The High Court has given a sharp and very clear message that
late in the day amendments to pleadings at commencement of a trial
or close to trial require the exercise of the discretion by the
primary judge to take into account what the Chief Justice described
as the "irreparable element of unfair prejudice in
unnecessarily delaying proceedings".
Late in the day amendments to pleadings will now be a risk
management issue in the conduct of litigation. If you need to amend
in the six months prior to trial it will be an increasingly greater
risk the later in time the application is made.
All judgments of the Court supported the observations of the
Chief Justice that the time of the Court is a publicly funded
resource. Inefficiencies in the use of that resource arising from
the vacation or adjournment of trials are to be taken into account.
So too is the need to maintain public confidence in the judicial
system. Delays and costs are undesirable and delay has deleterious
effects, not only upon a party to the proceedings in question, but
to other litigants.
To the extent that the previous decision of the Court in
Queensland v JL Holdings Pty Ltd  supported the
proposition that case management considerations and questions of
proper use of Court resources are to be discounted and given little
weight, those comments should no longer be regarded as
Gummow, Hayne, Crennan, Kiefel and Bell JJ in a joint judgment
ruled that an application for leave to amend a pleading should not
be approached on the basis that a party is entitled to raise an
arguable claim subject to payment of costs by way of compensation.
There is no such entitlement. All matters relevant to the exercise
of the power to permit amendment should be weighed. Taking into
account substantial delay and wasted costs, the concerns of case
management will assume importance on an application for leave to
The joint judgment refers to limits that will be placed upon the
ability to effect changes to pleadings, particularly if litigation
is advanced. The days of the permissive practices of the past are
long gone. The resolution of disputes serves the public as a whole
not merely the parties to the proceedings.
The objectives of the case management rules as to timely
disposal of cases and the limitation of costs are to be applied in
considering an application for amendment. It was significant that
the effect of its delay in applying would be that a trial date of
four weeks was lost and litigation substantially recommenced. A
just resolution of the claim necessarily had to have regard to the
position of the defendant in defending it. An assumption that costs
will always be a sufficient compensation for the prejudice caused
by amendment is not reflected in Rule 21.
Heydon J was also critical of the primary judge Gray J in the
delay in giving judgment on the application to amend. Ten months
elapsed. "Unless there is some good explanation for that
delay which has not been revealed to this Court, it is deplorable .
. . ten months is an excessive period of reservation, even for the
most complex of trials or appeals . . ., the delay in giving
judgment in this case is alien to every axiom of modern litigation.
It is particularly inappropriate in commercial litigation . . .
what is the point of expediting interlocutory steps and fixing
early trial hearings if judgments, particularly interlocutory
judgments, are not "relatively speedy"?".
Aon Risk Services Australia Ltd v Australian National
University (2009) HCA 27 (5 August 2009)
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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