Case: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951
Outcome: applied
the High Court has had occasion to reflect upon the amendment of pleadings and case management principles in the context of litigation: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 (Aon Risk Services). One factor which, in my opinion, emerges from the judgments delivered in that case is that decisions in relation to whether or not to permit amendments ought to be informed not merely by the interests of the parties but also by a wider public interest. For example, at para 25, French CJ observed: Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation , King CJ acknowledge the responsibility of judges to ensure, "so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987, there was a marked departure from the approach of Bowen LJ in Cropper v Smith . Lord Griffiths required that judges considering amendments weigh in the balance: the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. French CJ continued: The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a "more leisured age". That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries , Samuels JA said that: the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe. Accepting, as I do, that an appeal statement is not a pleading document, its purpose nonetheless is to serve the ends of justice by ensuring procedural fairness. At this late stage of a proceeding, and having regard to sentiments evident in Aon Risk Services , the purpose of Tax List directions and of case management generally, it seems to me that it would be procedurally unfair to permit the Commissioner to rely upon the appeal statement in its amended form. Especially that is so in light of the deliberate statement made in open court six months ago by reference to which the appellant taxpayer has cast its case. There is a further observation which I feel constrained to make, and that is in relation to the Commissioner's utilisation of, or attempted utilisation of, s 15 of the Taxation Administration Act 1953 (Cth) in relation to the conduct of serious revenue law litigation in this Court. Like any litigant, the Commissioner is entitled to appear in person. Section 15 also makes it plain that the intention is that the Commissioner may in writing authorise one of his officers to appear. In so doing, though, that officer is not clothed with all that a court is entitled to expect from a person on the roll of legal practitioners.