Carr, P.J. v McDonalds Australia Ltd - [1993] FCA 403

403 \C\qs

JUDGMENT NO. ........ .....,.... I .......,,,,,
NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRUIA )
1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 560 of 1992
1

GENERAL DIVISION )

BETWEEN : PETER JOSEPH CARR
Applicant

AND : McDONALDS AUSTRALIA LIMITED
First Respondent
PETER DAVID RITCHIE
Second Respondent

McDONALDS PROPERTIES (AUSTRALIA) PTY
LIMITED

!	Third Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 9 June 1993
EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:
In this matter I am asked to permit an amendment of the statement of claim at an extremely late stage, after many days of hearing, and when only one further hearing day, to be amplified by written submissions, has been proposed. The matter is, however, a complex one, and some of the issues it raises lie in an area of contract law - and perhaps an area of the law of fiduciary relations - where a degree of change and development is discernible in the case law, and a difficulty

in analysis is, I think, perfectly understandable.
TO say that, of course, is not to justify the allowance of an amendment without more. A number of considerations have been canvassed in argument, but the one that seems to me in the circumstances of this case to have ultimately the greatest importance is the question of prejudice. I have asked counsel for the respondents to identify the prejudice which his clients would suffer if the amendments were allowed; and in an admirably restrained and fair presentation he has had to concede that really the prejudice extends little further than this, that he may require to recall a witness, and to amplify the evidence of another witness, and that this may cause a relatively short lengthening of the time this case is under consideration. I say relatively because the case has
already taken a considerable time, and on any view will not be
decided immediately.
In the circumstances, I have come to the conclusion that
there is a large element in the amendments of mere
reformulation of issues that were always at the heart of the

more than a limited extension of the length of the hearing. beyond that is still uncertain, but is unlikely to involve case, and that the extent to which the amendments will travel

Accordingly, I allow the amendments, but in doing so I shall ensure that the respondent has the opportunity to call any further evidence which the allowance of them may appear to make desirable, subject of course to the admissibility of that evidence. I will reserve all questions of costs arising out of the amendment so that when what is precisely involved is known I may be able to make appropriate provision for any costs that result. I also make it clear that in allowing the amendments I am not giving any seal of approval to the form in which the particulars of them have been given, and I reserve all of the rights of the respondents to…

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: [1993] FCA 403
Decision Date: 9 Jun 1993

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Burchett considered an application by Peter Joseph Carr to amend his statement of claim against McDonalds Australia Limited, Peter David Ritchie, and McDonalds Properties (Australia) Pty Limited. The dispute revolves around a complex business arrangement, including potential breaches of fiduciary duty and contractual obligations. The application to amend the statement of claim was made at a late stage, after several days of hearing, leaving only one further hearing day to be supplemented by written submissions. The primary concern in allowing such a late amendment was the potential prejudice to the respondents. Counsel for the respondents identified the primary prejudice as the necessity to recall a witness and to expand the evidence of another witness, potentially causing a slight extension in the duration of the case. Given the already considerable time the case had consumed and the likelihood that it would not be resolved immediately, Justice Burchett concluded that the amendments primarily involved reformulating issues central to the case rather than introducing entirely new matters.

Justice Burchett allowed the amendments to the statement of claim, ensuring the respondents would have the opportunity to present any additional evidence deemed necessary by the court, subject to admissibility. He also reserved questions of costs arising from the amendment to make appropriate cost provisions once the exact implications were known. The judge made it clear that his decision to allow the amendments did not signify approval of the form in which they were presented and reserved the respondents' rights to object to the particulars of the amendments. Justice Burchett directed that the amended statement of claim be filed and served by noon the following day. This decision balances the need for a fair trial with the practicalities of managing a complex case at an advanced stage.

Orders