Case: AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Outcome: discussed
for the applicant made passing reference to the need to avoid a multiplicity of proceedings. He submitted that, subject to Anshun principles ( Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (" Anshun ")), the proposed amendments should be allowed to avoid a multiplicity of proceedings. There are difficulties with that submission and they were not addressed in submissions by either the applicant or the respondents. It seems to me that it would be a surprising construction of O 13 r 2(2) to give it the effect that a party has a right to amend at any stage unless it can be said that Anshun principles preclude a further proceeding. Even if this is the correct construction of the sub-rule, there seem to me some possible difficulties in applying the Anshun principles on an application to amend. In AON Risk Services Australia Limited v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 ("AON"), the High Court addressed a rule (r 501 Court Procedure Rules 2006 (ACT)) in similar terms to O 13 r 2(2) and some of these difficulties (at [32]-[34] per French CJ; at [86]-[88] per Gummow, Hayne, Crennan, Kiefel and Bell JJ). In the absence of detailed submissions about the operation of O 13 r 2(2) and the way in which the matter was argued, I will consider the application for leave to amend under O 13 r 2(1). The High Court considered the scope of a similar rule (r 502) in AON . The Court Procedure Rules 2006 (ACT) also included r 21 which was in the following terms: "(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense. (2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (3) The parties to a civil proceeding must help the court to achieve the objectives. (4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court." In his reasons for judgment, French CJ said that the efficient use of public resources was a relevant consideration in the exercise of the discretion in r 502 and its equivalents ([24], [27]). Justices Gummow, Hayne, Crennan, Kiefel and Bell dealt with r 502 and r 21 together, but their Honours' reasons (at [92]) suggest that they considered that the objectives specified in r 21 and the principles of case management were, in any event, an accepted aspect of the system of civil justice administered by courts in Australia. Their Honours said (at [102]-[103]): "The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings . Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case." (Citation omitted.) The explanation for the delay in bringing forward the amendments in relation to the retrofit kit is not entirely clear. However, there is no reason to think that there was a tactical reason for not bringing them forward earlier. The most likely explanation is that the significance of the evidence about the retrofit kit was not appreciated by the applicant's officers or by the pleader. It was only when the evidence had to be reduced to writing and filed with the Court that minds were focused. The fact that the timetable will be put back if the amendments are allowed is significant. That results in further delay and additional expense and, from the respondents' point of view, the worry of unresolved litigation.