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 object to those particulars as framed. I think it is sufficient to refer to that matter in general terms at the moment because counsel for the respondents has not formulated a precise request for better particulars, although he has raised the matter, and counsel for the applicant has made it clear that he is prepared to reformulate the particulars to cater for the one precise complaint that has so far been made.
Accordingly, I allow the amendment and direct that a further amended statement of claim embodying the amendments be filed and served by noon tomorrow.

I certify that this and the preceding two (2) pages

are a true copy of the Reasons for Judgment herein

of his Honour Mr Justice Burchett.

Associate: 

Date: 17 June 1993

Counsel for the Applicant:	Mr D.B. McGovern
Solicitors for the Applicant:	Messrs Champion & Partners
Counsel for the Respondents:	Mr L.G. Foster
Solicitors for the Respondents:	Messrs Baker & McKenzie
Date of hearing:	9 June 1993