When Delay Becomes Damage: The High Court’s Warning in Aon Risk Services v ANU

Home › Case Studies › Case Law Library › Commercial & Business Cases › Civil Procedure & Evidence › Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009)

Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)

Case Summary

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) is one of the High Court’s most influential decisions on delay, litigation strategy, and the real costs that fall on clients when major changes are made late in a case.

The dispute arose after the devastating 2003 Mount Stromlo fires. ANU sued its insurers and later joined Aon as its broker. Two days into a four-week trial, ANU settled with the insurers and sought an adjournment so it could substantially amend its claim against Aon. That amendment would expand the case dramatically, introduce new legal theories, and require a full reset of the trial preparation.

The primary judge allowed it. The ACT Court of Appeal largely upheld it.
But the High Court overturned both decisions.

The Court held that ANU’s request came far too late, lacked a proper explanation, and caused unnecessary delay, cost, and prejudice:

“Whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings … the time of the court is a publicly funded resource.” (French CJ at [5])

This sentence has become the single most cited line from the case.

The Court emphasised that justice is not only about hearing every arguable point, it is also about fairness, efficiency, and preventing tactical shifts that impose cost shocks on others. The Court expressly departed from the older, more permissive approach in J L Holdings, stating that modern case management must give weight to delay, wasted preparation, and the proper use of public resources.

Why It Still Matters

The judgment exposes a systemic problem many Australian litigants still face:

Cost blowouts happen long before trial - often through late amendments and shifting strategies.

Once a case drifts, or a party reshapes its position deep into proceedings, the other side must redo work already paid for: new affidavits, expert evidence, discovery reviews, and completely reshaped submissions.

The High Court made clear that costs orders do not truly compensate the damage done. Delay itself is harm - financial, emotional, and strategic.

In any complex dispute, this pressure is felt most heavily by clients. A party may be technically entitled to seek an amendment, but the practical effect is months or years of additional legal expenditure.

This judgment shows why clients look for structures that prevent “two-path funding”: paying simultaneously for trial preparation and for last-minute settlement manoeuvring.

How to Avoid the Same Trap:
Cost Safety (One-Path Funding)

The risk illustrated in Aon v ANU aligns directly with Clean Law’s cost-safety safeguard. In traditional practice, a client can end up funding:

• the original litigation pathway, and also

• a new, late-arising strategy that forces all prior work to be re-done.

That duplication is exactly what the High Court identified as prejudicial and wasteful. Under conventional billing models, clients bear the brunt.

Clean Law’s structure is built to address this precise pattern. We separate the roles so that clients fund one pathway, not both:

Two lawyers often cost less than one - because you fund one path, not both.

Under the one-path model:

• The client-side lawyer maintains early discipline in pleadings and strategy.

• Tactical shifts, if unavoidable, are stress-tested for cost and necessity.

• The litigation lawyer focuses purely on trial preparation without duplicated or abandoned work.

This structure reduces the risk that a case will be reshaped late, triggering the very delays and cost shocks that the High Court warned against.

Because Aon v ANU shows how quickly delay and shifting strategies translate into cost pressure, many clients want to understand how structural cost alignment works in practice. Our explainer breaks down the model step-by-step.

Learn more → One-Path Funding & Cost Safety

The High Court’s message was clear:

delay is not a neutral event. It carries real cost, real stress, and real prejudice. Structural safeguards are the most reliable way to prevent these risks emerging in the first place.

Clean Law’s independence framework, Law Society-audited trust accounts, ACNC-governed financial reporting, and a no-referral-fee policy, ensures clients receive advice that is focused solely on their interests.

If your dispute involves shifting pleadings, escalating costs, or uncertainty about the best path forward, a confidential conversation can offer clarity without pressure.

Book a confidential discussion → Secure a Private Consultation

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.