In a wide ranging and detailed judgment in Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors Hollingworth J considered Anshun principles and abuse of process in the context of an application to amend.

FACTS

The facts are unusual.  The plaintiff, Equuscorp, commenced proceedings against hundreds of defendants who were investors in forestry schemes which collapsed.  Equuscorp was the lessor of properties upon which the forests were located and the defendants were lessees.  Equuscorp sued each defendant individually however it was agreed through case management that there would be a trial against two defendants.  They were not test cases, but clearly their outcome would have an impact on the others.  At trial Equuscorp lost with the court finding that the leases were void for uncertainty and were unenforceable because they contravened the NSW Local Government Act (the land was located in NSW).  An appeal to the Court of Appeal failed.

Later Equuscorp’s solicitors informed a group of the defendants (known as the Mills Oakley Defendants) that they would be amending their statements of claim against the remaining defendants to plead:

1. the agreements in question were not leases but rather licences;
2. a claim of unjust enrichment.

The Mills Oakley Defendants contended that the amendment was an abuse of process, the outcome of the previous trial constituted an Anshun estoppel, the proposed claim was unarguable and they would suffer prejudice not compensible by an order for costs [13].  Daley AsJ dismissed the application to amend.

ANALYSIS

Amendment generally

Aon Risk Services Australia Limited v ANU now dominates decision making on amendment applications.  Hollingworth J considered it in detail providing a very useful synopsis of the guiding principles.  She recounted, at [19] the relevant factors in exercising the discretion to permit amendment are:

(a) The nature and importance of the amendment to the party applying;

(b) Whether the amendment raises a clearly arguable claim or defence;

(c) The reason or explanation for the amendment;

(d) Any prejudice to the other party, including non-compensable inconvenience and stress on individuals (personal litigants being more likely to feel the strain than business corporations or commercial persons); and

(e) Case management considerations, including delay, prejudice to other litigants, waste of public resources or loss of public confidence in the legal system – for example, through the late vacation of a trial date.

Anshun principles

Hollingworth summarised the Anshun principles thus (at [23]):

An Anshun estoppel may arise where a matter sought to be raised by way of claim or defence in a later proceeding is so closely connected with the subject matter of an earlier proceeding, that it was to be expected that it would have been relied upon in that earlier proceeding. No such estoppel arises unless it appears that the matter relied upon in the later proceeding was “so relevant to the subject matter of the first action that it would have been unreasonable not to rely upon it.”

(my emphasis)

The test is not whether it would have been reasonable to take a different course but rather it was unreasonable to take the course that was in fact taken (see [26]).  An Anshun estoppel arises even if the parties to the second proceeding differ to the first (see [27]).

Abuse of process

Hollingworth highlighted the High Court’s position on abuse claims in Jeffrey & Katauskas v SST Consulting stating, at [29]:

(a) Courts have a broad inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people;”

(b) The categories of abuse of process are not closed;

(c) But that does not mean that abuse of process is “a term at large and without meaning.”

French CJ in Aon noted that abuse of process principles may apply to prevent religation of previously determined matters.

Holingworth suggested, at [32], that abuse of process principles are broader than the Anshun estoppel principles.  Because Equuscorp was not trying to relitigate a lease claim against the Mills Oakley Defendants it was not an abuse of process.  The proposed amendments characterise the arrangement as being a licence rather than the unenforceable lease (so held by the courts) but if not a licence then a commercial agreement.  Alternatively Equuscorp proposed pleadings alleges a restitutionary claim.

Hollingworth J found the claims at least arguable then considered the other Aon factors. It was clear from the history of the proceedings that neither side had committed to a binding test case.  The case run earlier would not have prevented the defendants from raising alternate defences nor banned Equuscorp from recasting its claim.  The reasons given for not pleading the proposed amendments earlier were not particularly persuasive however Equuscorp was assisted by a relevant High Court decision on restitution handed down after the initial trial but before the Court of Appeal hearing.   As to general case management considerations this issue was not a significant issue given the defendants cases had remained dormant for years.  There was no interlocutory processes on foot nor any trial date that would be vacated.  Hollingworth J found there would be further delay which would frustrate the defendants however there was no prejudice which would militate against granting an amendment.  There would be some further costs impost on the defendants however not directly related to the amendment and while the restitutionary claim would require discovery and further evidence the defendants did not lead evidence suggesting how this would prejudice them either through lack of evidence or lost witnesses.

CONCLUSION

Because the proposed amendments are new and substantial Hollingworth found they were at least arguable.  To the extent that the additional claims cause additional costs to the defendants those matters could be dealt with by a costs order.

ISSUE

The factors set out in Aon Services are the prism through which a court will view an application to amend.  It is important to address each factor in detail.   This decision is a useful reference when confronted with an Anshun estoppel/abuse of process issue on an application to amend.