Evans Deakin Industries Limited v Santos Limited No. Scgrg-97-1064 Judgment No. S453

[1999] SASC 453

EVANS DEAKIN INDUSTRIES LIMITED V SANTOS LIMITED
[1999] SASC 453
Civil

1 LANDER J.     I have before me two oral applications by the plaintiff.  The first is to amend the plaintiff's statement of claim in accordance with a proposed statement of claim which was provided to the court on 1 October 1999, and the second oral application is to further amend that proposed amended statement of claim.  The plaintiff's action against the defendant arises out of breaches, it is claimed, by the defendant of a heavy engineering contract entered into between the parties on 25 February 1993.  The contract related to the construction by the plaintiff for the defendant of a gas and extraction and distillation plant at the Queensland Gas Centre in south-west Queensland. 
2 The contract is said to be wholly in writing and is evidenced by the particular documents identified in para.4 of the plaintiff's statement of claim.  It is claimed in the statement of claim that there had been amendments to the contract, and those amendments are referred to in para.5 of the statement of claim.  Apart from the documents in para.4 and the amendments in para.5, it is not claimed that there are any other terms of the contract outside those documents, or any variations, or amendments, outside those amendments. 
3 The defendant applied for an order that paras.80 to 87A, and paras.88 to 93 of the plaintiff's statement of claim, which was filed on 27 September 1998, be struck out.   Shortly stated, paras.80 to 87A refer to claimed prolongation costs, and paras.88 to 93 refer to a claim by the plaintiff for a payment of $90,359 made to Q-Tech.  On 5 March 1999, Judge Burley struck out paras.80 to 87A, and paras.89 to 93 of the statement of claim, but at the same time allowed the plaintiff to re-plead the matters in those paragraphs. 
4 On 26 March 1999 the plaintiff applied to amend its statement of claim, and on 12 July 1999 Judge Burley allowed the plaintiff to amend its statement of claim to plead paras.87A1 to 87C.  On 18 August 1999 he disallowed the application by the plaintiff to re-plead paras.89.1 to 94.  The defendant has appealed from the decision of the master made on 12 July 1999 in so far as the master allowed the re-pleading of those paragraphs.  The plaintiff has appealed against the order made by Judge Burley on 18 August 1999 refusing the plaintiff leave to re-plead paras 89.1 to para.94. 
5 The hearing of the appeal and the cross-appeal came on for hearing before me on 17 September 1999.  On that occasion I heard Mr Gray QC and Mr Hoile for the defendant in support of the defendant's appeal, and Mrs Shaw QC and Mr Meyer in response, and then Mrs Shaw and Mr Meyer on the plaintiff's appeal, and Mr Gray and Mr Hoile in response.   At the end of the hearing the parties agreed, after discussion between the parties and myself, that it would be appropriate to proceed upon the basis that the plaintiff put forward a further amended statement of claim giving particulars of the material facts alleged in para.87A1 and the material facts alleged in para.87A2. 
6 It was also agreed that it would be appropriate to allow the plaintiff to put forward proposed amendments in relation to the Q-Tech claim in paras.88 and following.  On 1 October 1999 the plaintiff filed its proposed amended more explicit statement of claim.  It did so in accordance with the direction which I had given on 17 September.  When the matter came on for hearing before me this morning, Mr Hoile indicated that his client still objected to the proposed pleading in paras.88 and following, the Q-Tech pleading, and wished to be heard further by way of evidence and argument in relation to the proposed particulars to para.87A1.1 and 87A.2. 
7 In relation to the second matter, Mr Hoile argued that the particulars given were barely sufficient of the claim made, but accepting them at their face value, his client wished to challenge the accuracy, or the veracity, of the facts underlying the particulars in para.87A1.1.  He argued that his client should be entitled to adduce affidavit evidence to establish that the particular given in 87A1.1 could never be made out.  He said from the bar table, without objection, that the communication referred to in the particular would be denied by the person in the employ of the superintendent who was said in the particular to have communicated information to an employee of the plaintiff. 
8 In relation to the Q-Tech claim, he said that the claim still lacked appropriate particularity and appropriate form and structure.  Mrs Shaw argued that it would be inappropriate on an application for leave to amend to determine the factual substratum of the particular to the material fact.  She said that arguments of that kind were inappropriate on pleading arguments, and that I should decide the matter at least in respect of para.87A1 on the pleading as presented, accepting that the particulars would be made out. 
9 In relation to the Q-Tech claim, after some debate between herself and myself, she sought leave to further amend the proposed amended statement of claim by re-pleading that claim from para.88 onwards.  Can I deal with the second matter first.  In my opinion, the pleading in relation to the Q-Tech claim before Judge Burley did not disclose a cause of action against the defendant.  In that respect, I agree with the Judge.  The proposed amendment in the document filed on 1 October 1999, in my opinion, does not remedy that defect. 
10 In argument, I indicated to Mrs Shaw how I believed a claim of the kind which is raised in the Q-Tech claim ought to be pleaded.  It is not, of course, for me to indicate the appropriate form of pleading.  It is only for me to determine whether the pleading as presented is appropriate.   This pleading, however, is not appropriate because it does not properly identify the contractual relationships between the plaintiff and the defendant, between the plaintiff and Q-Tech, and the relationships between the plaintiff and the defendant which are said to give rise to the obligation on the part of the defendant to indemnify the plaintiff in respect of the payment made to Q-Tech. 
11 In my opinion, the proposed amended statement of claim does not cure the defects which were apparent in the statement of claim before Judge Burley.  It is a question now whether I should allow the plaintiff a further opportunity to plead this claim.  That question has to be determined upon the usual principle, and whether it is in the interest of justice to so allow it.  The claim is for a relatively small amount - less than $100,000.  The plaintiff has tried on a number of occasions to plead the cause of action unsuccessfully. 
12 The defendant, however, has fairly said that it would not oppose a further opportunity to the plaintiff to re-plead the Q-Tech claim.  It says it is concerned wholly with understanding the claim brought against it.  In those circumstances, it has fairly, and I think it might even be said generously, not objected to allowing the plaintiff one further opportunity in respect of re-pleading the Q-Tech claim.  In those circumstances, on the oral application by Mrs Shaw this morning to further amend the proposed statement of claim filed on 1 October 1999, I give leave to the plaintiff to file a further proposed amended statement of claim in respect of paras.88 to 92. 
13 Dealing with the first application, which is the application relating to para.87A1, Mr Hoile, in support of his application to be able to bring in evidence contrary to the particular, relied upon a decision of the Federal Court in the Rochester Communications Group Pty Ltd V Adler,  which is reported in Butterworth, unreported judgments, on 24 January 1997, the decision of Justice Beaumont.  In that case Justice Beaumont obliged a party, which wished to amend its pleading, to bring in evidence in support of the particulars which the party wished to adduce. 
14 I think, however, the case is distinguishable from the case presently before me.  The case before Justice Beaumont involved the management of very complex litigation, and his Honour was concerned with how he might manage that litigation.  In the circumstances of that case where there had been complex pleadings and an extraordinary complex factual situation, his Honour thought it appropriate to require verification of the particulars.  In my opinion, it would only be in most unusual circumstances where a party, who particularised a party's pleading, would be called upon to bring in the evidence to support the particular so that that evidence could be tested at a time when an application was made to amend the particulars. 
15 It may be, and I don't suggest otherwise, that that was a situation in the Rochester Communications Group v Adler, but it is not the case, in my opinion, in these proceedings.  It would take the matter nowhere on an application to amend for the court to be taken to the evidence for the purpose of determining whether the evidence would support the particulars.  That would, as it were, almost turn the application into a consideration of an application for summary judgment by the party who was seeking the verification of the particulars. 
16 In my opinion, that is not an appropriate procedure.   It seems to me that the plaintiff should be allowed to make the amendment if the particulars support the material fact which they are said to support.  In the circumstance of this case, I think it might be said that the particulars do support the material facts alleged.  They are not, with respect, identified in a way in which particulars would usually be identified, but I think they are sufficient to be construed as particulars to the material facts which they are said to support. 
17 It is not for me, as I have said, on this application to determine whether the particulars could ever be made out.  If the defendant believes that this aspect of the claim can never be made out, then the defendant has other remedies available to it under the Rules, but those remedies, it seems to me, ought not to be exercised during an application for leave to amend the statement of claim.   I am therefore prepared to allow, or will do so in due course, the amendment to the statement of claim by the introduction of para.87A1.1 and the particulars thereunder, and the particulars under para.87A.2. 
18 As I have said, I give the plaintiff leave at this stage to file and serve a proposed further amended statement of claim dealing with paras.88 to 92.  The defendant will be entitled to object to those further amendments at that time.  The proposed amended statement of claim is to be filed and served by Friday, 29 October 1999.   Mr Hoile, do you have any application on costs?
19 MR HOILE:    We make the application.  I don't say much in support except that, in our submission, we have been substantially successful in our arguments and in our overall position and, without splitting hairs, we leave the rest to your Honour's discretion. 
20 HIS HONOUR:  I think I will deal only with the question of costs of today at the moment.  At the end of the day, I will have to deal with costs of the appeals.   Does that suit you?
21 MR HOILE:    Yes. 
22 MRS SHAW:    Yes. 
23 HIS HONOUR:  Do you have anything to say on costs?
24 MRS SHAW:    No, not today. 
25 HIS HONOUR:  The plaintiff to pay the defendant's costs of today's hearing.  I will further adjourn the appeals and the oral application to further amend the statement of claim to -
26 MR HOILE:    Is your Honour prepared to certify fit for counsel?
27 HIS HONOUR:  Yes, I will, I will certify for counsel.   It would have to be in the week of 15 November.  Are counsel available at 9.15 am.  on any of those days?
28 MRS SHAW:    Any day, from my point of view. 
29 HIS HONOUR:  Tuesday onwards?
30 MR HOILE:    Yes, I will be available.  I understand Mr Gray will be too. 
31 HIS HONOUR:  I will make it Tuesday, 16 November 1999 at 9.15 am.  So, the formal orders today will be these:
1.Leave to the plaintiff to file and serve by 29 October 1999 a further proposed amended more explicit statement of claim dealing with paras.88 to 92. 
2.Leave to the plaintiff to amend paras.87A1.1 and 87A.2 in accordance with the particulars identified in the proposed amended statement of claim. 
3.The plaintiff to pay the defendant's costs. 
4.Certified for counsel. 
5.The appeals and the oral application further adjourned to Tuesday, 16 November 1999 at 9.15 am. 
32 MR MEYER:    Plaintiff's costs of today?
33 HIS HONOUR:  Yes, plaintiff's costs of today. 
34 ADJOURNED 10.56 A.M.  TO TUESDAY, 16 NOVEMBER 1999 AT 9.15 A.M.  

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