Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd

Dense Medium Separation Powders Pty Ltd (the appellant) appealed an interlocutory order made by a judge of the Supreme Court of New South Wales. The appeal concerned procedural matters arising from litigation between the appellant and Gondwana Chemicals Pty Ltd (the respondent). The appeal was heard by Campbell, Young and Whealy JJA of the Court of Appeal.

The Court of Appeal was required to determine whether the judge below had erred in failing to address a specific aspect of the appellant's submissions, whether the appellant should be permitted to amend its defence to raise entirely new arguments, and whether it was just and convenient to join additional parties to the proceedings. The Court also considered an application for security for costs of the appeal, given the appellant's foreign status.

The Court of Appeal indicated that appeals from interlocutory orders are generally discouraged, and that recourse to the judge who made the order is usually the appropriate first step when a party believes an aspect of their submissions was not dealt with. Regarding the amendment of pleadings, the Court held that while a defendant may amend their defence to plead specifically, they cannot use an amendment to raise an entirely new case. The joinder of additional parties was to be assessed under UCPR r 6.24, requiring a balancing of all relevant factors including additional costs, delay, and the relationship between the matters affecting different defendants. In relation to security for costs, the Court noted that while ordinarily limited to the probable expense of enforcing a costs order in a foreign court, exceptional circumstances, such as specific South African legislation, could warrant a different approach.

The application for leave to appeal was refused, with costs ordered in favour of the respondent.