Foley, Pamela v Qantas Superannuation Ltd

[1998] FCA 1114

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 974 of 1997

BETWEEN:

PAMELA FOLEY
APPLICANT

AND:

QANTAS SUPERANNUATION LIMITED
FIRST RESPONDENT

QANTAS AIRWAYS LIMITED
SECOND RESPONDENT

JUDGE:	SACKVILLE J.
DATE:	28 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   An application was brought by the respondents seeking to strike out portions of the amended statement of claim filed on 19 May 1998.  That motion was itself filed on 12 June 1998.  Thereafter the parties filed written submissions in support of their respective positions.  The notice of motion filed by the respondents sought to strike out paragraphs 12, 13, 14, 15, 28.1 and 28.2 of the amended statement of claim.

I have been informed today that the applicant proposes to amend those paragraphs and there is no objection to the applicant being granted leave for that purpose.  The only remaining issues, then, are

1. the question of costs arising out of the respondents’ motion; and

2. the question of costs thrown away by the applicant’s proposal to further amend its statement of claim. 

The respondents’ position is that the applicant’s proposal to further amend its statement of claim shows that their objections to those paragraphs of the amended statement of claim were well-founded.  They should therefore be regarded as having succeeded in substance on the motion and receive their costs.  I think there would be considerable force in this argument if appropriate notice of the respondents’ objections had been given to the applicant prior to the filing of the motion. 

Ms Merkel, who appeared on behalf of the applicant, has argued that not all of the amendments that are proposed to be made were required in order to meet any objections that were implicit in the motion filed on behalf of the respondents.  Be that as it may, if the respondents had given the notice to which I have referred, they would have a strong case for a costs order in their favour.

The sequence of events indicates that after the amended statement of claim was filed on 19 May 1998, the solicitors for the respondents sent a letter on 11 June 1998, seeking further and better particulars.  There is nothing in that letter that indicates that the amended statement of claim had specific deficiencies such as to warrant the bringing of a strike out motion. The motion was filed the day after the date of the letter.

In these circumstances, it seems to me that the matter might well have been resolved without the necessity to file a motion.  The respondents could have specified the defects they identified in the amended statement of claim and sought a response from the applicant.  If the applicant refused in those circumstances to further amend the statement of claim, then doubtless the respondents would have been justified, from a costs perspective, in filing the strike-out motion.

The motion to strike out the specified paragraphs of the amended statement of claim was filed without the applicant having a prior opportunity to correct whatever defect might have been identified by the respondent.  In these circumstances I think that the appropriate course is that each party should bear its own costs of the motion.  Accordingly, I make no order for costs on the motion.  The orders that I make are as follows:

1. Grant leave to the applicant to file a further amended statement of claim within 14 days with amendments substantially to the effect of exhibit A.

1. Dismiss the notice of motion filed by the respondents on 12 June 1998.

1. Make no order as to costs of the notice of motion.

1. Direct the applicant to pay the respondents’ costs thrown away by the filing of a further amended statement of claim.

1. Direct the respondents to file and serve a defence to any further amended statement of claim within 14 days of the filing of that further amended statement of claim.

1. Direct that any further affidavits to be relied on by the respondents be filed and served on or before 25 September 1998. 

1. Direct that the applicant file and serve any affidavits in reply on or before 9 October 1998.

1. Direct that the matter be listed for further directions on 29 October 1998. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             28 August 1998

Counsel for the Applicant:	Ms J Merkel
Solicitor for the Applicant:	Patrick Grimes & Co
Counsel for the Respondent:	Mr G P McNally
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	28 August 1998
Date of Judgment:	28 August 1998