Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136

Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136 (Namberry Craft) involved a hearing before Vickery J in the Supreme Court of Victoria. The hearing was brought on by originating motion for certiorari and/or prohibition in respect of a Magistrates' Court of Victoria decision to grant leave for a plaintiff to amend a statement of claim during closing submissions. The matter in the Magistrates' Court of Victoria involved a claim by Mr Watson (as plaintiff) against a syndicate (as defendants) for 10% of the winnings of a Tattslotto ticket which the syndicate denied it owed to the plaintiff.

Vickery J heard the matter in the Supreme Court of Victoria and provided an excellent discussion and summary of case management issues and Aon Risk Services Australia v Australian National University [2009] HCA 27 (Aon).


The facts leading to the originating motion are concisely set out at [6] in Namberry Craft:

The Complaint came on for hearing on 14 July 2009. The Magistrate heard the trial over four days, concluding on 17 July 2009. During the course of final addresses the Magistrate suggested to counsel for Mr Watson, that an amendment be introduced into the statement of claim annexed to the Complaint to plead a cause of action founded essentially on a misrepresentation by silence. Mr Watson’s counsel acceded to this suggestion. However, counsel for Namberry Craft and Mr Pezzin requested an adjournment so that the form of the proposed amendment could be considered. The matter subsequently reconvened on 24 August 2009. Counsel for Mr Watson pressed for the amendments to the statement of claim, which had by then been formulated in writing. The amendments included 32 additional paragraphs. The amendments were opposed. 

The Magistrate granted the amendment, ruling as follows (and cited at [8] in Namberry Craft):

The court undoubtedly has power to control any proceeding before it and to grant leave to amend a pleading if circumstances demand. The considerations are not, as was the case, simply whether the interest of justice demand, even if any prejudice may be remedied by an order for costs. The court must take the case management considerations, the access to justice by all persons who seek relief before a court, the availability of the court to all which may be limited by the extension of the hearing time dedicated to a particular matter to the detriment of others, the lateness of such an application and any fault of a party in bringing an application.

This application is brought as a result of analysis of the issues by the court. The finding of the court based upon that analysis is open and more than merely arguable. Of course any final determination will rely upon a finding of fact. Notwithstanding the time which the application is made, the undeniable fact that others with business before the court will have the eventual determination of their matters delayed by the length of any resumed hearing required after amendment, the plaintiff may have sought leave to amend earlier than he did.

Given the matter in which the issue was raised by the court and elevating case management issues to primary consideration, accepting that prejudice may not be overcome by a simple order for costs and having regard to the pressure of the court business generally and in the interests of all who come before the court, I grant leave to amend.

I say in relation to the pressure of court business, it has been evident to me that between the time that this matter was last listed and today there have been many occasions where there was time and substantial time upon which this matter could have been determined without any detriment to any other parties who have business before the court. There have been numbers of days available where this matter could have, upon reasonable notice, been listed. Such would not have interfered with or not unreasonably interfered with access to justice for other persons having business before the court.

The interests of other persons will not be and have not been overborne by this matter being adjourned further and by time being spent determining the matter. I have to balance the interests of justice in relation to all having regard to Aon. Having done that as I said, I grant leave to amend.

It will be necessary then for the matter to be – it is leave to amend in the terms of the application as amended and it will be recollected during the course of argument there were various dates and times that needed to be amended in the amended pleadings which was done at the time. I give leave to amend.

Vickery J considered Aon and case management issues at [33] to [35] (footnote citations omitted):

33 In Aon, the High Court accepted the principles of case management by the courts, saying:

Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process.

34 Further, the High Court in Aon said that the rules concerning civil litigation are no longer to be considered as directed, only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. As explained by Gummow, Hayne, Crennan, Kiefel and Bell JJ:

In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: 

"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."

In this vein, their Honours also concluded:

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

35 The Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe reinforced the reasoning in Aon when it observed:

As we construe Aon, it was about the impropriety of granting a party leave to make a late amendment to a pleading, in circumstances where that party had failed to act expeditiously, and where to allow the amendment was likely to be productive of wasted costs and resources. More generally, Aon may be thought to have re-invigorated the procedural paradigm, to some extent and for some time diminished by JL Holdings, that time, costs and limited judicial resources are relevant considerations in the determination of whether to allow late applications for amendment and invoke other interlocutory processes.

Vickery J went on at [38] to spell out a non-exhaustive list factors from Aon to consider when faced with a late amendment and/or adjournment application:

(a) Whether there will be substantial delay caused by the amendment;
 
(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

Vickery J dismissed the originating motion and said that the Magistrates' discretion did not miscarry. Vickery J noted the following factors were in favour of the amendment:

1. Doing justice between parties (at [59] to [60]): the issue raised in the amendment was arguable.
2. Delay (at [61] to [68]): the delay was inordinate, but it was the result of the Magistrate's late suggestion to re-plead and subsequent administrative problems which delayed the ruling such that the Magistrate ruled on the amendment more than 9 months after the application was made.
3. Costs (at [69] to [70]): the party raising the amendment was likely to pay the costs, and they were not likely to be inordinate.
4. Inevitable and non-compensible prejudice (at [71] to [74]): a lot of stress and inconvenience was suffered, and the defendants were entitled to expect the case to finish within the three days allocated in the Magistrates' Court. Vickery J did not consider this sufficient to warrant that the case not proceed on the amendment.
5. Case management (at [75] to [77]): Vickery J considered that the Magistrate was in the best position to assess this. The Magistrate considered that the interests of others were not overborne by the adjournment of the matter and by time spent determining the matter.
6. Public confidence (at [78] to [79]): most of the delay in obtaining the ruling was not caused by the parties, but by the Court itself. Any delay attributed to the defendant was insignificant.
7. Explanation for amendment ([80] to [81]): Vickery J considered that an explanation was given why the amendment was made (that is, it was raised by the Magistrate) but also noted that no explanation was given about why the amendment was not pleaded before the trial.