Byers, P.C. v Dorotea Pty Ltd

[1986] FCA 469

C A T C H W O R D S

PRACTICE - amendment - Supreme Court action - later suit in Federal

Court - former discontinued by consent - no time point then

taken - attempt to plead limitation at trial after conslderable

delay - exercise of discretion.

Trade Practices Act, 1974 s . 8 2 ( 2 )

Pamela Carlotta Bvers and

Huqh Kirkpatrick Byers & Ors.

v. Dorotea Ptv. Ltd.

QLD G151 of 1984

PINCUS J.

BRISBANE

8 October 1986

IN THE FEDERAL COURT OF AUSTRALIA )

PUEENSLAND DISTRICT REGISTRY ) QLD G151 of 1984

DIVISION GENERAL )

BETWEEN: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS

Flrst Applicants

AND: CHERYL ANN BYERS

Second Appllcant

AND: BYERS HOLDINGS PTY. LTD.

Thlrd Applicant

AND: DOROTEA PTY. LTD.

Respondent

AND: DOROTEA PTY. LTD.

Cross-Claimant

AND: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS

Flrst Cross-Respondent

AND: CHERYL ANN BYERS

Second Cross-Respondent

AND: BYERS HOLDINGS PTY. LTD.

Th1rd Cross-Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	8 October 1986
WHERE MADE:	Brisbane

THE COURT ORDERS THAT:

The application for leave to amend the defence and counter-claim be dismissed.

NOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G151 of 1984
GENERAL DIVISION	)

BETWEEN: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICX BYERS

Flrst Appllcants

AND: CHERYL ANN BYERS

Second Appllcant

AND: BYERS HOLDINGS PTY. LTD.

Thlrd Appllcant

AND: DOROTEA PTY. LTD.

Respondent

AND: DOROTEA PTY. LTD.

Cross-Clalmant

AND: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS

Flrst Cross-Respondent

AND: CHERYL ANN BYERS

Second Cross-Respondent

AND: BYERS HOLDINGS PTY. LTD.

Third Cross-Respondent

PINCUS J. B OCTOBER 1986

M TEMPORE REASONS FOR JUKMENT

This is an application to amend a defence and

counter-claim in proceedings in respect of purchases of home

units. The first litigation relating to the matters took place in

the Supreme Court. Each side instituted proceedngs in that court

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early in 1983, and a number of steps were taken in those

proceedings, although the cases did not, apparently, reach the

stage of being set down for hearing.

On 17 December 1984 the present applicants lnstltuted

proceedings here, seeking rellef in respect of the three contracts

in questlon In the Supreme Court cases, which contracts were

entered into in August 1981. They asked that the money they pald

under the contracts be returned. A statement of clalm was

delivered on the same day, which alleged that the contracts I have

mentioned were Induced by representations whlch were false and

fraudulent. The way in which the jurisdicton of thls court was

Invoked was, of course, by an allegation In the terms of 5.52 of

the Trade Practices Act.

The tactic, if I can use that expresslon, of instltutlng

a suit in this Court while similar proceedings in the Supreme

Court are pending is sometimes availed of simply to induce delay.

Presumably that was not so here, because, by consent of the

parties In a hearing before Spender J. on 11 February 1985, it was

agreed that the Supreme Court proceedlngs would be discontinued

and the proceedings here would	go ahead, and	a consent order was
made to give effect to that.

On that day Spender J. also gave directions, including that a defence be filed by 25 February 1985. That was done, and

it was accompanied by a cross-claim which presumably raised

matters similar to those which ad been alleged by the respondent

in its Supreme Court proceedings. The application now seeks to

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amend that defence, which was, of course, filed some considerable time ago, by adding a plea that the cause of action accrued more

than three years prlor to the date of commencement of the

proceedings, and it	is sought	to rely upon s.82(2)	of the Trade
Practices Act.

After the defence was filed, there were further

proceedings in the Supreme Court, in March 1985, to give effect to

the agreement of the parties, and that court gave leave to

discontinue the Supreme Court proceedings. Mr. Harrison P.C., who

appeared with Mr. Sheahan for the applicants, does not assert that

the applicants would necessarily have taken a different course had

the time point been raised by the respondent in Its initlal

defence. It may be difficult to determine precisely what would

have happened in that event, but it seems to me improbable that

the applicants would not have sought to avoid the result which has

now ensued: that they are faced	with an attempt to raise the time
point against them.

Reading the transcript of the proceedings before Spender

J., I have noted that Mr. Frew, who then appeared for the

applicants, said, amongst other things, referring to	a slmilar
case which his Honour had heard:

"You made an order, I understand, and I was not in

the Vancleve matter, but Mr. Griffin of counsel was

in the matter, and he has also appeared for the

applicants in this matter, and the order was, I

understand, that the applicant was to discontinue

the Supreme Court proceedings and comply with any

order for costs made in that court, and that the

Federal Court proceedings then proceed. The

respondent has consented to that."

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Mr. Sheehy, who appeared for the respondent before Spender J.,

replied:

"This is a consent order based, as I understand It,

on the same understandlng, that these proceedlngs

in some respect are similar to the other

proceedings, so that rather than seeking orders

from yourself as	such, the parties have by consent
agreed to these.

Mr. Lennon Q.C., who appears wlth Mr. Newton for the

respondent, says, no doubt accurately, that the point was not then

thought of. The same must have been assumed to be so when the

defence was filed on 25 February. Thereafter, there were further

pleadings; dlscovery took place, and supplemental dlscovery;

solicitors were changed in February 1986, and there was an

application made In May 1986 with respect to the pleadings, which

was dealt wlth by Spender J.

The matter was, some little tune ago, set down for

today, 8 October, which is a date approximately 20 months after

the proceedlngs in which Spender J. made the consent order

discussed above. Counsel have referred me to a number of

authorities relevant to that question of whether an amendment

should be allowed in these circumstances. The case which Mr.

Hartison Q.C. relies upon strongly is the decision of Pickford J.

In Aronson v. Liverpool Corporation C19133 XXIX T.L.R. 325 .

That, without setting out he facts In detail,

demonstrates an attitude against allowing such amendments, even when not made at the last moment, which is stricter, in my view,

than that commonly taken at the present day. It may be that, in

.

5.

general, amendments are more freely allowed at present than they

used be. I have been told by both counsel that the matter is m my discretion, and I agree that It is, but I have had some

difficulty in determining how to exercise that discretion.

I must say that the too ready allowance of amendments at

the very beginning of a trlal can have some 111 effects other than

with respect to costs. It 1 s not perhaps a matter which need

concern the parties to the case, but it seems to me plain from

this experlence and many others that I f , as a matter of routlne,

important amendments are allowed late, it reduces the pressure

upon the lawyers, if I may say so with respect, to ensure that the

issues which they want to raise are raised in due time.

Here it is unclear, In my view, whether the appllcants

will suffer any prejudice other than one curable by an order for

costs if the amendment is allowed. For one thing, it seems

unclear whether the plea would be	a good one. For another, no one
could say at this stage whether	a timely raising of the defence

would have produced the result that the agreement, to stop the

proceedings which each party had instituted in the Supreme Court

and litigate here instead, would have broken down.

Certainly, it seems likely that, had the time point been

raised when the defence was filed, the applicants would, of

necessity, have had to seriously consider going back to Spender J. to be released from their undertaking, because at least the spirit of the matter seems to have been that the proceedings here would

be continued. The suggestion which is made by senior counsel for

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the respondent is that the appropriate orders for costs can cover

any loss the applicants may have sustained by the proceedings

having been continued for the best part of two years through

various interlocutory phases, and presumably it is possible that

this Court could also deal with a rather more awkward problem, and

that is the costs which the applicants were ordered to pay in the Supreme Court when they discontinued in pursuance of the consent order, those costs undoubtedly being falrly substantial.

The suggestion made by counsel for the respondent that

the whole matter can be corrected if the applicants start up again

in the Supreme Court is not one I find very attractive, but I can

see that the respondent reaches a favourable tactical posltlon if,

particularly at the last moment, it 1s able to confront the

applicants with the dilemma of determlning whether to go ahead

with this case or try to start again in the Supreme Court.

The matter seems to me to be quite finely balanced, and

I have no confidence as to what 1 s the appropriate way in which to

exercise my discretion. I must say, however, that if there are

cases in which it is appropriate to refuse a late amendment

raising the time point, this would seem to be one. The statement of claim plainly sets out - and, of course, it must already have been known to the parties - that the contracts were made in 1981

at a time more than three years before the institution of these

proceedings, although admittedly other matters which could

conceivably give rise to a cause of action are pleaded as having taken place within the three years. Mr. Lennon Q.C. very fairly

does not contend that the attempt to raise the three-year limit is

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inspired by the recent decision of the High Court In Sent v. Jet

Corporation, decided on 16 June 1986 and reported in 66 A.L.R. 7 3 ,

although that case improves, perhaps, his prospects of resistlng

the claim insofar as it is for relief under 5.87.

I think that the Court should refuse the late amendment,

in all the circumstances. The attitudes of the partles, as

explained to me, and my overall lmpressions of the matter, from

the very candid submlssions which have been made, are such that

the allowance of the amendment at this stage would not, I thlnk,

be just, and I refuse the appllcatlon.