FEDERAL COURT OF AUSTRALIA
Advanced Switching Services Pty Ltd v State Bank of New South Wales t/as Colonial State Bank [2007] FCA 954
EQUITY – fiduciary relationships – banker and customer – whether bank assumed fiduciary responsibility for the customer – where negotiations at arm’s length – where customer had independent professional advice
Federal Court of Australia Act 1976 (Cth) s 59(2B)
Federal Court Rules O 13 r 2
Trade Practices Act 1974 (Cth) s 82(2)
Agar v Hyde (2000) 201 CLR 552 followed
Brickfield Properties Ltd v Newton [1971] 1 WLR 862 discussed
Commonwealth Bank of Australia v Finding [2001] 1 Qd R 168 discussed
Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 followed
Golby v Commonwealth Bank of Australia (1996) 72 FCR 134 cited
Gray v New Augarita Porcupine Mines Ltd [1952] 3 DLR 1 cited
Maguire v Makaronis (1997) 188 CLR 449 cited
McGee v Yeomans [1977] 1 NSWLR 273 distinguished
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 followed
Truebit Pty Ltd v Westpac Banking Corporation [1997] FCA 1290 (unreported 27 November 1997) cited
NSD 88 OF 2001
RARES J
30 MAY 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 88 OF 2001 |
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BETWEEN: |
ADVANCED SWITCHING SERVICES PTY LIMITED (ACN 077 773 589) Applicant
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AND: |
STATE BANK OF NEW SOUTH WALES TRADING AS COLONIAL STATE BANK (ACN 003 963 228) Respondent
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RARES J |
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DATE OF ORDER: |
30 MAY 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The application to amend the amended statement of claim and amended application be refused with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 88 OF 2001 |
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BETWEEN: |
ADVANCED SWITCHING SERVICES PTY LIMITED (ACN 077 773 589) Applicant
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AND: |
STATE BANK OF NEW SOUTH WALES TRADING AS COLONIAL STATE BANK (ACN 003 963 228) Respondent
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JUDGE: |
RARES J |
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DATE: |
30 MAY 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
1 This is an application to amend the amended statement of claim and amended application which were filed in this Court on 22 October 2002. At the commencement of the trial on 28 May 2007, counsel for the applicant, Advanced Switching Services Pty Ltd, applied to amend the statement of claim without any prior notice to the respondent, formerly the State Bank of New South Wales and now the Commonwealth Bank of Australia. Inconsequential amendments have been granted to change the nomenclature of the bank in the pleading.
NATURE OF AMENDMENTS
2 The other amendments fall into two broad classes. The first class of amendments claims that the bank was under a fiduciary duty, or a duty of disclosure arising by force of s 52 of the Trade Practices Act 1974 (Cth), to disclose certain matters to ASS in connection with the bank’s dealings with a company called Akyman Financial Services Pty Ltd. Both ASS and the bank were having dealings with Akyman in early 1997. The second class of amendments seeks to rectify what I was told was an accidental omission to plead reliance by ASS upon six representations, being the 17th, 18th, 19th, 20th, 21st and 22nd representations alleged in the amended statement of claim. ASS conceded that the amended statement of claim is currently demurrable in respect of those matters and discloses no cause of action in respect of those six representations because of the absence of a plea of reliance.
3 During the argument, which has now gone nearly three days, ASS has twice refined and expanded its amendment application in respect of the non-disclosure issue. Earlier today ASS also sought to further amend its amended application, by claiming relief to have the facility agreement between it and the bank dated 24 June 1997, and the fixed and floating charge of the same date, set aside on such terms as to the repayment of moneys advanced by the bank to ASS and interest as the Court might require, as well as seeking equitable compensation for the alleged breach of fiduciary duty.
FACTUAL BACKGROUND
4 During the hearing a deal of evidence was tendered for the purposes of consideration of the claim of non-disclosure. ASS has asked me to infer that as a result of the discovery of documents in a supplementary list of documents filed by the bank at the beginning of this month, a new claim became apparent to those advising ASS. It was that the bank, in the course of its dealings with ASS, had failed to disclose to ASS a number of matters arising out of the relationship between the bank and Akyman.
5 The documents and other evidence before me show that since at least March 1996 the bank and Akyman had been engaged in an attempt to exploit what was then new technology. The essential feature of the technology was to enable mobile terminals, printers and related software, known as ‘M-Pos’ terminals, to be used by business customers of the bank when they made sales to their customers by credit card or electronic funds transfer. The technology and software were designed and produced by Akyman. ASS, Akyman and the bank intended that these would be marketed to persons who could then use their financial relationship with the bank to sell goods and services to consumers. As I currently understand the position from the pleadings, submissions and other material before me, this technology worked like an electronic funds transfer point of sale, or EFTPOS, terminal.
6 During 1996 the bank and Akyman were trialling these terminals or versions of them with the Australian Jockey Club and the Sydney Turf Club in a business relationship between those four organisations. The bank had made an internal assessment that, in essence, if this technology were proved up and worked it would derive very considerable financial advantages. Early in 1997 representatives of what became ASS, when it finally came to be incorporated on 7 March 1997 (the date I take from paragraph 10 of the amended statement of claim), had discussions with the bank and Akyman in relation to a possible arrangement in which Akyman would appoint a distributor of the products. The evidence shows that ASS, after its incorporation, was advised on its commercial dealings in these negotiations, and its principals were advised, before ASS’s incorporation, in their negotiations, by independent solicitors, Bruce & Stewart. It is clear that all parties (the bank, Akyman and ASS, together with its principals) saw that the exploitation of the technology could lead to substantial profits and long term business relationships.
7 On 20 March 1997 ASS completed its negotiations and signed two commercial distributorship agreements with Akyman. These provided that, before they came into complete force, the bank had to ‘certify’ that certain equipment produced by Akyman which exploited the technology from which they were all seeking to profit, was appropriate for the bank’s purposes. On ‘certification’ ASS would become obliged to place orders for equipment under each of the two agreements for a total price of $2.9 million. One agreement gave ASS a distributorship for New South Wales and the ACT, and the other for Victoria and Tasmania. As I understand the pleadings, the issue of certification by the bank is a critical matter. But, for the purposes of the amendment application, it may be put to one side.
8 Negotiations then proceeded between the parties. On 4 April 1997, according to the proposed amended statement of claim, ASS applied to the bank for a finance facility of about $1.5 million dollars to assist it in establishing the business which it was seeking to exploit. By 21 April 1997 ASS had entered into two dealership agreements with companies which might be able to sell the technology and products to third parties, and ASS placed orders on that date, again conditional on the bank certifying the equipment was appropriate for its purposes.
9 The negotiations between the parties continued. The evidence on this application includes parts of affidavits of Mr Paul Sukkar, a director of ASS and one of its principal shareholders. Mr Sukkar’s evidence involves negotiations he was having with the bank and Akyman. It appears that the result of those negotiations was that ASS and Akyman agreed to create a joint venture company. The joint venture was to have the benefit of a fee‑splitting arrangement that Akyman had come to with the bank in respect of savings of about 30 cents per transaction which the bank would make through the use of the technology.
10 Ultimately, on 11 June 1997 a relationship agreement was entered into by the bank with Akyman. A condition of that agreement (pleaded in par 20 of the amended statement of claim) was that ASS had to consent to it. That consent was given through ASS’s solicitors, Bruce & Stewart, on 13 June 1997. The current pleading then alleges that on 15 June 1997 ASS paid approximately $1.3 million to Akyman. And, as I have said, the facility agreement and fixed and floating charge were executed by ASS on 24 June 1997.
ALLEGED NON-DISCLOSURE AND BREACH OF FIDUCIARY DUTY
11 The proposed amendment pleads the non-disclosure by the bank as involving in substance the following matters. In the circumstances I shall shortly describe, these are said to be matters that the bank became obliged to disclose to ASS when negotiating the proposed terms of the facility and charge. Those matters are:
(1) Akyman had a substantial debt to the bank.
(2) Akyman had applied to the bank for an unsecured loan by way of a letter of credit facility for up to $1.5 million.
(3) Akyman had supplied multifunctional wireless terminals to the bank under a joint venture or an arrangement entitled ‘AJC/STC “Kandu” Wireless EFTPOS/Betting Terminal’ through which the bank considered that:
(a) it could become a market leader in this new technology through its implementation;
(b) it would derive an increased volume of interchange fee income;
(c) as at 11 March 1996, it would derive income with a net present value of a little above $1.1 million; and
(d) it would have an opportunity to derive significantly greater income than its current estimate of net present value if it were able to exploit the wireless terminals in the Australian and South East Asian betting markets.
(4) The bank had entered into a joint venture agreement or an agreement with Akyman under which:
(a) Akyman had agreed to share the service fee of 30 cents per transaction arising from the use by merchants of the new technology in certain circumstances;
(b) during the period from about 19 May 1997 to 24 June 1997 the bank had an expectation that the exploitation of this technology would have a net present value of $11.9 million based on the sale of 5,000 terminals; and
(c) the bank considered it had the opportunity to derive a significantly greater income than that through the potential sale of more than 5,000 terminals.
(5) The bank was involved in negotiations to enter into a formal business alliance with Akyman under which it would become the exclusive acquirer of the wireless technology capable of supporting the EFTPOS machines and smart card applications from which it expected to achieve excellent banking customers and derive substantial income.
(6) The bank was in a position in which it was likely to lose prospective new business and/or existing business if Akyman’s business did not succeed.
(7) The bank and Akyman had agreed that Akyman would install at its own cost another front end processor which was connected to the bank’s computer system, eliminating the need for the bank to pay a 10 cent per transaction switching fee for EFTPOS transactions to a third party and thus increasing the overall profit (to the bank) from using the new technology.
12 Critically, the proposed amendment pleads in pars 21C-21G the following:
‘21C. During the period between 4 April 1997 and 14 June 1997 State Bank represented to the Applicant:
‘(a) that the Finance Application was the best and quickest arrangement that could be done for the Applicant (First Finance Representation).
PARTICULARS
The first Finance Representation was oral and was made by Mr Mark Burrowes on behalf of State Bank to Mr Paul Sukkar on behalf of the Applicant;
(b) that the interest rates being offered by State Bank in connection with the Finance Application were the best available (Second Finance Representation).
PARTICULARS
The Second Finance Representation was oral and was made by an officer of State Bank to Mr Paul Sukkar on behalf of the Applicant;
(c) that State Bank wanted the Finance Application to proceed as quickly as possible (Third Finance Representation).
PARTICULARS
The Third Finance Representation was oral and was made by an officer of State Bank to Mr Paul Sukkar on behalf of the Applicant;
21D. By reason of having made by First, Second and Third Finance Representations in the circumstances, State Bank created an expectation in the Applicant that it would advise in the Applicant’s interests as to the wisdom of proceeding with the Finance Application.
PARTICULARS
Mr Paul Sukkar on behalf of the Applicant fairly took it that to a significant extent its interest was consistent with that of State Bank in financing the Applicant for a prudent business venture.
21E. In the premises State Bank owed a fiduciary duty to the Applicant:
(a) to avoid placing itself in a position where its personal interest as banker of Akyman, joint venturer with Akyman and prospective joint venturer with Akyman conflicted with its duty to the Applicant;
(b) to eschew conflicting arrangements as banker to Akyman and as prospective banker to the Applicant.
21F In breach of its fiduciary duty to the Applicant, State Bank placed itself in a position where its personal interest as banker of Akyman, joint venturer with Akyman and/or as prospective joint venturer with Akyman conflicted with its duty to the Applicant.
PARTICULARS
It was in the personal interest of State Bank:
(a) that it assist Akyman to procure electronic componentry for its wireless terminals without increasing Akyman’s indebtedness to State Bank;
(b) that Akyman’s business succeed so that Akyman could discharge its indebtedness to State Bank, and State Bank could participate in the profits arising from each transaction using Akyman’s wireless terminals;
(c) that the Applicant proceed with the Finance Application;
(d) that the Applicant not be informed of all the facts and circumstances as to the dealings and prospective dealings between State Bank and Akyman that were relevant to its decision to proceed with the Finance Application, and in particular the matters pleaded in paragraph 21A above.
State Bank owed a duty to the Applicant to advise in the Applicant’s interests as to the wisdom of proceeding with the Finance Application by reason of the facts pleaded in paragraphs 21C and 21D above.
21G. In further breach of its fiduciary duty to the Applicant, State Bank did not eschew the conflicting arrangements as banker to Akyman and prospective banker to the Applicant.
PARTICULARS
State Bank proceeded with the Finance Application and entered into the Facility Agreement with the Applicant.’
13 In the alternative, proposed pars 21H-21N allege that the matters that I have set out above should have been disclosed by the bank to ASS and the failure of the bank to do so amounted to a non-disclosure by silence, in effect, of the fiduciary duties said to have arisen in the circumstances pleaded. The non-disclosures were said to be that:
(1) the bank’s personal interest as banker of Akyman did not conflict with its duties as the prospective banker of ASS;
(2) the bank’s arrangements as the banker of Akyman did not conflict with the arrangements it had as ASS’s prospective banker;
(3) the bank’s arrangements as banker of Akyman would not conflict with the arrangements it would enter into as ASS’s banker.
14 The proposed pleading then alleges that each of these representations was false and that, by failing to make disclosures when they were called for, the bank had engaged in misleading and deceptive conduct or conduct likely to mislead or deceive ASS in contravention of s 52 of the Act. Alternatively, it was alleged that the conduct relied on to support the non-disclosure allegations amounted to unconscionable conduct by the bank in which it had engaged in trade or commerce with ASS within the meaning of s 51AA of the Act. An alternative was also pleaded that the conduct engaged in, in relation to the supply or possible supply of services to ASS, was, in all the circumstances, unconscionable and a contravention of s 51AB of the Act.
15 The evidence showed that during the course of the negotiations in early 1997, Mr Sukkar came into possession of certain correspondence and other material passing between Akyman and the bank, as a result of his discussions with his fellow director in ASS, Mr Barrow, and Mr Nicolau, of Akyman, together with his solicitors. That material included a letter of 4 February 1997 from Akyman to the bank which Mr Sukkar said was handed to him in about March 1997. It set out details of a number of transactions or business ventures in which Akyman was either then engaged or interested, including the AJC-STC electronic betting arrangement that had been entered into two years before. The letter noted the initial pilot had been successful and that the relevant terminal had been certified by the bank and by the Gaming Commission and that Akyman had a contract to deliver over 10,000 units. A number of other proposed features of the relationship between Akyman and the bank was set out in the letter, including a wish to manufacture, deploy and support between 30,000 and 50,000 wireless units in the first year, and the need for Akyman and the bank to establish a strategy of success for a network larger than the major banks’ infrastructures. It also set out a number of issues that needed to be considered.
16 Mr Sukkar also attached to his affidavit a letter dated 3 March 1997 from his solicitors, Bruce & Stewart, to another firm of solicitors (which I infer were Akyman’s), namely John P McCaffrey & Co. That letter was written before ASS was incorporated. It recorded the solicitors’ instructions that Messrs Barrow and Sukkar were committed to the project and wished to complete the necessary legal documentation as soon as possible. It referred to a joint venture proposed to be developed between Akyman on the one hand and Messrs Barrow and Sukkar on the other. I think it is safe to infer that the benefit of that proposed joint venture was intended to, and did, pass to ASS when it came to be incorporated a few days later. Further, the letter proposed that there would be a joint venture company set up between Akyman and the Barrow/Sukkar interests through which the latter, as distributor company, would buy terminals from Akyman and arrange to have them distributed through a dealer network including, probably, Strathfield Car Radios. (One of the dealership agreements of 21 April 1997 to which I have referred was executed with Strathfield Car Radios.) The joint venture company, so Bruce & Stewart’s letter continued, would enter into fee sharing arrangements with the bank and other entities, and receive revenue flows from those sources. It also commented on a draft agreement and noted that one of the matters that needed to be further explored between those two parties involved dealings with the revenue sharing arrangements that Akyman had negotiated, by then, with the bank.
17 Mr Sukkar’s evidence also included statements that in about April 1997 he had a discussion with Mr Barrow concerning the funds which ASS was supposed to contribute to finance the purchase of the terminals. These funds, as I infer, were to be paid by ASS from the benefit of its distributorship agreements once it had submitted the orders following the bank’s certification of the products. Mr Barrow is alleged to have told Mr Sukkar that Akyman was placing ASS under pressure to purchase the minimum quantities of terminals and that Mr Sukkar had to organise finance as soon as possible. Mr Sukkar indicated that he had been ‘hassled’ as well and that discussions were occurring with the bank to arrange a letter of credit facility.
18 Because the application to amend had been made without notice and raised new facts in relation to conversations said to have occurred between Mr Sukkar and officers of the bank, the bank asked for Mr Sukkar to give oral evidence in chief on the voir dire about the conversations which were relied on by ASS. I permitted this to happen and Mr Sukkar was asked about the three representations pleaded in paragraph 21C. His evidence was relevantly as follows:
‘Mr Sukkar, during the period from 4 April 1997 to 14 June 1997 did you have communications with officers of Colonial State Bank with respect to an application by Advanced Switching Services for finance?‑‑‑Yes, I did.
Did you have a conversation with a Mr Mark Burrowes?‑‑‑That’s correct.
Was it in person or over the telephone?‑‑‑It was over the telephone due to distance.
Can you tell his Honour what was said in that telephone conversation please?‑‑‑I spoke to Mr Burrowes prior to speaking to Jeff Barrow who was a director of the company.
MR FORSTER: I object.
HIS HONOUR: I think if you just tell me what was said between you and Mr Burrowes?‑‑‑Mr Burrowes said this would be the quickest and best way to proceed and to – it would be the best rates he’d be able to give.
MR BLAKE: Did Mr Burrowes say anything else to you?‑‑‑He said it would be the quickest way to procure finance.
In connection with the application for finance did you have a conversation with a Colonial State Bank officer by the name of Bingham or something sounding like Bingham?‑‑‑To the best of my recollection it was Eddie Bingham from the finance department in Colonial Bank.
Was that a conversation, a face-to-face conversation or over the telephone?‑‑‑It was also over the telephone.
The issue of interest rates was that raised with Mr Bingham?‑‑‑It was, yes.
On that topic can you tell his Honour what was said in your conversation with Mr Bingham?‑‑‑Mr Bingham stated that they were the best rates that I would be able to achieve.
Did you have any other conversations with Mr Bingham or a name sounding like that in connection with the application for finance?‑‑‑Yes.
Were they in person or over the telephone?‑‑‑Also over the telephone.
Can you recall what was said in any further conversations?‑‑‑Basically he said that he wanted to – he wanted us to proceed quickly in order for Mark Nicolau to be satisfied that we could sort of raise the funds and proceed with the letter of credit.
Was anything else said in that conversation that you can recall?‑‑‑That they were the best interest rates he would be able to give us.
HIS HONOUR: Who was he that you are referring to; was that Mr Bingham again?‑‑‑He was an officer of the bank. Eddie Bingham I believe his name was.
MR BLAKE: End of conversation, your Honour.
HIS HONOUR: That is the evidence you want to rely on?
MR BLAKE: Yes, your Honour.’
PRINCIPLES FOR AMENDMENT
19 The first question which needs to be determined, in the application to amend, is whether the proposed pleading raises a cause of action which is fairly arguable. I have taken this formulation from the reasons of Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154-155. They said that if a matter were fairly arguable then, ordinarily, the party seeking to amend ought to be permitted to argue it, provided that any prejudice to the other side might be compensated by costs. Kirby J, in concurring, also pointed to other prejudices and considerations which may inform a proper exercise of the discretion to permit amendment (JL Holdings 189 CLR at 170-171).
CONSIDERATION
20 The first representation said to give rise to the expectation pleaded in paragraph 21D came out of the conversation between Mr Burrowes of the bank and Mr Sukkar. Mr Burrowes said that it would be the quickest and best way to proceed, they would be the best rates that he would be able to give and that the application then being discussed would be the quickest way to procure finance.
21 The second representation on which the expectation in paragraph 21D was said to have been raised arose out of a conversation with Mr Bingham. The evidence before me is that he is no longer an officer of the bank, his whereabouts are not known and he was not previously considered to be a person who would be a witness in the proceedings. Mr Sukkar says that Mr Bingham told him over the telephone that the issue of interest rates was raised and Mr Bingham said that the rates then discussed would be the best that Mr Sukkar would be able to achieve. And, at a later time, he said that he wanted ASS, in effect, to proceed quickly in order for Mr Nicolau or Akyman to be satisfied that ASS could raise the funds and proceed with a letter of credit. Mr Bingham was also claimed to have said that they were the best interest rates he would be able to give to the applicants.
22 I am of opinion that the circumstances described in Mr Sukkar’s evidence do not suggest any situation in which an expectation could reasonably be seen to have arisen that the bank was taking on a role of financial adviser. The statements appear to me to be typical of the kind one would expect to have been made during the course of any negotiations with a financial institution in discussing the terms on which finance might be granted.
23 There is a slightly different complexion in the context here because in the third conversation, according to Mr Sukkar, Mr Bingham was saying that the bank wanted the transaction to proceed quickly so that Mr Nicolau (of Akyman) could be satisfied that the bank would provide ASS with finance facilities. However, none of these matters seems to me to be anything other than the normal sorts of to-ing and fro-ing one would expect between bankers and potential or actual customers discussing rates and terms and whether the bank would be able to give them better rates or terms or not and how quickly things should proceed. The statements by the bank officers display elements of commercial puffery. But I am of opinion that they are not capable of creating a situation in which it could be said that the bank had assumed, would assume, or could be put into a position where it owed, fiduciary duties to disclose matters to ASS.
24 In Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 391 Davies, Sheppard and Gummow JJ looked at a situation in which a bank was held to have entered into a fiduciary relationship with its customer. Their Honours noted that it was not a novel proposition, where a bank gave a customer advice upon financial affairs, that in addition to any contractual rights the customer may have, the relationship between the parties may be such as to found either a breach of a common law duty of care or a breach of a fiduciary duty. And they said that in many cases the bank as financier would have a manifest personal interest of its own in the matter.
25 They said that the question then became one of ascertaining whether, given the apparent commercial self-interest of the bank, it also could be taken to have assumed a fiduciary responsibility towards the customer in question, and emphasised that the context and factual settings were critical in that regard. Their Honours said that a bank could be expected to act in its own interests in ensuring the security of its position as a lender to its customer (Smith 42 FCR at 391):
‘… but it may have created in the customer the expectation that nevertheless it will advise in the customer’s interests as to the wisdom of a proposed investment. This may be the case where the customer may fairly take it that to a significant extent his interest is consistent with that of the bank in financing the customer for a prudent business venture. In such a way the bank may become fiduciary and occupy the position of what Brennan J has called “an investment adviser”; Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 at 384-385.’
26 Their Honours went on to emphasise that the case before them was not one where one would properly describe the parties as acting in a commercial transaction at arm’s length and each with the assistance of fully independent professional advice (Smith 42 FCR at 392).
27 I am of opinion that the evidence before me on this application has every characteristic of a transaction of the latter description. This involved a business proposition that was being considered by ASS and its principals over a period. They had the assistance of fully independent professional advice from their solicitors, Bruce & Stewart. In his affidavits, Mr Sukkar noted disclosures that the bank and also Akyman had made, to some degree, at the times when Bruce & Stewart were advising first him and Mr Barrow and, later, ASS. There was also some further disclosure to ASS because its consent had to be given to the relationship agreement between the bank and Akyman.
28 The matters alleged to have been relevant for the bank to disclose, again, have features which suggest that much of this material could be taken to have been known to ASS or its principals during the course of the relationship. Of course, the mere fact that ASS had some knowledge is not an answer to a claim of breach of fiduciary duty. In order to discharge his or her duty the fiduciary must disclose fully and frankly the nature and extent of any conflict between his or her duty and or interest and the interest of the person to whom the fiduciary owes the duty. As Lord Radcliffe said in giving the advice of the Judicial Committee in Gray v New Augarita Porcupine Mines Ltd [1952] 3 DLR 1 at 14 of a director’s duty to disclose to the company’s board:
‘The amount of detail required must depend in each case upon the nature of the contract or arrangement proposed and the context in which it arises. It can rarely be enough for a director to say “I must remind you that I am interested” and to leave it at that, unless there is some special provision in a company’s articles that makes such a general warning sufficient. His declaration must make his colleagues “fully informed of the real state of things” (see Imperial Mercantile Credit Ass’n v Coleman (1873), LR 6 HL 189 at p 201, per Lord Chelmsford). If it is material to their judgment that they should know not merely that he has an interest, but what it is and how far it goes, then he must see to it that they are informed (see Lord Cairns in the same case at p 205).’
29 And, Brennan CJ, Gaudron, McHugh and Gummow JJ said in Maguire v Makaronis (1997) 188 CLR 449 at 466 (footnote omitted) (which was approved by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [107]):
‘What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.’
30 Likewise it would not have been enough for the bank simply to rely on the fact, had a fiduciary relationship come into existence, that Mr Sukkar or Mr Barrow or anyone else acting on behalf of ASS knew the bank had some relationship with Akyman. In those circumstances it would have been necessary, as the proposed amendment alleged, for the bank to make a full and frank disclosure, and to receive a fully informed consent, before any discharge from the obligations of a fiduciary could be relied on by the bank (see too Furs Limited v Tomkies (1936) 54 CLR 583 at 592-593 per Rich, Dixon and Evatt JJ).
31 However, the matters which were actually disclosed during the negotiations, and the active role of Bruce & Stewart in giving independent legal advice to ASS in the relevant period, bear on the question of whether the bank had become a fiduciary of ASS.
32 The salient feature of this application to amend, it seems to me, is that the conversations relied on to create the fiduciary duty between Mr Sukkar and the two bank officers are of such an inconsequential nature. They included two conversations made over the telephone on the subject of interest rates and the promptitude of when something might be done. I do not consider that this amendment could be said to be fairly arguable or that it should be allowed to proceed to trial.
33 Because of the transitional provisions introducing s 31A into the Federal Court of Australia Act 1976 (Cth), the test in that section for summary dismissal of causes of action cannot be applied on the present application. For the purposes of determining fair arguability, rather, I must have regard to the line of authority exemplified in Sir Garfield Barwick CJ’s judgment in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, particularly at 129-130. Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde (2000) 201 CLR 552 at 576 [57]:
‘The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were to be allowed to go to trial in the ordinary way.’
34 I am satisfied on the material before me that there is a high degree of certainty this amendment would not be able to succeed as pleaded and ought not to be allowed to go to trial. Other factors which have induced me to come to this conclusion are as follow. The discussions that Mr Sukkar said occurred with the bank officers did not take place in circumstances where it might be expected, ordinarily, that reasonable persons in the position of the parties or Mr Sukkar himself would regard the bank as giving him financial advice, as opposed to simply putting forward the bank’s position, even if that position were being put perhaps forcefully or determinedly.
35 After all, this was a situation in which the bank had no pre-existing relationship with ASS upon which any reliance has been placed in this hearing. There is no evidence that the bank offered any financial advice other than what is said to have come out of the three snippets of conversation that have been put forward. Even in those conversations the bank officers did not express, in direct terms, any obligation which the bank was assuming or discharging to provide advice about its services or banking products, as opposed to it making assertions of the kind which one sees every day in advertising in the ordinary course of life (see too In re Coomber; Coomber v Coomber [1911] 1 Ch 723 at 728-729 per Fletcher Moulton LJ).
36 On a number of occasions the courts have considered claims in which bankers have been sought to be made into fiduciaries of their customers. Recently, in Commonwealth Bank of Australia v Finding [2001] 1 Qd R 168 the Court of Appeal of the Supreme Court of Queensland considered a case in which a bank was in the position of being a mortgagee exercising power of sale as well as being financier of the purchaser. The Court held that no fiduciary duty to the incoming purchaser arose in the bank on the facts in that case. In coming to that conclusion they referred to a number of authorities in this Court, the High Court and elsewhere. They pointed out that in other cases where a relationship of a fiduciary nature between banker and customer arose, the bank had assumed the role of financial adviser, or perhaps had brought parties together, and the customer had placed complete faith and confidence in the adviser, as one would expect in a fiduciary relationship. In a passage quoted with approval by the Court of Appeal in Finding [2001] 1 Qd R at 172, Hill J had said in Golby v Commonwealth Bank of Australia (1996) 72 FCR 134 at 136:
‘It is not a critical feature of a banker/customer relationship that the banker undertakes or agrees to act for or on behalf of or in the interests of its customer in the exercise of some power or discretion affecting the interests of the customer in a legal or practical sense. Absent therefore some special feature, such as the giving of advice in Smith [42 FCR 390], there is no reason to erect a fiduciary relationship between bank and customer when that relationship is essentially one founded in contract.’
37 The Queensland Court of Appeal also quoted with approval what Branson J had said in Truebit Pty Ltd v Westpac Banking Corporation [1997] FCA 1290 at p 28. Her Honour set out the following passage from Meagher RP, Gummow WMC and Lehane JRF, Equity: Doctrines and Remedies (3rd ed, Butterworths, 1992) at pp 130-131, which read:
‘The distinguishing characteristic of a fiduciary relationship is that its essence, or purpose, is to serve exclusively the interests of a person or group of persons; or, to put it negatively, it is a relationship in which the parties are not each free to pursue their separate interests.’
Her Honour then continued:
‘There is thus an inconsistency between the notion of Westpac assuming a fiduciary duty to the applicants in respect of its treatment of their application for finance and the maintenance of Westpac’s “own commercial self interest as lender”. Moreover, there is a commercial, and possibly conceptual, unreality surrounding the contention that Westpac was entitled to consider the applicants’ application for finance both in the applicants’ interest and in Westpac’s own interest as the proposed lender to the applicants, but not in Westpac’s interest as the mortgagee/lender exercising through a receiver the power of sale in respect of [the property].’
38 And as Davies and Pincus JJA with Derrington J pointed out in Finding [2001] 1 Qd R at 173-174 [13], there was no evidence in that case of reliance upon the advice of the bank in relation to the transaction, nor was there evidence of the customers holding any expectation that the bank would disclose the relevant information or that it had assumed the role of adviser to the customers. Here the proposed amendment does not make any allegation of reliance by ASS upon the advice given by either Messrs Burrowes or Bingham in relation to interest rates, timing of finance or the quality of the terms proposed by the bank. In those circumstances, the proposed pleading does not reveal a cause of action that I regard as fairly arguable.
39 I would also observe in passing that, unlike what had happened in the cases to which I have referred, much of what was pleaded as material which the bank ought to have disclosed suggested that, had disclosure been made, the proposition of dealing with Akyman would have appeared even better from ASS’s point of view than it had on what ASS already knew. Although the bank had made its own internal estimates as to how profitable the business was likely to be, based on the sales projections which it had been given by Akyman, it is likely that much of that material had been already provided to ASS by the same source (Akyman) in one form or another, albeit it is possible that it may not have provided all of it. In any event, these observations do not affect the matter because, if there were a duty to disclose, the bank would have had to discharge its obligation to give a proper disclosure.
40 The sufficiency of disclosure by a fiduciary can depend on the sophistication and intelligence of the person to whom it is made, so that it can truly be said that his or her consent is fully informed. That is a question of fact in all cases (Farah Constructions [2007] HCA 22 at [107] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Because I am of opinion that no fiduciary obligation arose, it is irrelevant for me to consider the question of sufficiency of disclosure in the context of whether the proposed amendment is fairly arguable (cf: Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 at 198-199 [77]-[79] per McHugh, Gummow, Hayne and Callinan JJ).
41 For the reasons that I have given that there is no fairly arguable cause of action that the bank owed any fiduciary obligations to ASS as alleged in the proposed amendment, it follows that the claims made under the Act, in respect of ss 52, 51AA and 51AB, also fail to meet the threshold of disclosing a case that is fairly arguable. The bank’s conduct is alleged to be misleading and deceptive because of its failure to disclose. This is, in effect, an attempt to plead fiduciary duties as ones which arise under the Act(cf: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 465D-467B). I am of opinion that fiduciary duties or duties of the kind pleaded here do not arise under the Actindependently of a fiduciary relationship. The Act prohibits corporations from engaging in conduct that is misleading or deceptive or likely to mislead or deceive. There is nothing in the material before me that suggests that, in the ordinary situation of trade or commerce, a bank would be expected to disclose matters of the kind set out to its customer. Indeed, a customer would be expected to know the bank may well have had personal interests in the transaction. It is the business of banks to engage in transactions of lending money to customers in order to make profit from interest rates and the terms of their arrangements. Likewise, banks engage in commercial transactions of the kind which the parties were discussing between themselves for the exploitation of the Akyman technology, in order to make money.
42 I do not think that it would be expected, in the ordinary course of trade or commerce, for one person interested in exploiting technology to their advantage to have to disclose everything about its plans to another with whom it was negotiating. Particularly is this so where there is no suggestion in the material before me that ASS perceived itself to have a similar fiduciary obligation in relation to the bank in respect of the very transactions in which it was engaged. However, ASS has not sought to plead that it owed any fiduciary duties to the bank. It is not relevant to the question whether the proposed amendment is fairly arguable that ASS has made no pleaded allegation that it also owed fiduciary duties to the bank, as it may well have been thought to, if as it alleged the bank owed such duties to it arising out of their relationship. I have not placed any reliance on the absence of any allegation by ASS of this kind.
DISCRETIONARY CONSIDERATIONS
43 I should say that had I been of opinion that the amendment application was one which raised a fairly arguable claim, I would have refused the amendment in any event. The application was made very late in the proceedings. Indeed, it was first raised at the very beginning of the first day of the trial that had been set down since 1 December last year. The critical conversations relied on were first raised as issues during this hearing; that is, about 10 years or more after they were said to have occurred.
44 In JL Holdings 189 CLR at 154-155 Dawson, Gaudron and McHugh JJ referred to considerations of case management as having a relevance, albeit that they should not in the ordinary course outweigh the ultimate need for the Court to do justice between the parties. Likewise, I am of opinion that part of the balance in which justice between the parties in the present application is to be viewed, is the fact that these proceedings have been on foot for six years and involve events that took place over 10 years ago, among other events. The allegations involve quite new claims and matters in the context of the existing pleadings and extensive affidavits. These related to conversations of which Mr Sukkar has been well aware at all times, since he was a party to them when they occurred (see too Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 at 334 [32] per Hill, Madgwick and Conti JJ).
45 ASS submitted that some of the material in the documents newly discovered by the bank alerted those advising ASS to the possibility of this claim. But that is not a statement that anyone has made on oath nor has it been tested. I have been asked to infer that that is the case. An amendment of this significance, if granted, would require the bank to review the whole of its case and the way in which its relationship with ASS developed and proceeded in the first half of 1997. I am not satisfied that this task could fairly be undertaken by the bank in a short time. This would mean that the bank would have to find and interview witnesses as well as to subpoena documents from others. It includes the possibility that it would have to find Mr Bingham, its former officer, if he is still able to give evidence and if he has any recollection of the events so long afterwards. It is not suggested by ASS that there are any bank manager’s diary notes evidencing any of the three conversations relied on so that, at the moment, there is no contemporaneous record of the conversations upon which anyone can rely. It may be that the bank is able to do a search within its own records and discover those, but the evidence before me indicates that it is likely that in the ordinary course those documents that have not been the subject of discovery could have been destroyed by now, although no search, at the moment, has been undertaken. I have had regard to the possibility that new documents could be located.
46 But even then it may be necessary to subpoena others, such as, for example, Bruce & Stewart. Again, I must have regard to the likelihood that documents which that firm had at the time may now have been destroyed, since some of the applicable limitation periods applying to its dealings with ASS and its principals have since expired, albeit that there is a potential for some causes of action to have remained, such as those depending on damage occurring quite some time after the transactions.
47 All these matters suggest to me that there could be substantial delays in the further hearing of the matter with possibilities of real prejudice to the bank. Moreover, the evidence before me indicates the value of the bank’s security is in the order of about $1.5 million less than its claimed debt. There is no evidence from ASS as to its current financial position or its ability to meet any such difference. In JL Holdings 189 CLR at 154 Dawson, Gaudron and McHugh JJ referred to the fact that if the case was fairly arguable then the party seeking the amendment should be permitted to pursue it ‘... provided that any prejudice to [the other side] might be compensated by costs’.
48 On the evidence, before me, I am not satisfied that there is any real prospect of the bank being compensated by costs in this case were it ultimately to be successful. Indeed, I am satisfied that the bank is likely to suffer a substantial shortfall in the realisation of any security should it succeed in these and the related proceedings in enforcing those securities and recovering judgment against ASS and the guarantors of ASS. In those circumstances it would be an empty mantra for the Court to say simply that an order for costs would be sufficient. ASS’s senior counsel indicated during argument that, if its application were granted, attempts would be made to provide evidence of its ability to pay or provide security for $40,000 in a manner satisfactory to the Court to secure the bank’s costs thrown away, together with the value of the 10 days’ interest on the outstanding moneys claimed by the bank (about $15,000).
49 I am not satisfied that this security would compensate the bank against the prejudice an amendment would occasion. This is not merely because of the bank’s loss of the opportunity to have a hearing that has now been fixed to commence this week for over six months. The prospect is that that hearing will be delayed further. In the meantime the shortfall in value of the bank’s securities would be likely to increase. In the circumstances I am of opinion that the cause of action sought to be raised by the amendment is not sufficiently strong as to warrant the exercise of my discretion, balancing all the interests of the parties as best I can on the material before me, so as to conclude that it is in the interests of justice to allow the amendment.
THE RELIANCE AMENDMENT
50 The second basis on which the application to amend has been contested is that ASS wishes to plead its reliance upon the six representations to which I have referred. The proposed pleading refers to a number of activities which ASS is said to have undertaken in reliance upon the six representations.
51 There is a dispute between the parties as to whether or not the evidence currently filed supports or answers those aspects of reliance. But, it is accepted by ASS that other than two paragraphs in the amended statement of claim, no material facts are pleaded at present which would be sufficient as instances on which ASS could be found to have relied on any of the six representations. ASS pointed to pars 55 and 56 of the amended statement of claim. They alleged that, first, on 11 March 1999 the bank proposed to ASS and Akyman that sales of the EFTPOS product cease until such time as particular identified problems with it were rectified, and, secondly, on 15 March 1999 Akyman responded by telling the bank that its proposal would be addressed by an upgrade to the third release of the product. But those allegations appear to be ones involving activity by Akyman, not by ASS.
52 I am of opinion that the matters sought to be pleaded in the proposed pars 54A, 58A, 61A and 63A allege material facts necessary to complete a cause of action under s 82(1) of the Act, namely the fact of reliance on the relevant representation, together with facts said to evidence such reliance which are, again, material to the allegation. And, that is to say, the new allegations of reliance were, in each case, material to support a conclusion that damage had been suffered by ASS ‘by the conduct’ of the bank, allegedly done in contravention of s 52. That being so, the current pleading fails to articulate the material facts necessary to support a cause of action in respect of the six representations, namely that ASS relied on any of the representations to its detriment and so its damage was caused ‘by the conduct’ of the bank.
53 It is important to plead material facts in order to identify what is alleged will be the essential matters to be proved to establish a party’s legal right to relief or resist the grant of relief to the opponent. Under the judicature system of pleading, such as is maintained in this Court, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant: Agar v Hyde 201 CLR at 577-578 [64]. The essentiality of pleading the material facts, as opposed to even pleading a statute pursuant to which relief might be claimed, was emphasised recently in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at 264-265 [38]-[40] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; and see also Air Link Pty Ltd v Paterson (2005) 223 CLR 283 at 298-299 [25]-[32].
54 Here, as ASS accepted at the outset of its argument, the facts pleaded in the amended statement of claim in respect of the six representations required an allegation of reliance in order to complete the essential elements of a cause of action under s 82. But, the pleading omitted any allegation that any of the six misrepresentations caused ASS to do or refrain from doing anything (cf: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525, 527 per Mason CJ, Dawson, Gaudron and McHugh JJ). Accordingly, the facts pleaded in the current amended statement of claim do not disclose a basis upon which relief might be granted. Hence ASS seeks an amendment to assert the material facts in respect of its reliance.
56 If ASS were to attempt today to plead for the first time any such cause of action, it would be outside any applicable limitation period under s 82(2) of the Act. That provides that a cause of action under s 82(1) may be commenced at any time within six years after the day on which the cause of action that related to the conduct accrued. No suggestion was made in argument that the causes of action on each of the six representations had not accrued at least by some time in 2004. This has had the consequence that if I do not grant this amendment, the causes of action cannot be retrieved.
57 Before me there was a debate as to the scope of the power to amend conferred by s 59(2B) of the Federal Court of Australia Act 1976 (Cth) and O 13 r 2 of the rules. Senior counsel for the parties were not able to refer to any case in which an amendment had been granted to add material facts necessary to complete a defective pleading of a cause of action, after the expiry of the applicable statute of limitation. The cases to which counsel referred were based on the powers of amendment under rules of various courts. Each involved a situation arising expressly under one of the various rules of court which dealt with a situation such as misnomer of a party (see Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231) or to correct mistakes in nominating the capacity in which a party sued.
58 Section 59(2B) of the Federal Court of Australia Act 1976 (Cth) contemplates that rules may be made to provide for amendment of a document in a proceeding even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because, at the time of the amendment, the period of limitation in which the remedy could be sought had expired.
59 The bank argued that the use of the words ‘the remedy’ in this section confined the power to amend to a claim for relief, as opposed to a pleading of the material facts. I do not consider that that is the proper construction of the power. I am of opinion that the scope of s 59(2B) is to enable the Court to allow an amendment in such terms as give the Court, ultimately, jurisdiction to hear and determine the claim for the remedy. This must include the power to permit a party to amend so as to plead the material facts on which such a remedy can be sought. After all, that is the function of the pleading. It follows that the power to make rules under s 59(2B) is sufficiently wide to permit a document, including a pleading, to be amended to rectify such a deficiency and thereby to allow a person to seek a new remedy because that deficiency is rectified.
60 While O 1 r 8 permits the Court to grant a dispensation from any requirements of the rules, it is a power which falls to be exercised according to the interests of justice. In circumstances where the effect of a statute of limitations has been to extinguish or bar a remedy on a cause of action not then pleaded, I am of opinion that the interests of justice require the Court to have regard to the judgment of the legislature in determining what the cut-off period should be.
61 Of course there will be cases in which material facts have already been pleaded that demonstrate that a remedy not already sought should be allowed to be sought or that some expansion of the circumstances relied on as material facts may be permitted because they are, in substance, fairly pleaded already. But there are also considerations of policy behind the enactment of statutes of limitations, as the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-554 demonstrates with clarity. In a case like the present the effect of delay on the quality of justice may be seen to be an important factor in the legislative choice of the six year limitation period in s 82(2) of the Act.
62 Here I think it is fairly safe to infer an oversight has occurred in the pleading of the amended statement of claim which the proposed amendment now seeks to rectify. In JL Holdings 189 CLR at 154-155, 170-171 the Court was mindful that amendments to rectify such oversights ought ordinarily to be granted if they can be done without injustice to the other party. The question here is whether an injustice will be done by taking away from the bank the protection that the limitation period in s 82(2) may have given it against a cause of action incompletely alleged against it. The pleading of the causes of action based on each of the six representations in issue here, as currently on the record of the Court, will result in the action failing because of the absence of any allegation of the material fact of ASS’s reliance.
63 I am of opinion that permitting an amendment which would take away from a party a substantive defence granted by legislation, in circumstances where there is no direct procedural rule supporting the grant of an amendment, is capable of causing injustice within the concepts discussed in JL Holdings 189 CLR 146 and the cases to which that decision refers.
64 However, ASS has relied on the provisions of O 13 r 2. That provides:
‘2 General
(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5) or (6) or paragraph (7) (a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.
(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) An amendment to alter the capacity in which a party sues may be made if the new capacity is one which that party had at the date of the commencement of the proceeding or has since acquired.
(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9) Paragraph (7) (b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.’
65 As ASS pointed out, there are departures in that rule from similar, but differently worded, rules in other courts. But it has relied on a construction of O 13 r 2(1) based on what Sachs LJ said in Brickfield Properties Ltd v Newton [1971] 1 WLR 862 esp at 874-875; [1971] 3 All ER 328 at 337-338. The approach which ASS urged in accordance with the approach of Sachs LJ in Brickfield [1971] 1 WLR 862; [1971] 3 All ER 328 is that r 2(1) creates a plenary power to amend. However, Edmund-Davies and Cross LJJ expressed considerable doubts about Sachs LJ’s approach to the English rule, which was cast in somewhat similar terms to O 13 r 2(1). ASS said that the power ought not be read down by reference to the commencing words of the rule, ‘Subject to the following provisions of this rule’.
66 I am of opinion that the commencing words of r 2(1) which I have just quoted demonstrate that the power of the Court in r 2(1), in the ordinary and natural meaning of the rule, must be read as being constrained by matters referred to in the rest of O 13 r 2. These words make O 13 r 2 operate differently to rules such as those considered in cases like McGee v Yeomans [1977] 1 NSWLR 273 at 279G where Glass JA observed that the general power of amendment under the New South Wales rules (Supreme Court Rules 1970 (NSW) Pt 20 r 1(1)) was not made subject to the other parts of the same rule, and that another part of that rule (SCR Pt 20 r 4(7)) expressly provided that those parts did not limit the general power to allow amendments under SCR Pt 20 r 1(1) (cf: Charles Church Developments Ltd v Stent Foundations Ltd [2007] 1 WLR 1203).
67 That might not be the end of the argument because ASS also pointed to O 13 r 2(2). There is certainly also a plenary character to the grant of power in that rule. But it falls to be considered here, having regard to the question whether the interests of justice operate to allow the filling of a gap which would have the consequence of overcoming an expired limitation period. In that respect, the qualification in the commencing words of O 13 r 2(1) and other parts of the rule in O 13 r 2 are relevant. Order 13 r 2 subrr (3) to (7) deal expressly with applications to the Court for leave to make amendments:
· to correct mistakes in the name or identity of the party;
· to substitute one party for another where such a mistake needs correction;
· to alter the capacity in which a party is said to be suing; or
· to add a new claim for relief or foundation in law for a claim for relief provided that it arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for the amendment.
68 Each of those subrules and the framing of subr (3) in itself evince an intention to allow the correction of mistakes or the addition of a legal formulation of a claim for relief, but not to add previously omitted material facts necessary to complete the pleading of an existing cause of action. And subr (9) expressly provides that an amendment would not be permitted which would have an effect inconsistent with a statute of limitation in matters arising under subrr (7)(b) and (8).
69 Thus, but for the general words of subr (2), the apparent intention of the balance of O 13 r 2 appears to be clear: it is that the supplementation of an existing pleading to add a material fact necessary to constitute what is not, at that time, a cause of action, cannot be made outside a limitation period. No doubt subr (2) could be read broadly to permit the making of the amendment both before (as I consider it does operate) and after the expiry of a period of limitation. And O 1 r 8 also gives power to dispense with the rules to the extent that they prohibit that course because, as I have said, the rule-making power is broad enough under s 59(2B) to permit that to be done.
70 I am of opinion that in the circumstances of the present case, there being no contrary authority to which I have been referred, I should construe subr (2) as allowing only amendments to enable the real questions already raised in another form to be determined. In a case where no limitation period has been exceeded the Court can allow any amendment and none of the succeeding provisions of O 13 r 2 after subr (1) apply to limit the power or the discretion. But where one party has the benefit of an absolute defence, even if it has not pleaded it, or has the right to say that, on the pleadings, the applicant or plaintiff cannot prove a cause of action, I am of opinion that the interests of justice should generally be seen as following the policy decision of the legislature to impose a limitation period within which an action may be brought.
71 I can infer some oversight or mistake on ASS’s part in this respect and, but for the existence of the limitation period, I would consider that to be enough to enable the amendment to be made. However, I am of opinion that in the interests of justice the application should be refused. To grant the application would permit ASS to introduce a new cause of action in lieu of the current, incompletely pleaded formulation, which ASS argued cannot found a claim for relief.
72 For these reasons, I refuse the application to add the paragraphs pleading reliance on the six representations.
CONCLUSION
73 The application of ASS to amend its pleadings should be refused with costs.
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I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 27 June 20007
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Counsel for the Applicant: |
GO Blake SC and EK Glover |
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Solicitor for the Applicant: |
Sydun & Co |
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Counsel for the Respondent: |
RG Forster SC and AA Henskens |
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Solicitor for the Respondent: |
JK O’Sullivan |
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Date of Hearing: |
28, 29, 30 May 2007 |
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Date of Judgment: |
30 May 2007 |
