Supreme Court New South Wales Medium Neutral Citation: Roderick v Washington H Soul Pattinson & Company Limited [2020] NSWSC 1223 Hearing dates: 4 May 2020 Date of orders: 4 May 2020 Decision date: 04 May 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Grant leave to the plaintiff to file the further amended statement of claim which will be dated 4 May 2020. (2) The plaintiff pay the costs occasioned by and as a result of the amendments. Catchwords: CIVIL PROCEDURE — pleadings — amendment — late application for amendment Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 Cases Cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 White v Overland [2001] FCA 1333 Category: Procedural and other rulings Parties: Melinda Rose Roderick (Plaintiff) Washington H Soul Pattinson & Company Limited (Defendant) Representation: Counsel: G McNally SC with D Stewart (Plaintiff) D Sulan with J Entwisle (Defendant) Solicitors: Gillis Delaney Lawyers (Plaintiff) Baker & McKenzie (Defendant) File Number(s): 2018/204098 Publication restriction: None REVISED EX TEMPORE Judgment 1. The plaintiff is claiming damages from her employer, the defendant, consequent on what she maintains was the defendant's termination of her employment without reasonable notice and without payment of the benefits to which she was entitled. 2. The proceedings were originally commenced on 3 July 2018. On 8 April 2019, the plaintiff filed an amended statement of claim. 3. The hearing of the matter commenced on 1 May 2020. Mr McNally SC with Mr Stewart appears for the plaintiff. Mr Sulan with Mr Entwisle appears for the defendant. 4. The matter is listed for four days. On the first day of the hearing the parties helpfully provided opening submissions. The plaintiff now seeks leave to further amend her statement of claim in the terms set out in the further amended statement of claim provided to the Court and the defendant today, 4 May 2020. 5. In support of the application, the plaintiff relies on the affidavit of David Eric Collinge sworn 4 May 2020. Prior to the commencement of the hearing, the plaintiff gave notice that she wished to amend the statement of claim to withdraw the claim for a payment based on redundancy. 6. At the end of closing submissions and perhaps in part, as a reflection of some of the pleadings points raised by Mr Sulan in his opening submissions, the plaintiff seeks leave to file a further amended statement of claim. The application is being made prior to any evidence being adduced in the proceedings and is being made on the second day of the hearing. 7. The defendant opposes a number of the amendments as follows: 1. It opposes an amendment to the relief sought in the statement of claim. As set out in para 2, the plaintiff now seeks "a declaration as to the plaintiff's true entitlement with respect to the forfeiture of 11,537 rights issued under the 2018 LTI rights plan". 2. It opposes the amendments set out in paras 17B to 17G. These amendments relate to the plaintiff's claim for entitlements under both the short term incentive plan and the long term incentive plans. 3. It opposes the amendments relating to the period of reasonable notice. The plaintiff asserts that should she succeed on her argument as to the terms of the contract in existence at the time of her purported termination, she would have been entitled to reasonable notice of 12 months. Senior Counsel for the plaintiff, Mr McNally, opened on the basis that she would have been entitled to 24 months. He now seeks to amend the statement of claim to reflect that opening. 1. As set out in s 64 of the Civil Procedure Act 2005 (NSW) ("the Act") the Court may order that a document in the proceedings be amended at any stage of the proceedings. Whether the Court should grant leave to amend must depend upon the particular circumstances arising at the time that the application for leave to amend is made. The Court must have regard to the overriding purpose set out in s 56 of the Act and in deciding whether to grant leave the Court must act in accordance with the dictates of justice. I must have regard to ss 56 and 57 as well as the matters set out in s 58(2) of the Act. 2. In support of its opposition to the proposed amendments, the defendant relies on the principles set out in the well-known cases of AON Risk Services Australia Limited v Australian National University [1] and Nowlan v Marson Transport Pty Ltd. [2] 3. Specific reference was made by Mr Sulan to the observations of Allsop J in White v Overland [3] relating to the duties and obligations of the parties involved in civil litigation, even hard fought litigation, to ensure that all the parties to the dispute are cognisant of what the issues are and take steps to avoid other persons proceeding on a misconception or proceeding without a full understanding of the case that they are required to meet. Mr Sulan relies on those observations in aid of his point that the defendant attempted to elicit further information from the plaintiff by way of particulars as to the case it was required to meet but the plaintiff failed to provide the particulars. 4. Mr Sulan also relies on what was said in Commonwealth Bank of Australia v Mehta [4] regarding the difficulties that Counsel may sometimes have in articulating the way in which a case might have been presented differently had an amendment been sought at an earlier stage and the difficulties in articulating actual prejudice in such circumstances. 5. I acknowledge that it may be difficult for a defendant to articulate how a case would have been prepared and run differently based on different allegations, particularly in circumstances in which a plaintiff seeks to amend the statement of claim, to alter the substance of the claim. It must be remembered that it is the plaintiff who is seeking the indulgence and the onus does not rest with the defendant to establish why leave should not be granted. 6. However, the Court must seek to do justice between the parties and, in doing so, it is certainly relevant and important to have regard to any prejudice that the defendant might suffer as a result of the proposed amendments. Of course that prejudice does not include the defendant being required to pay more money than it thought it might have had to pay prior to the amendment. In some cases, there may be cost consequences as a result of an amendment but no doubt the Court can deal with cost consequences at an appropriate time. 7. Further, in circumstances in which an amendment to a statement of claim is proposed at the time of the hearing, it is appropriate that the party seeking leave to amend provide an explanation as to why the amendment is sought at that time and not at an earlier time. 8. In this regard, the plaintiff relies on the affidavit of Mr Collinge. Mr Collinge deals with two matters, being the issue relating to his answer to the request for particulars of 17 April 2019 and the reasons why the plaintiff is now seeking to change from its pleaded case of 12 months to 24 months. The effect of Mr Collinge's evidence is that when considering the request for particulars from the solicitors for the defendant, he considered that no further particularisation was required. He, in essence, says that in his letter. 9. However, he says that on 30 April 2020 Mr McNally advised that particulars should be provided. Similarly, in respect of the alteration from 12 to 24 months, he says that when he prepared the amended statement of claim in 2019, he considered that 12 months' notice of termination or, as he says, the greater or lesser period could be a period that the Court might find would be reasonable. I am not sure that it is necessarily properly pleaded that the Court might potentially award a greater period than 12 months. 10. However, he says that based on the advice of Senior and Junior Counsel he seeks to amend the statement of claim to allege that 24 months is a reasonable period. 11. I accept his explanation. It is really to the effect that he took a particular view about what should be claimed and what particulars should be provided but he has received advice from Counsel very recently to claim an additional amount and that it would be appropriate to add some particulars. 12. It is necessary to consider the three different categories of proposed amendments which the defendant opposes. 13. The first category is the amendment in respect of the amount claimed and the period of reasonable notice. One of the principal issues in this case has always been what a period of reasonable notice might have been, should I determine that the 2006 contract no longer applied or a different contract (which the plaintiff asserts) should be found. 14. Despite Mr Collinge's suggestion, I favour the view that on a proper reading of the pleadings, the plaintiff was asserting an entitlement to no more than 12 months. In opening, Senior Counsel for the plaintiff asserted that 24 months was a reasonable period which resulted in the defendant raising a pleading point in the defendant's opening submissions. 15. I should say that the conduct of Mr Sulan in raising these pleadings points has been quite appropriate in circumstances where he, consistent with his obligations, would wish to ensure that the plaintiff was well aware of the issues in the case and would not want the plaintiff to be taken by surprise at the end of the case. 16. It is difficult to anticipate how the change between 12 and 24 months has altered the evidence which might be adduced or would alter the outcome other than that the plaintiff might recover more than she originally claimed. The amount of the plaintiff's base salary is not in dispute and the fact that the plaintiff has always maintained that the termination was invalid, in the sense that it was not carried out in accordance with her contract and that she should have been given additional notice is also not in dispute. 17. Mr McNally submitted that the proposed amendment was a bit like an amendment to a claim for damages in a personal injuries case. That is not necessarily so because in many personal injuries cases a change to the quantification of the amount claimed will necessarily result in different evidence or the need for additional evidence. 18. However, I accept the analogy in the context of this case in the sense that I accept that the change from 12 to 24 months does not, in my view, result in any real alteration to the way the case is being conducted or to any evidence that might be adduced. Whilst Mr Sulan referred to the difficulties of stating prejudice in circumstances such as this (to which I have already referred), I have difficulty understanding how a change in the period would necessarily change what happens in this case. I allow the first category of amendment. 19. The second category of proposed amendments relates to paras 17B–17EA. As I understand the proposed amendments, they are relevant in two respects. That is, firstly, to ensure that the plaintiff's case on an entitlement to payment of the short term incentive on termination reflects the opening and, indeed, what the plaintiff asserts are the facts of the case which the plaintiff asserts should not really be in dispute and, secondly, to provide particulars in respect of the claim relating to the exercise of the discretion by the defendant under the Long Term Incentive Plan Rules for 2016 (that is, really, the paragraph as I understand it, 17EA). 20. In response to the application to amend in this category, the defendant points to its efforts to obtain these proper particulars a long while ago. The defendant points to its letter requesting particulars of 6 August 2018, the response from Gillis Delaney dated 14 August 2018, the further request from Baker McKenzie on behalf of the defendant dated 4 April 2019 and the response from Gillis Delaney dated 17 April 2019, as well as the final letter on this topic from Baker McKenzie dated 30 April 2019. 21. Specifically, the defendant points to the content of its letter of 30 April 2019 in which it asserts: "Your client has declined to identify any relevant facts, matters or circumstances on which she relies. Our client is preparing its case on the basis that your client will not seek to introduce or rely upon any facts, matters or circumstances which do not appear in the amended statement of claim to establish the alleged breaches. In other words, in circumstances where you have declined to answer the request for particulars, our client will hold your client at trial to the amended statement of claim as pleaded. Our client will not permit or otherwise consent to your client advancing your case beyond their assertions and the conclusions in the amended statement of claim." 1. It can be said that the defendant has clearly put the plaintiff on notice well in advance of the hearing of what its attitude might be to any attempt to amend the statement of claim. 2. Two things might be said on this issue relating to particulars. 3. Firstly, there is an obligation on the plaintiff to properly plead her case. This requires the plaintiff to provide proper particulars, setting out the facts and circumstances on which she relies for the purposes of her course of action. Plainly, Mr Collinge took a view at the time that no further particulars were required. In circumstances in which Mr McNally has advised that there should be some further particularisation, it is not necessary for me to form any view or make any finding as to whether there might have been a proper request for particulars or whether the original statement of claim properly identified the issues and put the defendant on notice of the case it was required to meet. 4. Having said that, the outcome of an application to amend, that is, whether leave should be granted, is not to be determined by the solicitors for the defendant proceeding on their own assumptions. The application should not be determined on the basis of solicitors saying in 2019 that they will oppose any amendment and that, because they have sent this letter, the amendment should not be allowed. 5. Again, there was no onus on the defendant to do anything. It was not required to approach the Court to seek the further particulars (although that was a course open to it), but it also must be emphasised that particulars are only necessary to ensure that the other party understands the case it has to meet. 6. At least in my experience, skirmishes on particulars are often more procedural than substantive. This is often why parties (either plaintiffs or defendants) do not seek to take the issue of particulars any further. The case that they have to meet is well understood. Indeed, that is often why parties file a response or defence without taking the issue any further. They have an understanding of what the case is about, even absent the provision of the particulars. 7. I am not suggesting that the skirmish on particulars back in 2018 and 2019 was only procedural and not of substance, but the final correspondence from the solicitors for the defendant is hardly determinative of whether the dictates of justice suggest that the amendments should be allowed. 8. Again, Mr Sulan, doing his best to be open and frank with the Court, directed me to the relevant cases and to the earlier correspondence dealing with this issue. 9. However, on my reading of para 17EA, at least on my understanding at this stage, the plaintiff is really pleading matters of which the defendant must have already been aware of or could not be genuinely in dispute. It could not be in dispute that the plaintiff was seeking payment of the LTI benefits on the basis that, in the alternative, the defendant did not properly exercise its discretion. 10. I allow the amendments set out in para 17EA. 11. As far as para 17CA is concerned, Mr Sulan raised the prospect that if the defendant had been aware that the plaintiff would be asserting that the discretion not to pay the STI benefit was exercised on a wrong factual basis or unreasonably, arbitrarily or capriciously, he would have or might have asked the defendant what it would have done with a different termination date. 12. I confess to being uncertain as to how that evidence would materially alter the outcome of the matter or would be necessarily relevant to that which is being decided. As I understand it, the defendant proceeded on the basis that the plaintiff's employment had been terminated on a certain date. The plaintiff seeks to challenge that decision. Again, I do not apprehend that there can be a genuine dispute as to the proposition that the defendant thought, at all relevant times, that it had validly terminated the plaintiff in April 2018. 13. I am not satisfied in the circumstances that the course of the hearing or anything different would have been done by the defendant. In the circumstances, I propose to allow the amendments set out in paras 17B to 17EA. Of course, should it be that the defendant wishes to adduce further evidence, no doubt the defendant can make whatever application it considers fit. 14. The third category of amendments relates to the declaration sought in para 2 of the relief claimed. Mr Sulan submitted that the declaration sought could be of no consequence. It is the type of declaration sought which, if the application was made prior to the hearing or was contained in the original statement of claim, would be simply struck out. 15. As I understand it, paras 17F and 17G of the proposed amended statement of claim relates to the relief sought in para 2. They relate to the 2018 LTI rights plan. 16. Mr McNally's submission is that, consistent with the 2018 LTI plan, the defendant determined that the plaintiff would forfeit some of her rights because her employment was terminated on 12 April 2018. That is, the amount of the forfeiture of 11,537 rights was based on termination of employment having occurred on 12 April 2018. 17. Mr McNally submits that all para 17G does is set out what would, on his asserted construction of the 2018 plan rules, be rather obvious. If there was a different termination date, then the amount of the forfeiture would be different. As he says, as set out for example in para 17G(e), if the plaintiff ceased to be employed on a date after 31 July 2018, the defendant was not entitled to forfeit any of the 2018 LTI rights. 18. I frankly would need to know much more about the operation of the 2018 LTI plan to necessarily form a view as to the strength or otherwise of the 2018 claim, and the utility of the relief sought. 19. However, I am satisfied that the amendment is not so futile as to be simply rejected. Again, I am satisfied that the entitlement under the 2018 plan was certainly an issue prior to this proposed amendment. 20. In the circumstances, I propose to allow the third category of amendments. 21. I grant leave to the plaintiff to file the further amended statement of claim which will be dated 4 May 2020. 22. I order that the plaintiff pay the costs occasioned by and as a result of the amendments. ********** Endnotes 1. (2009) 239 CLR 175; [2009] HCA 27. 2. (2001) 53 NSWLR 116; [2001] NSWCA 346. 3. [2001] FCA 1333 at [4]. 4. (1991) 23 NSWLR 84 at 106. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020