Donkin, C.J. & H.R. v AGC (Advances) Ltd

[1990] FCA 639

JUDGMENT NO. .. ........ .... ...-..- 639 1 90

IN THE F E D E W COURT OF AUSTRALIA	)	QG 107 of 1989
W S L A N D DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN:  COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Applicants

AND:  AGC (ADVANCES) LTD.

Reapondent

AND :  AGC (ADVANCES) LTD.

Cross-Claimant

AND:  COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Cross-Respondents

MINUTES OF ORDER

RECEIVED

13 NOV 1990

JUDCF MAKING 0 RDER : PINCUS J. FEDERAL COURT OF

AUSTRAUA

DATE OF ORDER:	16 OCTOBER 1990	PRINCIPAL	R E Q 1 8 m
U E R E MADE:	BRISBANE

m E COURT ORDERS THAT:

1.    The further amended statement of claim filed on 12 October 1990 be allowed to stand.

7.	Answers to be delivered by 30 October 1990.

2.   The trial dates for the two weeks commencing 3 December 1990 be vacated.

3.    The matter be adjourned till Wednesday 21 November 1990 at 9.15 a.m. and 1 hour be kept for directions.

4.    The question of costs of today, and those occasioned by the amendment to the statement of claim, be reserved till the next review date.

5.    Orders 1, 2, 3, 4, 5 and 6 of the 13 September 1990 be vacated.

6.    Any request for further particulars of the statement of claim be delivered by 23 October 1990.

8.    The amended defence be filed and served on or before

13 November 1990.

.!mm:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

.IN THE FEDERAL COURT OF AUSTRALIA 1 QG 107 of 1989

SLAND DISTRICT REGISTRY 1

GENERAL DIVISION 1

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Applicants

AND: AGC (ADVANCES) LTD.

Respondent

AND: AGC (ADVANCES) LTD.

Cross-Claimant

AND: COLIN JOHN DONKIN AND HEATHER KAY DONKIN

Cross-Respondents

m: PINCUS J.

m:	BRISBANE
m:	16 OCTOBER 1990

EX TEMPORB REASONS FOR JUDGMENT

This is a Notice of Motion brought by the respondent and filed on 5 October for further discovery and vacation of the trial dates.

What happened was that on 13 September there was some discussion concerning the question of particulars (particulars of loss) and counsel for the applicants suggested, in effect, that the particulars could be put in a

given leave to either supply particulars of losses and damages	statement of claim. I made an order that the applicants be
claimed or file an amended statement of claim including such particulars on or before 11 October.
Subsequently to that, Mr. Somers, for the applicants, tells me the suit was reconsidered in consultation with another counsel, and it waa decided to seek further amendments, and in fact an amended statement of claim was

filed going entirely beyond what was contemplated by the order of 13 September. Mr Morrison Q.C., who appeared today with Mr Sheahan as counsel for the respondent, has said, in effect, that if the pleading is to be amended in this way, the case is changed significantly and it seemed to him unlikely that the matter would be ready to proceed on the due dates, and further seemed to him unlikely that it would finish in the time allotted.

The view which I take of the matter is that it is a great shame that the applicants' case has been so substantially altered, or sought to be altered at this late stage. The events happened about four years ago. The action was started a year ago, and it is only now, six weeks before the trial date, that the applicants have decided what they want to claim. In these circumstances, and with considerable regret, I accede to the applicant to amend. I will allow the further amended statement of claim filed on 12 October 1990 to stand, and I will vacate the trial dates. I do not know when

question of discovery this evening because it does not seem to	it is going to be tried. I do not propose to deal with the
be urgent.
I will adjourn the matter for further mention and hopefully you will have sorted out the problems about discovery; if you have not, I will sort them out, on Wednesday, 21 November at 9.15 and I will direct that an hour be kept from 9.15 to 10.15.
The other orders I have to make are to reserve the question of costs occasioned by the amendment. I do not want to make an order that the costs be fixed by the Registrar because it seems to me, from such experiences I have had of the effect of such orders, that they do not work. The Registrar simply has not got enough information and knowedge of the case to assess what impact a late amendment has had. The impact of a late amendment is difficult to assess, even for a person like myself who is familiar with the case, but what I want to do is to fix a sum which reflects the costs occasioned by the late amendment, and I would invite the parties to try to agree on a sum. If they cannot agree I will endeavour to fix a sum as best I can when the matter is mentioned, and either side is entitled, if they wish, to put in evidence with respect to that. That is, a late amendment sometimes makes work which is done useless or occasions further work, but it is very difficult to see what the real impact of it is.

Now the other orders which I have made with a view

to bringing the matter to trial will have to be vacated. The

orders I made on 13 September (in particular order number 1, setting the matter down for hearing) will be vacated. Order number 2 is otiose now; it will be vacated. Order number 3 be vacated; order number 4 will be vacated; order number 5 will be vacated; and order number 6 will be vacated.

Order number 7 will be let stand; that is the order for the mediation conference. As I mentioned, the costs of today, including the costs occasioned by the late amendment, will be reserved for consideration when the matter next comes before the court on the basis which I have mentioned. That is, I hope the parties can agree, but if they cannot agree, I will fix a lump sum.

I will direct that any request for further
particulars of the amended statement of claim be delivered by

23 October, answered by 30 October, and that the amended

defence be filed on or before 13 November - that is another

two weeks.

Now, I realise that it would have been perhaps convenient for me to deal with these issues about discovery now, but I am discouraged from doing so by the fact that Mr. Morrison tells me that he has not really studied this pleading closely anyway, and I hope that the parties can resolve the

problems which arise about discovery. If they cannot, I will resolve them.

I certify that this and the

three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.