Carlene Randall v City of Canada Bay Council

HIS HONOUR: These proceedings commenced their final hearing before me today. At approximately noon the first plaintiff indicated that she wished to amend her amended statement of claim. The first plaintiff, by leave, appears by her husband Mr Agresta who was the second plaintiff in these proceedings. However, for reasons which I need not record in this judgment, the second plaintiff, as such, plays no further part in the proceedings. His only role now is, by leave, to represent his wife.

I afforded Mr Agresta time from approximately 12.15 until 2 o'clock to formulate his proposed amendment. By about 2.30pm he had done so. His proposed amendment has been admitted into evidence for reference only as exhibit 8P. I have heard submissions both from Mr Agresta and from Mr Newton of Counsel for the defendant. The defendant opposes the amendment.

I considered the applicable legal principles in relation to an amendment in the Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2013] NSWSC 764 at paras 48 to 55:

I will apply what I have just set out and assume in favour of the first plaintiff, without deciding, that the amendment is a necessary one within the meaning of s 64(2) of the CP Act. Notwithstanding that assumption in favour of the first plaintiff, the amendment ought not be allowed. The reasons for that are as follows.

First, even taking into account the fact that Mr Agresta is not legally qualified and making all appropriate allowances for that, the proposed amendment comes too late in the proceedings. It would be seriously disruptive of the orderly conduct of these proceedings to introduce further issues concerning an alternative basis on which the first plaintiff proposes to allege that the judgments of this court and the Court of Appeal in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17 (White J), and Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (Spigelman CJ; Campbell JA; Handley AJA) (the “Phoenix judgments”) were obtained by some form of impropriety or irregularity. Mr Agresta shies away from the use of the word "fraud" and I will take him at his word in relation to that.

This case has been fixed for hearing on the basis of the amended statement of claim, which was filed pursuant to a consent order made on 6 September 2013. The amended statement of claim sets out, as best as possible, the bases on which the first plaintiff wishes to contend that the Phoenix judgments were obtained by some illegality or irregularity. The basis now sought to be propounded in the proposed amendment is new and the defendant has not had an opportunity to consider what implication it may have for the defendant's case beyond the obvious point that a complete review of available evidence will be required.

Second, and more fundamentally than the case management considerations to which I have referred above, the proposed amendment does not disclose any cause of action and is therefore futile. With respect to Mr Agresta, it remains quite difficult to follow the chain of reasoning which he has set out in the proposed amendment. However, one thing is clear and I have sought to elucidate that in exchanges between myself and Mr Agresta. The one thing that is clear is that Mr Agresta wishes to contend that the Phoenix judgments were improperly obtained because the defendant had actual and constructive knowledge of a document known as the "tie in deed". In proposed paragraph 1N the first plaintiff wishes to plead:

That allegation of a representation by silence is unsustainable in its terms. I have been informed by Mr Agresta that during the course of the proceedings at first instance and on appeal, albeit at a late stage in the case of the proceedings before White J, Phoenix was represented by counsel and counsel was well aware of the tie in deed. Phoenix's counsel did not choose to draw attention to the deed. I am quite unable to see how the defendant's failure to draw attention to the tie in deed could be said to be in any way misleading. In particular, silence in and of itself in relation to the tie in deed, in the context of contested proceedings where both parties are represented by counsel cannot, in my view, give rise to a situation of an implied representation by the defendant to the Court that there was no other agreement in existence between the landlord and the tenant. No other facts are proposed to be pleaded that could support the contention that either court was misled by silence as to the existence of the tie in deed in the way the first plaintiff wishes to plead.

Therefore, for both case management reasons and because I am of the view that the amendment taken as a whole, but particularly because of the matters to which I have just specifically drawn attention, must fail, the application to amend the amended statement of claim in accordance with exhibit 8P is refused.