Dlakic v MLC Limited [2018] NSWSC 1755

Supreme Court New South Wales

Medium Neutral Citation: Dlakic v MLC Limited [2018] NSWSC 1755 Hearing dates: 15 November 2018 Decision date: 15 November 2018 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [23]. Catchwords: PRACTICE AND PROCEDURE – whether leave ought be granted to amend defence – allegation withdrawn in absence of substantiation – substantiation obtained – allegation sought to be reinstated in amended pleading Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, ss 56, 58 Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2, cll 2, 4 Category: Procedural and other rulings Parties: Amil Dlakic (Plaintiff) MLC Limited (Defendant) Representation: Counsel: Plaintiff in Person HJA Neal (Defendant)

Solicitors: Norton Rose Fulbright Australia (Defendant) File Number(s): 2016/247422

Judgment – EX TEMPORE

Introduction 1. By notice of motion filed on 13 August 2018, MLC Limited (the defendant) seeks leave to file a further amended defence. Amil Dlakic (the plaintiff) opposes the grant of leave. In order to address the motion it is necessary to set out, in some detail, the progress of the proceedings and the background to the amendment.

Background to the application 1. By statement of claim filed on 14 August 2016, the plaintiff claims benefits under an insurance policy issued to him by the defendant. The original defence, which was filed on 10 January 2017, relevantly alleged, in paragraph 3(c), that the policy was cancelled for non-payment of premiums on or about 22 May 2014. This allegation was based on the defendant's computer records. Subsequently, in accordance with directions made by the Registrar, the defendant filed an amended defence on 29 November 2017 in which paragraph 3(c) was deleted. The effect of the deletion was to indicate to the Court and the plaintiff that the defendant no longer alleged that the policy was cancelled for non-payment of premiums on or about 22 May 2014. The reason for the deletion was that the defendant was unable to locate the correspondence it had sent to the plaintiff notifying him of the cancellation. 2. The proceedings have come before the Court for directions on several occasions since their commencement. On more than one occasion, the defendant required an extension for the filing of its evidence. Ultimately, on 7 June 2018, the Registrar directed the defendant to serve any further evidence by way of affidavit by 25 June 2018. The Registrar also made the following direction (in a form otherwise known as a guillotine order): "The defendant is unable to rely on any evidence served after 25 June 2018 without leave of the Court." 1. At the directions hearing before the Registrar on 6 July 2018 the matter was set down for final hearing on 8 April 2019 with an estimate of three weeks. On that day, the defendant read an affidavit sworn on 28 June 2018 by its solicitor, Ganga Narayanan, dealing with the procedural history of the proceedings. In paragraph [51] of that affidavit, Ms Narayanan flagged a proposed amendment to the amended defence to reinstate the earlier pleading that the defendant validly cancelled the policy due to non-payment of the premiums. 2. The defendant has adduced evidence in support of its notice of motion to explain the proposed amendment, the effect of which was as follows. Prior to the filing of the amended defence on 29 November 2017, the defendant decided not to press the allegation that it had cancelled the policy because it had not been able to locate the documents which comprised the required notices which were said to have been sent to the plaintiff. However, after the amended defence was filed, Ms Narayanan received further documents from one of the defendant's senior legal counsel, Philip Robertson (who I take to be an in-house lawyer) which comprised the correspondence by which the plaintiff was notified of the cancellation of his policy. Once those documents were located, the defendant reconsidered its decision to withdraw the allegation that it had a right to cancel the policy on the basis of non-payment of premiums and decided to seek leave to file a further amended defence to reinstate the allegation. 3. Notwithstanding the receipt of the relevant documents in about December 2017, it was a considerable time before the defendant notified either the plaintiff or the Court of the potential amendment. As referred to above, it was first foreshadowed by the affidavit of Ms Narayanan of 28 June 2018. The application was not made until the notice of motion for leave to amend was filed on 13 August 2018. 4. The defendant has explained a significant proportion of the delay. What remains unexplained is the delay from February 2018 (making due allowance for the court vacation from mid-December until the end of January) until 28 June 2018. Mr Neal, who appeared on behalf of the defendant, accepted that there was no satisfactory explanation for that period of time. 5. Mr Neal submitted that, notwithstanding the delay, the interests of justice and the dictates of justice, which are referred to specifically in Part 6 of the Civil Procedure Act 2005 (NSW) (the Act) and in particular s 58, favoured the grant of leave to amend. 6. Mr Dlakic, who appears on his own behalf, opposed leave being granted to file a further amended defence. He also opposed leave being granted to the defendant to be permitted to rely on Mr Lee's affidavit. As referred to above, such leave is required by reason of the direction made by Registrar Kenna on 7 June 2018. Mr Dlakic submitted that the defendant and its solicitors have adopted a cavalier attitude to the proceedings and have persistently breached the directions of the court. He cited a recent instance whereby a subpoena was issued to Mr Scarf at the National Australia Bank but the plaintiff was not notified that a subpoena was to be issued. I note that when the defendant's solicitor became aware of the error the plaintiff was notified and the matter stood over in order to ensure that the plaintiff could have access to the subpoenaed documents.