Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 6) [2014] NSWSC 1549

Supreme Court New South Wales

Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 6) [2014] NSWSC 1549 Hearing dates: 4, 12, 19 and 26 September 2014 Decision date: 06 November 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Plaintiff's amendments allowed; Defendant's late evidence permitted to be relied upon Catchwords: Practice and procedure - Application to amend pleadings during course of long and complex proceedings - No issue of principle - Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60 and 62 Cases Cited: Kelly v Mina [2014] NSWCA 9 Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 [No 5] [2014] NSWSC 437 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 764 Category: Interlocutory applications Parties: Plaintiff: Macquarie International Health Clinic Pty Ltd Defendant: Sydney Local Health District Representation: Counsel: Mr R. Dubler SC, Mr S. Phillips, Mr A. Harding (Plaintiff) Defendant: Mr G.K. Burton SC, Mr H. Stowe, Mr G. Antipas (Defendant) Solicitors: Plaintiff: S Moran & Co Defendant: Bolzan & Dimitri File Number(s): 2000/34949 Publication restriction: No

Judgment

Summary 1This is the second contested application by the plaintiff ("Macquarie") to amend its pleadings in circumstances where the proceedings have been already dealt with both at first instance and by the Court of Appeal. By an order of the Court of Appeal the matter has returned to a judge of this division to conduct an inquiry into the damages, on the basis specified by that Court, for which the defendant (the "Health District") might be liable to Macquarie. 2I dismissed Macquarie's first application to amend (Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 764 (the "First Amendment Judgment")). That first application was made shortly after I began to case manage the proceedings (the matter first coming before me on 22 May 2013). The hearing of the proceedings had not yet begun. 3In contrast to the timing of that first amendment application, the application which is the subject of this judgment was heard over four days when the hearing was well advanced but far from complete. The argument commenced on what would otherwise have been the thirty ninth day of the hearing and continued over three weeks (the second, third and fourth days taking place on consecutive Fridays at the conclusion of other lists I was managing on those days). The second and third days were also devoted to hearing a contested application by the Health District to rely on certain expert reports that had been served out of time. Given the practical and discretionary considerations involved, the two applications had to be considered together. 4At the conclusion of the argument on the afternoon of 19 September 2014 I informed the parties that I proposed to grant both Macquarie's application for leave to amend and the Health District's application to rely on its late filed reports. Those conclusions were subject to hearing any further argument to the extent that the parties were unable to agree upon the final form of conditions which Macquarie had proffered during the course of the hearing as conditions upon which it submitted leave to amend should be granted. 5On 26 September 2014 I heard short further argument in relation to those conditions of leave. I then made orders setting out the formal resolution of the two applications. These are the reasons for those orders. The orders are set out in Schedule 1 to this judgment (including a minor amendment made under the slip rule on 29 October 2014). 6The reasons for granting the Health District's application may be summarised as follows. In case managing these proceedings the Court has indicated more than once that special care would be taken to ensure that the Health District was not disadvantaged by the lack of an adequate opportunity to meet Macquarie's case because of the exigencies of the dates fixed for hearing. The Court accepts the Health District's explanation for the delay in preparing Messrs Gower's and Arnott's reports. That delay arises from the complexity of the issues rather than any unreasonable delay or lack of diligence on the part of the Health District, its advisers or experts. The fact that the grant of leave will result in the proceedings going over to 2015 to give Macquarie's experts sufficient time to deal with those reports is not a reason to deny the leave. The desideratum of completing the proceedings this year in accordance with the current trial plan cannot be elevated to an end in itself where adherence to it would work a real injustice to one or both of the parties. 7The reasons for granting Macquarie's amendment application may be summarised as follows. The amendments are "necessary" within the meaning of s 64(2) of the Civil Procedure Act 2005 (NSW) (the "Act") to determine the real question raised by these proceedings, being the amount of damages payable by the Health District to Macquarie in respect of being kept out of possession of the carpark site and the hospital site between 17 March 2000 and the date of being restored to possession (which, by agreement, the parties accept in practical terms means the date of my final judgment in this inquiry). The amendments should therefore be allowed unless considerations identified in s 58 of the Act warrant a contrary result. In this case they do not. 8Macquarie's damages claim raises complex legal and factual issues. The Health District has been held liable to Macquarie and the sums at stake are potentially huge. The explanations offered by Macquarie as to why the amendments are being sought at this stage of the proceedings are accepted by the Court. The application does not represent a decision by Macquarie to resile from earlier forensic decisions advisedly made not to advance the case now sought to be advanced by the proposed amendments. 9The Health District will not suffer any irremediable prejudice if the amendments are granted. It will have a proper opportunity to respond to the amended case and that opportunity will not, given the length of the proceedings in any event, significantly delay when the case would otherwise have been likely to finish in 2015. The Health District will have the benefit of an order for costs thrown away and security for that order. There is no suggestion that the costs the Health District will incur in meeting the amended case will be disproportionate to either the sums at stake or the amount of costs it has incurred or will incur. Given these circumstances it would not be just to deny the application and thereby compel Macquarie to advance a case which it no longer wishes to propound.