Jiwira v PIBA [1999] NSWSC 985

New South Wales Supreme Court CITATION : Jiwira v PIBA [1999] NSWSC 985 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2920/95 HEARING DATE(S) : 21/09/99 JUDGMENT DATE : 21 September 1999

Jiwira Pty Ltd (P1) PARTIES : Alan Howard Baker (P2) Primary Industry Bank of Australia Ltd (D) JUDGMENT OF : Austin J

COUNSEL : J Young (P) D J Russell (D) SOLICITORS : James Solicitors (P) Owen Hodge Lawyers (D) CATCHWORDS : PRACTICE AND PROCEDURE - amendment of pleadings - amendment of statement of claim to introduce new cause of action after limitation period - relevant considerations under Supreme Court Rules; TORT - abuse of process - ingredients of cause of action Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Clough v Frog (1974) 4 ALR 615 Cropper v Smith (1884) 26 ChD 700 CASES CITED : Hanrahan v Ainsworth (1990) 22 NSWLR 73 McGee v Yeomans [19977] 1 NSWLR 273 Tildesley v Harper (1878) 10 ChD 393 Weldon v Neal (1887) 19 QBD 394 DECISION : Application for leave to amend granted

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

TUESDAY 21 SEPTEMBER 1999

2920/95 - JIWIRA PTY LIMITED & 1 OR v PRIMARY INDUSTRY BANK OF AUSTRALIA ('PIBA')

JUDGMENT (Delivered ex tempore on 21 September 1999, and revised on 23 September 1999)

1 HIS HONOUR: This matter has been set down for a 15 day hearing before me beginning on 9 November 1999. By a Notice of Motion filed on 11 August 1999 the plaintiff sought leave to file an amended Statement of Claim referred to in the materials as the 'Second Further Amended Statement of Claim'. I shall it 'the New Pleading'. The application was heard by me today. 2 The explanation for the need to file a further pleading, such as it is, is contained in the affidavit of Mary Cunningham, a solicitor, who has the conduct of the proceedings on behalf of the plaintiffs' solicitor on the record, dated 10 August 1999. She explains that the original Statement of Claim was prepared by counsel who is no longer retained and there now is litigation between that counsel and the plaintiffs. The plaintiffs have retained new counsel for the amended pleading following advice that the existing Further Amended Statement of Claim ('the Existing Pleading') is not satisfactory, in that it is poorly drafted and all the elements of the plaintiffs' claim are not clear. Ms Cunningham states that it has taken the plaintiff a substantial amount of time to obtain full discovery, and she makes contested assertions about the provision of information by the defendant. 3 According to the plaintiffs, the Existing Pleading is misconceived and mistaken and the problem needs to be cured before the hearing takes place. The plaintiffs' submission to me on this application puts the matter starkly, claiming the Existing Pleading is 'inadequate to the point of being an embarrassing pleading'. 4 When the Court is confronted with an application of this kind, the general approach which it should take is reasonably clear. It is described in the well-known statement of Bowen LJ in Cropper v Smith (1884) 26 ChD 700 at 710, considered and applied by the High Court in Clough v Frog (1974) 4 ALR 615: 'It is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise that in accordance with the rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy. ... as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.' 5 The matter is put even more clearly by Bramwell LJ in Tildesley v Harper (1878) 10 ChD 393 at 398: 'My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he has done some injury to his opponent which could not be compensated for by costs or otherwise.' 6 In this Court the power to grant leave to a party to amend a pleading is dealt with in Pt 20 of the Supreme Court Rules. The Court's general power expressed in very broad terms is in r 1. Rule 4 deals with a case where a relevant period of limitation expires after the date of filing a Statement of Claim and, thereafter, an application is made under r 1 for leave to amend the Statement of Claim. The rule applies in three specific circumstances, set out in sub-rules (3), (4) and (5), though there is an issue as to whether r 1 confers a discretion to add a new cause of action after the expiry of a limitation period outside the specific cases mentioned in r 4: Ritchie's Supreme Court Practice (looseleaf) par 20.4.7. 7 For reasons which I shall explain, the defendant says that the amendment will have the effect of overcoming what would otherwise be a statute-barred claim and so r 4 is applicable. The relevant sub-rule of r 4 in the present circumstances is sub-r 4(5), which is in the following terms: 'Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.' 8 At today's hearing counsel for the defendant informed me that its opposition to the application for leave to amend is now confined to two matters, both relating to new allegations of abuse of process in the New Pleading. I shall deal with them in turn.