Altendorf Australia P/L v Parkanson P/L

[1994] FCA 510

S10 9Lt

JUDGMENT NO. ,.m& .----1

LIWITED Applicant

And:

Reepondent

The prement proceedings were comenced by application and statement of claim filed on 27 August 1991 and are fixed for hearing for four days commencing on Monday next, 4 May. These facts alone will be enough to indicate that the case has taken a very long time to come to hearing and depending significantly, as it does, upon the recollections of oral conversations canducted between representatives of the various parties, the possibility of a hearing which will adequately determine the truth is difficult, perhaps remote.

being presented is significantly more expansive than it was under the original statement of claim upon the basis of which the case

This is the background against which the applicant presents to the Court today and presented to the respondents a few days ago an amended application and statement of claim. Senior counsel for the applicant admits frankly that the pleadings have been completely recast and that in form and in substance the case

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was fixed for hearing. It will be one indication of the change if I note that the application when originally filed was a one page document which claimed damages in the sum of a little under $175,000 plus interest and costs, whereas the amended application now occupies virtually three full pages and claims damages of something just under $700,000, together with other orders and declarations and other relief.

In further indication of the nature of the change of the case, the original statement of claim alleged one agreement entered into in November 1990 as forming the basis of relief that should be granted under the Trade Practices Act as well as other legal bases. The amended statement of claim now alleges two separate agreements, one in June and one in September 1990 in addition to the third one in November 1990. There are also mattera contained in the amended statement of claim which had not the slightest counterpart in the original document filed.

Ordinarily, that might be enough to suggest that an applicant would have difficulty in being permitted to file an amended

always taken the view that where either the defending or

statement of claim so close to the hearing, but the courts have

responding party is not prejudiced by the late amendment or where such prejudice as is caused can be compensated by countervailing orders of the court including orders for costs, then the amendment will normally be granted if it will have the effect of finally resolving the dispute between the parties.

In this particular case the applicant seeks both the authority of the Court to file the amended application and statement of claim and the retention of the hearing date conrmencing next Monday. The respondents object to the filing of the amended pleadings but say that if leave is granted to file them, there should be an adjournment of the hearing and an order for the costs thrown away.

I proceed upon the basis that the applicant should have leave to file its amended pleadings. So much, I think, was in substance accepted by the respondents and I do not think there is very much that can be said against the concept that the applicant should be able to present its case as it sees fit, even though the late filing of the pleading is reprehensible in the circumstances and no doubt should and could have been avoided.

This case causes a considerable degree of dilennna. The matter has been before the Court before on 7 May 1992 when, following upon a hearing on 26 November 1991, I gave judgment on an application by the applicant for summary judgment on part of its

that it is the applicant who is now saying that, not only was his statement of claim. The application was refused and it is ironic

case on the old statement of claim not adequate but he needs substantial amendment to put it into correct state for trial. Because of that judgment it is not necessary for m e to now outline the facts upon which the case is to be contested.

The argument presented by the applicant in favour of the trial being allowed to continue on Monday is that the case, although significantly differently pleaded, is in fact the same case in substance as that which was always to be presented. All that has really happened, the applicant says, is that the case has been re-cast no that the fundamental relief sought in the original claim is now being sought by a series of different routes than was to be the case previously. The applicant also points out that an important witness has come at its request from Switzerland for the hearing and is at present here, although it is agreed that to the extent to which his journey here might prove to be wasted it is the fault of the applicant itself and not of anyone else. Nevertheless the applicant's position is that if it has to bear an adjournment and costs, it nonetheless wishes to proceed upon the amended application and it will take its chances in relation to countervailing balances to deal with any prejudice on the part of the respondents.

I would add to that submission another factor relevant both to the case and the public interest. The Court has set aside four

days for the hearing. Other litigants pressing for their cases to come on are necessarily displaced by such a fact yet it is too

late now to insert, in the four days, other cases in waiting. The Court will therefore be very hesitant indeed to vacate a hearing date in such circumstancee. More importantly, the effect of an adjournment on this case will mean in substance that the case will not be able to be heard for at least another year in view of the lack of resources in the Court to deal with its caeeload.

AB the evidence in the matter substantially involves differences

of recollection of conversations, all of which took place in or before 1990, the prospect of witneaaes giving truthful evidence 5 years after the event is exponentially greater than their chances of giving it four years after the event, in themselves next to negligible. Of course it is true that witnesses' recollections are energised and jolted by reference to documents and other contemporaneous material but it is undoubtedly common experience that people who are trying to recollect conversations of many years ago can hardly give truthful evidence when they swear that the words they are about to say are the words that were actually said at the time.

The argument against the hearing proceeding is that the rempondente need time to reflect upon the allegations as now framed. Their witnesses need to consult relevant documentation

to try to recollect whether the three agreements now pleaded --

by the applicant or in some other form. The respondents' lawyers and it is actually two new agreements -- were in fact as alleged

need also to consider the legal consequences brought about by the changes in the pleadings. The respondents eay that it is not feasible that this could be done in what is effectively one working day before the hearing, especially as apparently two of the witneeeee live in Melbourne and the hearing is to take place in Sydney.

This type of clash in matters to do with litigation always raises difficult matters for decision. The applicant being at fault in relevant terms for the late change in the nature of the case, this Court must be careful to ensure that the respondents are not irreparably prejudiced in the presentation of their defence by being forced to fight a new case without time to prepare adequately. On the other hand, delays in cases of this kind are inimLca1 to their successful resolution and if the applicant is in fact presenting not a new case but a new framework for the old case, there seems no legitimate reason why the respondents would in fact suffer any great prejudice by the continuation of the hearing.

In the proceedings today I have not had the opportunity, as I have not been asked, to read the evidence filed for the trial. This is a case in which the parties have, by order of the Court in the course of its preparation, presented their cases by affidavits. That means that the pleadings themselves are less important than might otherwise be the case because the parties

know each other's cases in fact and know the evidence to be led	in support of them. Counsel on both sides have conceded, as in	fact the amended statement of claim would seem to me to reveal,
that it will be the same witnesses who will be giving the evidence on the amended pleadings as would have been the case on the original pleading. Whilst I do not doubt for a moment that the amended statement of claim will require additional work by the respondents' advisers in extracting the recollections of their clients and witnesses about events that are being pleaded as bases for relief for the first time, it seems to me that what the amended pleadings effectively do is seek to draw different legal implications from the same facts. Those last six words, "different legal implications from the same facts", were words used in fact by counsel for the respondents in his most effective argument today and I think they properly summarise what is going to happen when this case comes to a hearing on the amended pleadings. From reading the new and old pleadings carefully, from reading the summary of the case that arises from the previous judgment I have given in the matter, from reading the defence and the other documents to which my attention was drawn today, it seems to me that what the applicant is now doing is presenting fundamentally the same factual material but seeking to obtain relief on at least two different legal bases than was originally intended. The subject matter is still the same. The dispute is still in the same parameters, and it seems to me that the applicant has merely recast its case so as to make it more likely to succeed, or provide it with more bases upon which it might succeed legally, rather than by changing any part of its substance.	Whilst this will undoubtedly lengthen addresses and may even	lengthen the evidence somewhat over what was originally intended,

and may in fact mean four days set aside for the hearing is insufficient, it seems to me that in substance nothing that the applicant now alleges would catch the respondents by significant surprise. To the extent to which matters now alleged in this amended statement of claim are not contained in or supported by evidence already filed, the applicant will simply be unable to prove its case unless the trial judge can be persuaded that it should be allowed to present further evidence.

If that situation arises, then no doubt the trial judge will consider carefully the consequences to the respondent, including any prejudice that will thereby be caused, and may be persuaded then to adjourn the hearing -- at the cost of the applicant --

to enable the respondents to meet the matter of surprise. But as I sit here today, on the basis of the material presented, there cleearcl to nm little likelihood that the respondents will be caught by surprise by new facts and matters which it has not previously been able to address. All of them have presumably been addressed in the course of the preparation of this case over such a long period of time.

I should also say that there are elements of the amended statement of claim that strike me as being either irrelevant or unlikely to be successful. That is another factor which militates on my mind in relation to the application for an adjournment. If it should turn out to be the case, as I think it may very well be, that at least one of the two new agreements

pleaded will be found to have little or nothing to do with any entitlement to relief of the applicant, that will even mean more that the respondents will have suffered little from the amendment.

No one has alleged in the course of argument today that the breadth of relief sought by the applicants is itself an embarrassment. The argument has revolved around the content of the amended statement of claim. Similarly nothing much arises from the amended application, where once again error has been made on the side of comprehensiveness rather than facing the unlikelihood that some of the relief at least would be granted, or ie necessary to do justice between the parties. The new relief sought seems to me in many instances genuine alternatives, many of which are unlikely to find favour at the trial.

In these circumstances the adjournment should be refused. However, I should not foreclose the possibility that the trial judge might consider it appropriate, after the opening of the case by senior counsel for the applicant or the presentation to him of some evidence so as to enable him to obtain a fuller appreciation of the nature of the case, to entertain again an application by the respondents for an adjournment. Hence my ruling today ought not to be taken as any suggestion that the trial, once commenced, must go to its complete conclusion without

delay and without stop. In the event that the respondents are able to point to a specific prejudice, or that the applicant's

specific case and evidence have caught them by true surprise and

I have embarrassed their presentation of their own case, they should be free to renew their application, and the trial judge should be unimpeded in gzanting an adjournment. All I find now is that no ground has been made out that the amended statement of claim has so changed the case in real substance that the

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respondents can honourably suggest that they are caught so much by surprise that the only justice possible is an adjournment of the hearing, meaning its postponement for a very long period.

For those reasons I will give leave to file the amended statement	1
of cldim and amended application, which should be filed in the registry before 12 noon tomorrow, and refuse the application for an adjournment of the hearing.

RgCORDED I NOT TRANSCRIBED

In view of the fact that the respondents have had the proposed amended pleadings for a few days, I think the amended defence should be able to be filed by 4 pm tomorrow. If in fact that cannot be achieved for genuine reasons, then it will be satisfactory if an amended defence is handed to the trial judge at the commencement of the hearing on Monday.

RECORDED : NOT TRANSCRIBED

The costs of this application for leave to file amended pleadings

will be the respondentsf costs of the hearing.

.

I mrtffy that this and the Y\\(h4.

-ceding pages are a true copy of the

Reasons for

Justice Einfeld