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Adelaide Steamship Co Ltd v Spalvins

Adelaide Steamship Co Ltd v Spalvins

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FEDERAL COURT OF AUSTRALIA
Adelaide Steamship Co Ltd v Spalvins [1999] FCA 781
PRACTICE AND PROCEDURE – application for leave to file and serve a further amended statement of claim – allegations of delay prejudice and oppression – whether applicant made an election or waived its rights to make the application – conduct of respondents contributing to delay
Cairns’ Australian Civil Procedure 3^rd Ed
Bullen and Leake and Jacob’s Precedents of Pleadings 12 Ed
Odgers’ Principles of Pleading and Practice, 21 Ed
Australian Securities Commission Act (1989) (Cth) s 50
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 applied
The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 followed
Cropper v Smith (1884) 26 Ch D 700 followed
Clough and Rogers v Frog (1974) 4 ALR 615 followed
The Adelaide Steamship Company Limited v Spalvins (1997) 24 ACSR 536 noted
The Adelaide Steamship Company Limited v Spalvins (1998) 152 ALR 418 noted
Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 referred to
Hall v Eve (1876) 4 ChD 341 at 348 followed
The Duke Group Ltd (In liquidation) v Arthur Young (unreported: judgment delivered 26 June 1991) applied
Interior Projects v Players Ltd (unreported: judgment delivered 19 June 1997) applied
Walton v Gardiner [1993] 177 CLR 378 distinguished
C.F. Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 referred to
Zucker v Straightlace Pty Ltd (1986) 11 NSWLR 87 referred to
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1994-1995) 182 CLR 26 applied
Tropical Traders Ltd v Goonan (1964) 111 CLR 41 applied
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 distinguished
Elders Trustee and Executor Co Ltd v Commonwealth Homes & Investment Co Ltd (1942) 65 CLR 603 applied
Sargent v ASL Developments Limited (1974) 131 CLR 634 applied
Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712-713 followed
Rubenstein v Truth and Sportsman Ltd [1960] VR 473 followed
H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 followed
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 followed
THE ADELAIDE STEAMSHIP COMPANY LIMITED v JANIS GUNARS SPALVINS & ORS
NO SG 3036 OF 1994
O’LOUGHLIN J
11 June 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 3036 OF 1994

BETWEEN:

THE ADELAIDE STEAMSHIP COMPANY LIMITED
Applicant

AND:

JANIS GUNARS SPALVINS
First Respondent

MICHAEL JAMES KENT
Second Respondent

NEIL LESLIE BRANFORD
Third Respondent

KENNETH WILLIAM RUSSELL
Fourth Respondent

MICHAEL STEVENSON GREGG
Fifth Respondent

DELOITTE HASKINS AND SELLS
Sixth Respondent

DELOITTE ROSS TOHMATSU
Seventh Respondent

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

11 JUNE 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file and serve, within a period of three weeks of this date, a further amended statement of claim in terms, subject always to the provisions of par 2 hereof, of the proposed further amended statement of claim that was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 781
Decision Date: 11 JUNE 1999

CaseChat Overview and Summary

In the matter of Adelaide Steamship Co Ltd v Spalvins, the dispute arose from allegations of breach of directors' duties and negligence by the respondents. The case was heard in the Federal Court of Australia, where the applicant, Adelaide Steamship Co Ltd, sought permission to file a further amended statement of claim. The respondents contested the application, raising concerns about the introduction of new causes of action and the timing of the proposed amendments.

The court was tasked with determining whether the applicant should be granted leave to file and serve a further amended statement of claim, and if so, under what conditions. This involved assessing the nature of the proposed amendments and their potential impact on the proceedings. The court also needed to address the issue of costs associated with the application, including whether the respondents' costs should be set off against the applicant's costs.

The Federal Court granted the applicant leave to file and serve a further amended statement of claim, subject to specific conditions. The court allowed the applicant to make amendments to the proposed further amended statement of claim, including deleting certain paragraphs and inserting new ones. The amendments were to be made within three weeks of the date of the order, and any consequential changes were to be included. The court also addressed the issue of costs, determining that the applicant would bear the costs of the respondents related to the application for leave, while the respondents would bear the applicant's costs resulting from the opposition. The matter of any costs thrown away by the respondents due to the applicant's successful application was referred to the trial judge.

The court's orders included detailed provisions regarding the timing and content of the further amended statement of claim, as well as the apportionment and taxation of costs between the parties. The decision provided clarity on the procedural aspects of amending pleadings in complex litigation and the implications for the parties involved.

Orders

Orders of the court

1. Leave be granted to the applicant to file and serve, within a period of three weeks of this date, a further amended statement of claim in terms, subject always to the provisions of par 2 hereof, of the proposed further amended statement of claim that was lodged in Court by the applicant on 22 January 1999.

2. The applicant be at liberty to amend the proposed further amended statement of claim prior to its filing in the manner following that is to say:

2.1 by deleting par 172D and by inserting in lieu thereof a new paragraph in terms consistent with these reasons

2.2 by making all and any amendments consequential upon the amendment to par 172D.

2.3 by correcting such of the errors and deficiencies (if any) as counsel may advise, being limited to those errors and deficiencies that have been identified by the sixth and seventh respondents in their written submissions to the Court.

3. To the extent that any of the amendments raise a new cause of action within the meaning of Weldon v Neale (1887) 19 QBD 394 and do not arise out of the same facts or substantially the same facts as those already pleaded within the meaning of Order 13 rule 2(7) of the Federal Court Rules, the amendments shall operate with effect from 21 February 1997 as to those amendments of which notice was given on that date and from 8 September 1998 as to those amendments of which notice was given on that date.

4. The applicant pay the costs of the respondents of and incidental to the applicant obtaining the leave of the Court to file and serve a further amended statement of claim other than the costs that were incurred as a result of the respondents opposing the application for such leave.

5. The respondents pay, jointly and severally, the costs of the applicant occasioned as a result of the respondents opposing the application for such leave.

6. Both sets of costs are to be taxed in default of agreement and set-off is to apply.

7. Subject as aforesaid, the question of the respondents’ costs thrown away as a consequence of the applicant seeking and obtaining the leave of the Court to file and serve a further amended statement of claim are referred to the trial judge.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 3036 OF 1994

BETWEEN:	THE ADELAIDE STEAMSHIP COMPANY LIMITED Applicant
AND:	JANIS GUNARS SPALVINS First Respondent MICHAEL JAMES KENT Second Respondent NEIL LESLIE BRANFORD Third Respondent KENNETH WILLIAM RUSSELL Fourth Respondent MICHAEL STEVENSON GREGG Fifth Respondent DELOITTE HASKINS AND SELLS Sixth Respondent DELOITTE ROSS TOHMATSU Seventh Respondent
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	11 JUNE 1999
WHERE MADE:	ADELAIDE