Chapel Road Pty Limited v Australian Securities Investments Commission (No 7) [2012] NSWSC 584

Supreme Court New South Wales

Medium Neutral Citation: Chapel Road Pty Limited v Australian Securities Investments Commission (No 7) [2012] NSWSC 584 Hearing dates: 24 April 2012 Decision date: 01 June 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Leave sought granted. Catchwords: PROCEDURE - notice of motion - amendment to pleading - granted - reasons for decision Cases Cited: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Category: Procedural and other rulings Parties: Chapel Road Pty Limited (Plaintiff) Australian Securities Investments Commission (Defendant) Representation: Counsel: Mr B Toomey QC (Plaintiff) Mr J Clarke (Defendant) Solicitors: Creagh & Creagh (Plaintiff) Ashurst Australia (Defendant) File Number(s): 2006/266784 Publication restriction: None

Judgment 1By motion filed in March 2012, the plaintiff sought leave to amend its statement of claim and orders for further discovery. These are the reasons why leave to amend the summons was granted at the hearing. 2The proceedings rest on the plaintiff's claim that it lost its securities licence, on which its business depended, as the result of actions wrongly taken by the defendant, in circumstances where it later succeeded in having its license restored to it, but was unable to re-establish its business, given what had transpired during the time that it was unable to operate. Various discovery has been given and it was accepted by the defendant that in large part, the proposed amendments were the result of information which the plaintiff had obtained in that discovery, in relation to matters which could not have earlier been pleaded. 3One issue between the parties was a pleading in relation to the practice which the painltiff alleges that the defendant had and did not apply to it. The plaintiff's case was that this new pleading also rested on discovered documents, which revealed the operation of the practice which the plaintiff wished to plead. This was not accepted by the defendant. 4It was explained for the defendant that while there was an issue as to whether exemplary damages could be awarded in a case such as this, it was accepted that was a matter which would need to be determined at trial. The objections which the defendant pressed rested in large part on its concern that the amendments might result in further discovery being pressed. After a short adjournment the parties announced that there had been discussions about further discovery and it was hoped that this was a matter which could be resolved. 5The defendant still opposed leave being granted to amend the statement of claim, which it submitted would risk more time being required, before the matter was ready for hearing; that the hearing would be lengthier, because more witnesses would have to be called; and because the further discovery pursued, might itself give rise to further applications to amend the pleadings. There was also some criticism of the form of the pleadings, which it was suggested did not squarely plead, even yet, the alleged discriminatory conduct which lies at the heart of the plaintiff's case. It was submitted that pleading different treatment, did not sufficiently raise a complaint of discriminatory conduct, which required a separate pleading. 6It was conceded that having regard to the overriding purpose specified in s 56 of the Civil Procedure Act 2005, it might be concluded that having in mind what the discovered documents had revealed, that the amendment of the statement of claim should be allowed. Nevertheless, it was argued that having in mind the history of the proceedings and questions of cost and the risk of further delay, if the leave sought were granted that the leave ought to be refused. 7I was unable to accept that submission. There had unquestionably been delay. The proceedings were not commenced until 2006. They relate to events which occurred as long ago as 2000. That delay has resulted from various things, including the defendant's successful application for security; the plaintiff's difficulties in providing the necessary security; the parties' ongoing disagreements over discovery; and the time taken to give it. 8I was satisfied, however, that this was not a proper basis for refusing the leave sought, given the defendant's concession that most of the amendments proposed rested on discovered documents. The pleading that the defendant had failed to apply its applicable practices to the plaintiff, treating it differently to the way in which had treated others, has long been foreshadowed. It seemed to me that fairly read, the proposed amended statement of claim did advance a complaint as to differential treatment, which wrongly resulted in the damages pursued, so as to put the defendant on notice of the case advance against it. 9The Court is obliged to exercise its discretions having in mind the overriding purpose provided by the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings and to adhere to the requirements of s 57, which provides: "Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)." 10In making orders as to the amendment of pleadings, it must also 'seek to act in accordance with the dictates of justice', having in mind the matters specified in s58, which include the overriding purpose, as well as the degree of difficulty or complexity to which the issues in the proceedings give rise and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. In Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230, it was observed that: "38 What is vital to appreciate is that the regard to both ss 56 and 57 is statutorily compulsory: s 58(2)(a). They are considerations that are relevant in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24. That is, they are relevant in the sense that the statute requires them to be taken into account. The factors in s 58(2)(b) may be taken into account but whether they are is a matter for the tribunal." 11I was well satisfied, in the circumstances, that the statutory considerations required to be given effect, had to result in the leave sought being granted. The amendments were necessary to ensure that the real issues lying between the parties were properly raised in the proceedings. The delay in these pleadings being advanced was properly explained. It was not as the result of any lack of diligence on the plaintiff's part, that the pleadings had not earlier been amended. That additional cost would result from the amendment was clear, but nevertheless, in the circumstances justice required that the leave sought be granted.