Aon Risk Services v Australian National University 2009 HCA 27 new requirements for amending pleadings

Publications >AON Risk Services v Australian National University 2009 HCA 27 new requirements for amending pleadings

 

Now that The High Court has consigned J.L.Holdings to the dust bin the late amendment of pleadings just became a lot harder....

 

On 5 August 2009 The High Court handed down its decision in Aon Risk Services v Australian National University (2009 HCA 27) (AON).  It is an important decision as it has distinguished and effectively overruled the earlier decision in The State of Queensland  v  J.L. Holdings Pty Ltd (1997) 189 CLR 146 (JL Holdings).

 

Essentially the decision in J.L. Holdings meant that a party involved in litigation could at virtually any stage of a matter, even during the course of a trial, seek the leave of the court to adjourn a hearing in order make substantial amendments to its case, provided that it was prepared to bear the other party’s costs.  It was authority for the principle that “the ultimate aim of a Court is the attainment of justice and no principle of case management can be allowed to supplant that aim".

However the Court in Aon Risk Services took a different view. In the joint judgement of Gummow, Hayne, Crennan, Kiefel and Bell JJ. their honours expressed the following views:

 

“An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed.  The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of case.  On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

 

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.”

 

By a unanimous decision the appeal was upheld and ANU’s application for leave to amend was dismissed.

 

Consequences of the decision

As a consequence of the AON decision, in future when considering late applications by parties to amend their pleadings, a court will be required to consider factors such as:

 

	questions of delay, not only to the parties in question but also delay to the court and other litigants;
	the explanation for the late amendment;
	wasted costs; and
	the concerns of case management in general.

 

In handing down his reasons Heydon J made the following comments:

 

"The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance.  A party which has a duty to assist the court in achieving certain objectives fails to do so.  A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation?  Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers.  One fears that, in reality, there must be another.”

 

 

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