NKH intends to tender at trial. He further deposed that he was informed by counsel for NKH that because the issue did not arise on the pleadings, counsel did not consider whether any information in the draft application for a private binding ruling provided by NKH to SCS Investments' solicitors on 21 April 2015 contained information confidential to Ms Woodhouse when deciding what documents to tender at trial and preparing and settling the index of documents that NKH intends to tender at trial and deciding what documents to include in that index.
To address the new allegations made in pars 20B and 22.6, Mr Wood deposed that he anticipated it would be necessary for NKH (or Clyde & Co on its behalf) to take at least the steps identified at par 18(a) to (n) of his first affidavit, reproduced at [37] above before trial, which would otherwise not be necessary without the amendments, primarily for the purpose of identifying whether any of the information concerning Ms Woodhouse in the draft application provided to SCS Investments' solicitors on 21 April 2015 was confidential to Ms Woodhouse or whether it was already known to SCS Investments and its directors or solicitors.
In his first affidavit, Mr Wood deposed that taking the identified steps would involve NKH incurring significant additional time and cost in the lead up to trial, none of which had been the subject of any provision to date by NKH. He further deposed that taking these steps (even if only the steps to consider whether to take action) will be a significant distraction from the preparation of NKH's case for trial.
Mr Wood also deposed that NKH is presently at a disadvantage in attempting to respond to the new allegation, as the allegation had been put very broadly and NKH had yet to receive any proper particulars of the allegation. Before incurring any further significant time or cost in taking the steps outlined at par 18(a) to (n) of Mr Wood's first affidavit (reproduced above), Mr Wood deposed that he expected that he would be instructed to complete his inquiries of Ms Woodhouse's solicitors for particulars of the new allegation as outlined in par 18(n) of his first affidavit.
He further deposed that it was unclear how long the enquiries of Ms Woodhouse's solicitors would take; and how long it would take to complete the steps outlined in his affidavit at par 18(a) to (m). Based on current information and his past experience, he deposed that he considered it unlikely that NKH could complete all those steps by the start date of trial.
Second Wood affidavit
By his second affidavit, sworn on 11 May 2023, Mr Wood put into evidence certain correspondence sent by NKH's solicitors to Ms Woodhouse's solicitors in 2017 and 2018, marked JPW‑2 to JPW‑5. I understood the attachments to the second Wood affidavit to be relied upon by NKH to refute the assertion at par 31 of the submissions filed on behalf of Ms Woodhouse that NKH has not before raised concerns about the 'broad' definition of 'Confidential Information' in her pleaded claim, which NKH contended was wrong in fact.[66]
Whyte affidavit
[66] Defendant's submissions in reply par 18, footnote 11.
In opposition to the application, Briony Marian Whyte, a solicitor for Bennett, affirmed an affidavit on 10 May 2023. Ms Whyte deposed to having read the affidavit of Mr Wood sworn on 8 May 2023 and various correspondence between the parties' representatives prior to the listing conference on 28 November 2022, which concerned potential amendments by Ms Woodhouse to the pleaded claim. Ms Whyte attached to her affidavit documents marked BMW‑1 and BMW‑2. BMW‑1 was a copy of an email and attachment from Christine Arthur of Bennett sent to Mr Wood and Olivia Doray on 5 July 2022 containing the expert report of Mr Honey. BMW‑2 was a copy of an email and attachment from Audrey Webb of Bennett sent to Mr Wood on 6 December 2022, attaching the expert report of Mr Honey by way of service.
Submissions
As to submissions, in support of the application, an outline of submissions was filed on behalf of NKH on 8 May 2023; an outline of submissions was filed in opposition to the application on behalf of Ms Woodhouse on 10 May 2023; and responsive submissions were filed on behalf of NKH on 11 May 2023. I had regard to the written and oral submissions made on behalf of the parties in the disposition of the application.
Applicable principles
Strike out pursuant to the RSC O 21 r 3(5)
RSC O 21 r 3 concerns amending pleadings without leave, and by subrule (1) a party may amend any of its pleadings without the leave of the court by filing its amended pleading not later than seven weeks before the date fixed for the start of the trial of the case. However, by subrule (3), a party served with a pleading amended under subrule (1) may apply to the case manager for any amendment in the pleading to be struck out.
Subrule (4) prescribes the time in which an application under subrule (3) must be made, and NKH's application was made within time.
Subrule (5) provides as follows:
If, on an application made under subrule (3), the case manager is satisfied that, had an application for leave to make the amendment in question been made under rule 5 at the date when the amended pleading was filed under this rule, leave to make the amendment or part of the amendment would have been refused, the manager must order the amendment or that part of it to be struck out.
Subrule (6) provides that an order made on an application under this rule may be made on such terms as to costs as the case manager considers just.
In considering an application made pursuant to O 21 r 3(5), Allanson J in Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] observed that:[67]
Authorities dealing with how other judges have exercised their discretion are valuable. The interests of justice are served by consistency in the exercise of judicial discretions. But the decision in each case is a product of the application of principle to particular factual and procedural circumstances. The common thread in considering an amendment is the need to balance the timely and efficient disposal of the business of the court with what is reasonably required for the fair and just determination of the issues between the parties.
[67] Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442 [41].
The principles relevant to an application to strike out or 'disallow' an amendment pursuant to the RSC O 21 r 3(5) were summarised by Tottle J in Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3], which I applied in determining the application and reproduce below:[68]
[68] Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [43] ‑ [49] (citations omitted).
[43]The power to disallow an amendment pursuant to O 21 r 3(5) is to be exercised so as best to ensure the attainment of the goal in O 1 r 4A and the objects in O 1 r 4B(1).
[44]The goal of the practice, procedure and interlocutory processes of the Court as stated in O 1 r 4A is 'the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bone fide in contention between the parties and the preparation of the case for trial'.
[45]The objects of O 1 r 4B(1) are the following:
(i)promoting the just determination of litigation; and
(ii)disposing efficiently of the business of the Court; and
(iii)maximising the efficient use of available judicial and administrative resources; and
(iv)facilitating the timely disposal of business; and
(v)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to their value, importance and complexity of the subject matter in dispute; and
(vi)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
[46]The considerations identified in Aon Risk Services Australia Ltd v Australian National University inform the exercise of the discretionary power to allow or refuse an amendment to a pleading under O 21 r 3(5).
[47]The relevant principles in Aon have been summarised as follows:
(i)the effect of an amendment on the court and on other litigants is relevant;
(ii)there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(iii)justice requires that parties have a proper opportunity to plead their case but limits may be placed on repleading when delay and cost are taken into account;
(iv)a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(v)the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay — this applies to natural persons and other litigants;
(vi)the nature and importance of the amendment to the party amending must be taken into account;
(vii)attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(viii)the point in the litigation relative to the trial may be an important consideration;
(ix)where a discretion is sought to be exercised in favour of a party an explanation will be called for;
(x)the point can be reached where a party has had a sufficient opportunity to put its case.
[48]An amending party should explain any substantial delay in making the amendment.
[49]Amongst the many judicial observations about the attitude of the courts to late applications to amend pleadings the trenchant observations of Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Ltd cited by Heydon J in Aon capture the essence of the defendants' opposition to the plaintiffs' application. In my respectful view, those observations (made prior to the decision in Aon) bear repetition:
I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty. It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest. A wide overview is required when a far-reaching amendment application is made after a complex trial had been well launched.
As was observed by counsel for NKH, observations to similar effect were made by Beech J in Hightime Investments Pty Ltd v Lungan [No 2] [50] ‑ [54], and Edelman J in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [29] ‑ [32].
Strike out pursuant to the RSC O 20 r 19(1)
It was NKH's position that Ms Woodhouse's amendments should be struck out pursuant to the RSC O 21 r 3(5), further and alternatively pursuant to the RSC O 20 r 19(1) on one or more of the grounds that:
(a)they may prejudice, embarrass or delay the fair trial of the action; or
(b)they are otherwise an abuse of the process of the court.
The requirements of a proper pleading and the grounds upon which a pleading may be struck out pursuant to the RSC O 20 r 19(1) were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4] as follows:[69]
[69] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (citations omitted); which summary was approved on appeal: English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
Further, the general principles that apply to the determination of whether proceedings constitute an abuse of the process of the court were summarised by Vaughan J in Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd:[70]
What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories ... Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case.
[70] Commonwealth Bank of Australia v Cheng [No 2] [2021] WASC 291 citing Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [102] (citations omitted).
I have adopted the principles set out above in the determination of the applications.
Disposition
As was the position in Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3], this application involved a difficult discretionary judgment. The circumstances in which the application was made necessitated the court balancing the risk of doing an injustice - the procedural injustice suffered by NKH if the amendments are allowed to stand, against the risk of injustice inherent in depriving Ms Woodhouse of the benefit of pleading material facts which she says (among other things) ground her claim for declaratory relief.
The considerations addressed below were relevant to my decision, and I weighed them in the balance.
Delay
First, there was delay on the part of Ms Woodhouse in amending her pleading in circumstances where:
(a)the proceeding was commenced over six years ago;
(b)the amendments concern events that occurred approximately eight years ago, and there is evidence that the events involved former employees of NKH, and would involve an investigation potentially dating back to 1993;
(c)the amendments were made in advance of a trial that was then listed only days more than seven weeks away;
(d)this not a case where amendment followed receipt of new information. In this regard, I note that the email dated 21 April 2015 sent to the solicitors for SCS Investments with the attached draft private binding ruling application was discovered by NKH and inspection provided to the solicitors for Ms Woodhouse in mid‑February 2019; the communication was referred to in Ms Woodhouse's particulars filed 24 November 2017;[71] and it was acknowledged on behalf of Ms Woodhouse that the expert report of Mr Honey dated 5 July 2022, which speaks to the breach alleged, was provided to Ms Woodhouse on 5 July 2022;[72]
(e)Ms Woodhouse was represented by experienced commercial litigators throughout the course of the proceeding; and
(f)no explanation for the lateness of the introduction of pars 20B and 22.6 was proffered.
[71] Plaintiff's answers to defendant's request for particulars par 13.4.7; as noted in the defendant's submissions pars 19 - 20.
[72] Affidavit of BM Whyte, BMW-1 and BMW-2.
While the amendments were made within the time permitted by the RSC O 21 r 3(1), I proceeded on the basis that this was not a decisive factor.[73] The amendment was made as of right under subrule (1), subject to the power of NKH to apply to disallow amendment.
[73] Consistent with the approach adopted in Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [5] – [6], [55] and [73]. See also Hightime Investments Pty Ltd v Lungan [No 2] [1], [2] and [117].
In the disposition of the application, I proceeded on the basis that the lateness of the amendment was not determinative of the application, but must be weighed in the context of the litigation as a whole. I considered that Ms Woodhouse's delay, and lack of explanation for the delay (which was required in this case), were matters which weighed in favour of NKH's application and against allowing the amendments.
The submissions made on behalf of Ms Woodhouse, which included a submission that the amendments did not introduce new claims or causes of action but rather set out material facts of an allegation made, did not address why the amendments were not made sooner. The lack of explanation created particular difficulty for Ms Woodhouse, as without an explanation, the circumstances giving rise to the amendment could not be weighed against the effects of the delay and the objectives of the RSC O 1 r 4A and r 4B.[74]
[74] Aon Risk Services Australia Ltd v Australian National University [103] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
NKH also complained that prejudice would flow from the lapse of time, of the type described at [95(b)] above. In Anascot Pty Ltd v Conservation Commission of Western Australia [2015] WASC 361 at [20], Sanderson M noted that such prejudice is sometimes referred to as 'general prejudice' and was considered by McHugh J in Brisbane South Regional Health Authority v Taylor, where his Honour said:[75]
'[W]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
[75] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551 (citations omitted).
I also weighed in the balance Mr Wood's evidence of potential general prejudice.
The status of the proceeding
Secondly, I had regard to the status of the proceeding. As noted above, while the amendments were made within the time permitted by the RSC O 21 r 3(1), they were made in advance of a trial that was listed to commence only a little over seven weeks away.
The amended pleading was the fifth iteration of the statement of claim over six years in circumstances where no explanation was proffered for delay, which suggested that Ms Woodhouse had had a sufficient opportunity to plead her case.
As was deposed by Mr Wood, forensic decisions were made on the basis of Ms Woodhouse's pleaded claim prior to the impugned amendments.[76] Further, the programming orders made on 11 October 2022 provide that:
(a)by Monday, 8 May 2023, Ms Woodhouse was required to file the papers for the judge;
(b)by Thursday, 18 May 2023, Ms Woodhouse is required to file an outline of her opening submissions for trial;
(c)by Thursday, 1 June 2023, NKH is required to file an outline of its opening submissions for trial;
(d)by Thursday, 1 June 2023, Ms Woodhouse is required to file a chronology of events settled by counsel; and
(e)by Monday, 12 June 2023, NKH is required to file its reply to Ms Woodhouse's chronology.
[76] See [74] above.
In this case, the point in the litigation relative to the trial was an important consideration and weighed in favour of NKH's application and against allowing the amendments to stand.
Prejudice to NKH
Thirdly, I had regard to and weighed in the balance the prejudice to NKH. There is evidence that neither Mr Wood nor NKH's counsel considered in the course of their trial preparation whether any information in the draft application for a private binding ruling provided by NKH to SCS Investments' solicitors on 21 April 2015 contained information confidential to Ms Woodhouse. There is also evidence of the additional work that will be required of NKH if the amendments were to stand. On the current pleading, I understood enquiries to be made on behalf of NKH would concern whether the draft application for a private binding ruling contained information confidential to Ms Woodhouse, alternatively was the information was known to SCS Investments or Ms Woodhouse's siblings. If Ms Woodhouse were to identify with specificity the information in the draft application that she alleges to have been confidential to her, the evidence of Mr Wood at par 18 of his first affidavit suggests that clarity would refine the work necessitated by the amendment, but it would not necessarily substantively reduce it.
The amendments have not in this case been a catalyst for an application to adjourn. While NKH did not go so far as to say that the trial dates will be lost if the impugned amendments were not disallowed, I accepted that urgent work would need to be undertaken and the trial dates would be placed at risk if the amendments were to stand, which would prejudice NKH as it wishes to have the trial heard on the dates fixed so that it might defend the serious claims made against it by Ms Woodhouse.
I proceeded on the basis that had the amendments been made earlier, the costs of attending to the steps identified by Mr Wood in his first affidavit would likely have been incurred by NKH. However, I also accept that some prejudice would flow from having to attend to such steps with haste, and there would be distraction from trial preparation. In this regard, I accepted that Mr Wood was best placed to assess the effect of the amendments on NKH's trial preparation. I also accept that 'general prejudice' arising from the circumstances described at [95(b)], may follow.
The nature and importance of the amendments
Fourthly, I proceeded on the basis that the nature and the importance of the amendments were relevant considerations in determining the application.
As to the nature of the amendments, the parties join issue as to whether a new cause of action was introduced by them.
Counsel for NKH submitted that the confidentiality of information in the draft private binding ruling application was never in issue on the pleadings until the impugned amendments were made. In contrast, on behalf of Ms Woodhouse it was submitted that the material facts pleaded in the impugned amendments served to supplement the existing claim that NKH had breached its obligations under the Plaintiff Retainer.
In support of the same, counsel for Ms Woodhouse referred to various iterations of the statement of claim, and further submitted that use of information confidential to Ms Woodhouse had been the subject of particulars provided to NKH as early as 24 November 2017. That is, in response to a request to specify, with particularity, each act, matter, thing and circumstance relied upon by Ms Woodhouse in support of how she says the duty of candour and honesty owed by NKH to her (among others) and the same duty owed to her siblings (among others) on the one hand, and the duty of confidence NKH owed to all of them were in conflict, Ms Woodhouse answered:
13.4.7in preparing the application for a private tax ruling the defendant:
(a)was prepared to disclose to Suzanne Watt and Stephen Watt the plaintiff's confidential information concerning the taxation and financial affairs of the plaintiff by requesting Suzanne Watt and Stephen Watt to seek the information from her;
(b)used the plaintiff's confidential information concerning her taxation and financial affairs for the preparation of the tax ruling application.
Counsel for Ms Woodhouse also noted that the email communication and attachment of 21 April 2015 was referenced in the re-amended further and better answers to NKH's request for further and better particulars.
That said, Ms Woodhouse's answer to particulars at 13.4.7(b) on 24 November 2017 was amended on 21 January 2019 to remove the reference to use of confidential information. Further, while the relevant document sent on 21 April 2015 was referenced in particulars provided by Ms Woodhouse, the material facts as now pleaded by the introduction of pars 20B and 22.6 did not appear in the previous iterations of the statement of claim.
While there were clear flags that Ms Woodhouse would seek to raise the disclosure of her confidential information at trial (through service of Mr Honey's expert report and amendments having been foreshadowed), NKH was entitled to prepare for trial on the basis of Ms Woodhouse's pleaded case. Whether or not the amendments are properly characterised as a new cause of action, NKH complains that its defence was prepared for trial without clear notice of the same, and prejudice will be suffered if the amendments were to stand. I gave this weight in the disposition of the application.
As to the importance of the amendments, I had regard to the following.
As was observed in Koolan Iron Ore Pty Ltd in the context of an amendment made under the RSC O 21 r 3(1),[77] it is desirable that the case be decided on its merits so as to do justice between the parties and preserve public confidence in the administration of justice. I weighed in the balance the risk of injustice inherent in depriving Ms Woodhouse of the benefit of pleading material facts which she says (among other things) ground her claim for declaratory relief. In the disposition of the application, the nature and importance of the amendment to Ms Woodhouse was taken into account and it weighed against the application to disallow the amendments.
[77] Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [42] (Allanson J), citing De Kauwe v Cohen [2021] WASC 25 [52] (Le Miere J).
However, I was also cognisant that if these amendments were not allowed the action could presumably proceed on the basis of the pleadings as they stand, and I had regard to the same.
The RSC O 1 r 4B emphasises that the aim of the court is the timely disposal of litigation. If there is no real benefit to be gained because the monetary outcome is nominal and inevitable delay will be caused by giving leave or allowing an amendment, it may be refused.[78] In this case, it was necessary to grapple with the question of whether the prejudice caused to NKH by Ms Woodhouse's late amendments is disproportionate to their significance and contrary to the attainment of the goal and objectives of O 1 r 4A and r 4B.[79]
[78] James v Hicking [2004] WASC 235 [15].
[79] See Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 [2].
Having had regard to the pleadings and the evidence before me, I accepted that if allowed and proven, the amendments would not sound in a monetary outcome, whereas NKH would likely suffer prejudice through delay. While I weighed this in the balance, in doing so I did not discount the seriousness of the allegations made by Ms Woodhouse against her former advisors, nor her right to come to the court to seek a declaration that her advisers failed to act in accordance with the standards and requirements in APES 110 and certain Fundamental Principles, and breached the terms of their retainer agreement.
I also accepted that the declaration sought by Ms Woodhouse as against NKH concerned serious allegations. These are grave matters and it is desirable that Ms Woodhouse's case for a declaration be decided on its merits, which weighed against the application to disallow the amendments.
I proceeded on the basis that justice required that the parties have a proper opportunity to plead their case, but that limits may be placed on repleading when delay and costs are taken into account.[80]
Lack of specificity
[80] Westgem Investments Pty Ltd in its Own Right Trustee for Hossean Pourzand and Jenny Maria Pourzand Atf The Helen Trust v Commonwealth Bank of Australia Ltd [No 3] [47], summarising the relevant principles in Aon Risk Services Australia Ltd v Australian National University.
Fifthly, as noted above, NKH complained that the allegation that the draft private binding ruling application contained 'Confidential Information' was so vague and lacking in specificity as to prejudice, embarrass or delay the fair trial of the action.
Paragraphs 20B and 22.6 of the pleading refer to 'Confidential Information', which term is defined broadly at par 4 of the pleading. When pleading that 'Confidential Information' was sent to the law firm acting for SCS Investments on 21 April 2015, it was incumbent upon Ms Woodhouse to identify with specificity what of that information contained in the draft application was alleged to have been confidential to Ms Woodhouse.
A pleading may be struck out under O 20 r 19(1)(c) on the ground that it may prejudice, embarrass or delay the fair trial of the action because it is evasive, or it conceals or obscures the real question in controversy, is ambiguous, or fails to state the party's case with reasonable particularity.[81] A statement of claim must not plead allegations at too high a legal of generality and must inform the opposing party of the case it must meet.[82] The fact that NKH had not previously sought to strike out Ms Woodhouse's pleadings by reason of the broad definition given to 'Confidential Information' in par 4 of her pleading was not determinative. Rather, I accepted that in a case such as this, Ms Woodhouse must identify with specificity, and not merely in global terms, what is said to be the 'Confidential Information' in question.
[81] DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170 [34]; English v Vantage Holdings Group Pty Ltd [55(i)].
[82] Hightime Investments Pty Ltd v Lungan [No 2] [41].
In the course of his submissions, counsel for Ms Woodhouse indicated that further particulars could be filed forthwith identifying what of that information contained in the draft application for a private binding ruling was alleged to have been confidential to Ms Woodhouse.[83] On the basis that the defect in the pleading could be readily cured by the exercise of power afforded by the RSC O 21 r 3(6), and the indication by counsel that further particulars could be filed forthwith, I did not give the lack of specificity much weight in the disposition of the application.
Determination
[83] ts 67 (12 May 2023).
In the end, weighing the various considerations described above, I considered it appropriate to disallow the amendment.
The risk of injustice inherent in depriving Ms Woodhouse of the benefit of pleading material facts which she says (among other things) ground her claim for declaratory relief was a consideration that favoured allowing the amendment to stand, and I gave it considerable weight in the balance.
Justice requires that Ms Woodhouse be afforded a proper opportunity to plead her case. However, as noted above, the amended pleading was the fifth iteration of the statement of claim over six years in circumstances where no explanation was proffered for delay, which suggested that Ms Woodhouse had had a sufficient opportunity to plead her case. Further, the other factors weighed in the balance (which included the status of the proceeding, the prejudice to NKH, and the nature and importance of the amendments) largely favoured disallowing the amendments.
In the disposition of the application, I sought to balance the timely and efficient disposal of the business of the court with what is reasonably required for the fair and just determination of the issues between the parties. I concluded that in the interests of justice, weighing all of the factors discussed above, the amendments should be disallowed.
Conclusion and orders
For these reasons, the amendments will be disallowed and I will hear the parties as to the form of orders and as to costs.
Schedule A - Plaintiff's further amended substituted statement of claim filed on 27 April 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
17 MAY 2023
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