FEDERAL COURT OF AUSTRALIA
Armit v Jeminex Limited (No 2) [2012] FCA 656
Citation: Armit v Jeminex Limited (No 2) [2012] FCA 656 Parties: MADONNA ANNE ARMIT v JEMINEX LIMITED ACN 113 973 087 File number: NSD 1744 of 2010 Judge: ROBERTSON J Date of judgment: 27 June 2012 Catchwords: PRACTICE AND PROCEDURE – amendment of pleadings – whether leave should be granted to permit substantial amendment to originating application where matter already set down for hearing – costs thrown away by the amendment – whether costs should be taxed immediately
PRACTICE AND PROCEDURE – subpoenas – application by respondent to set aside or amend subpoenas issued by applicant – whether subpoenas relevant
Legislation: Federal Court Rules 1979 O 62 r 3
Federal Court Rules 2011 r 40.13Cases cited: Bailey v Beagle Management Pty Ltd (2001) 182 ALR 264 Date of hearing: 20 June 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr JS Mendel Solicitor for the Applicant: Diamond Conway Lawyers Counsel for the Respondent: Mr F Corsaro SC Solicitor for the Respondent: Sachs Gerace Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1744 of 2010
BETWEEN: MADONNA ANNE ARMIT
ApplicantAND: JEMINEX LIMITED ACN 113 973 087
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
27 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant have leave to amend her pleading in the form of the draft annexed as KN12 to the affidavit of Mr Krishneel Nath sworn 1 June 2012, such pleading to be filed and served by 22 June 2012.
2.The applicant pay the respondent's costs thrown away by the amendment.
3.The respondent’s interlocutory application filed on 6 June 2012 be refused.
The orders made on 4 April 2012 be varied as follows.
4.The respondent request any further and better particulars of the applicant's amended originating pleading by 5 July 2012.
5.The applicant respond to the respondent's request for further and better particulars by 13 July 2012.
6.The respondent file and serve its defence to the applicant's amended originating pleading by 6 August 2012.
7.On or before 13 August 2012 the applicant give notice to the respondent and the respondent give notice to the applicant of any further documents she or it requires by way of discovery.
8.The parties complete any further discovery by 24 August 2012.
9.The applicant file and serve all lay and expert evidence upon which she proposes to rely by 28 August 2012.
10.The respondent file and serve all lay and expert evidence upon which it proposes to rely by 12 October 2012.
11.The applicant file and serve all lay and expert evidence upon which she proposes to rely in reply by 2 November 2012.
12.The matter be listed for directions at 9:30am on 7 November 2012 for the purpose of making detailed pre-trial directions.
13.The parties participate in a mediation by 13 November 2012, such mediation to be arranged by the applicant.
14.If any…
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- Case
- [2012] FCA 656
- Decision Date
CaseChat Overview and Summary
The court assessed the applications and the implications of granting leave for substantial amendment to the pleadings, considering the procedural fairness and the potential for costs being thrown away by such an amendment. The court found that Armit should be granted leave to amend her pleadings but needed to pay Jeminex's costs thrown away by the amendment. Jeminex's application to set aside or amend subpoenas was refused, and the court also ordered detailed procedural steps to manage the discovery process, the exchange of evidence, and the scheduling of a mediation. The court emphasised that lay evidence should be served on the other party but not filed, with the intention to be adduced orally at trial.
The court issued detailed orders to manage the amended pleadings, the subpoenas, and the overall procedural timeline. The orders included the requirement for Armit to pay Jeminex's costs thrown away by the amendment, the refusal of Jeminex's interlocutory application, and the setting of specific dates for further particulars, discovery, evidence exchange, and a directions hearing. Additionally, the court mandated a mediation and provided for costs management and flexibility in case of defaults in complying with the orders.
Orders
Orders of the court
1. The applicant have leave to amend her pleading in the form of the draft annexed as KN12 to the affidavit of Mr Krishneel Nath sworn 1 June 2012, such pleading to be filed and served by 22 June 2012.
2. The applicant pay the respondent's costs thrown away by the amendment.
3. The respondent’s interlocutory application filed on 6 June 2012 be refused.
The orders made on 4 April 2012 be varied as follows.
4. The respondent request any further and better particulars of the applicant's amended originating pleading by 5 July 2012.
5. The applicant respond to the respondent's request for further and better particulars by 13 July 2012.
6. The respondent file and serve its defence to the applicant's amended originating pleading by 6 August 2012.
7. On or before 13 August 2012 the applicant give notice to the respondent and the respondent give notice to the applicant of any further documents she or it requires by way of discovery.
8. The parties complete any further discovery by 24 August 2012.
9. The applicant file and serve all lay and expert evidence upon which she proposes to rely by 28 August 2012.
10. The respondent file and serve all lay and expert evidence upon which it proposes to rely by 12 October 2012.
11. The applicant file and serve all lay and expert evidence upon which she proposes to rely in reply by 2 November 2012.
12. The matter be listed for directions at 9:30am on 7 November 2012 for the purpose of making detailed pre-trial directions.
13. The parties participate in a mediation by 13 November 2012, such mediation to be arranged by the applicant.
14. If any party is in default of any order set out above, the non-defaulting party is to notify his Honour's Associate within 24 hours of the default occurring and the Court will list the matter for directions shortly thereafter.
15. Liberty to apply on 48 hours’ notice.
16. Subject to order 2, the costs of the interlocutory applications heard on 20 June 2012 be reserved.
Note: Any lay evidence which goes beyond annexing or exhibiting documents is not to be given by way of affidavit but is to be served on the other party, but not filed, as a proof of evidence of each witness sufficient to put the other side on notice of the substance of that evidence. At the trial that lay evidence is to be adduced orally.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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