Forsayth Mining Services Ltd v Hawker-Siddley Engineering Pty Ltd

[1991] FCA 48

JUDGMENT No. f 8 / ..% .-.."

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1

: WESTERN AUSTRALIA )

DISTRICT REGISTRY	1
GENERAL DIVISfON	) No. WAG 16 of 1987
B E T W E E N :	FORSAYTH MINING SERVICES LIMITED

Applicant

and

HAWKER-SIDDELEY ENGINEERING

PTY LTD

Respondent

HAWKER-SIDDELEY ENGINEERING

PTY LTD

Cross-Claimant

and

FORSAYTH MINING SERVICES

LIMITED

Cross-Respondent

CORM:  FRENCH J.
8 February 1991

EX TEMPORE REASONS FOR JUDGMENT

ON MOTION TO STRIKE OUT STATEMENT OF CLAIM

These proceedings were instituted nearly 4 years ago, on 9 February 1987. By 11 June 1987 they had progressed to the point where a defence and cross-claim were filed, and also a reply to the defence and defence to the cross-claim. Particulars had been requested and provided in relation to the various pleadings. The next directions hearing was listed for	applicant wrote to the Registrar advising that the parties	24 June 1987. On 22 June 1987, the solicitors for the
were to meet to discuss a possible settlement of the claim on 1 and 2 July 1987. A request was made that the directions hearing be adjourned by consent on the basis that the solicitors for the applicant would apply to have the matter relisted after the negotiations had taken place. A letter consenting to this course was sent by the solicitors then acting for the respondent. Although no formal record of any appearance on 24 June is on the file, there is a note to the effect that the solicitor for the applicant was requested to attend on that day. In any event it appears that the directions hearing was adjourned sine die.
On 2 November 1989, the Registrar wrote to the solicitors for the parties noting that no action had been taken since June 1987 and indicating that as the matter might shortly be listed for mention before a Judge, they should advise whether it was to be pursued. The solicitors for the respondent replied on 8 November advising that they did not believe the applicant was pursuing its claim. However, on 3
January 1990 the solicitors for the applicant advised by telephone that the matter was being pursued. And by a letter
dated 10 January 1990 they said that they wished "to make a further attempt at settlement of the matter before proceeding with the action". It was hoped that they would be able to advise the results of the further negotiation within a month, and a request was made that the matter not be relisted during that time.
On 7 February 1990, Messrs. Phillips Fox were substituted as solicitors for the respondent in place of Messrs. Mallesons Stephen Jaques. Nothing further happened on the Court file until 26 October 1990, when the solicitors for the applicant wrote requesting that the directions hearing be relisted. On 30 October the Registrar wrote to both solicitors advising that the matter had been listed for 26 November 1990 at 9.15 am. A consent order was filed on 21 November seeking adjournment of the directions hearing from 26 November to a date after 7 December 1990. The order was made and the directions hearing fixed for 12 December. Orders were made on 12 December that the parties do, on or before 15 January, exchange lists of documents not already the subject of formal discovery and complete inspection by 22 January. The further order was made that the matter be listed for further directions on 29 January 1991 at 9.00amr at which time, it was said, "the question of leave to interrogate will be considered along with the fixing of trial dates". At that time the respondent's counsel foreshadowed the possibility of
motion in this regard should be brought on before the a further cross-claim, and was told by the Court that any adjourned directions hearing. A motion was filed on 16 January, returnable on 24 January but relisted to 25 January, seeking orders that:

1.    The Statement of Claim be struck out on the grounds that it fails to disclose a cause of action, pleads matters other than material facts, pleads irrelevant facts and may embarrass and delay the fair course and trial of the action.

2.   Alternatively paragraphs paragraphs (sic) 6, 7, 8, 9, 12, 13, 14, 18, 25, 26, 27, 31, 32, 33, 34, 35, 38, 43, 44, 45 and 46 be struck out on the grounds that those paragraphs fail to disclose a cause of action, plead matters other than material facts, plead irrelevant facts and may embarrass and delay the fair course and trial of the action.

3.   The Respondent have leave to issue a Cross Claim in terms of the Minute of Proposed Cross Claim annexed hereto.

I have read the outlines of submissions filed on both sides

and have heard the arguments of counsel for the parties. I took the view that while there might be some deficiencies in the statement of claim and some material facts pleaded as particulars, the applicant's case was adequately disclosed to the respondent, which had pleaded to it without demur nearly 3 1/2 years ago. However, on the first return day of the motion

did not identify the damages said to flow from each cause of	I accepted the proposition that the particulars as to damage
action disclosed on the statement of claim. The Court was informed by counsel for the applicant that the particulars of damage appearing in para.46 of the statement of claim related in part to all causes of action and in part to only some. However, what particulars related to which cause of action was not specified. I took the view that the respondent had a right to know the way in which the damages claim was constructed in respect of each of the causes of action advanced, and indicated that it would have leave to file a statement of claim amended as to para.46 so as to identify the damages claimed with respect to each cause of action, and the amended statement of claim along those lines has now been
filed .
The respondent also seeks at this late stage to mount a fresh cross-claim against a person not presently a party to the proceedings. Order 5 r. l(2) and (3) of the pederal Court Rules provide:

"l.. . (2) A respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject matter of the proceeding.

(3) Without prejudice to the generality

of sub-rule (2), a respondent may cross-

claim for contribution or indemnity."

In the case where a proceeding is commenced by an application

supported by a statement of claim, 0.5 rr. 5 and 6 apply (see

0.5 r.4). Rule 5 in particular provides:

"5. A respondent may file a pleading by

way of cross-claim within the time fixed for filing his defence or any extension thereof. "

The rule contemplates that cross-claims will be instituted at or about the time at which the respondent files his defence.

Any extension of time for filing a cross-claim must be sought under 0.3 r.3(1). The respondent in this case appeared initially to have proceeded upon the misapprehension that leave to file a cross-claim could be sought under 0.5 r.9(2),

but as 0.5 r.7 makes clear, 0.5 r.8 and r.9 apply only to proceedings commenced by application supported by affidavit and where the Court has not ordered that they proceed on pleadings. On the face of its motion, the respondent did not seek an extension of time within which to institute a cross- claim and even assuming that an application for an extension of time was to be implied, the supporting affidavit initially filed gave no explanation of the delay in so doing. Having regard to the fact that I had allowed time for an amendment to the statement of claim, I also allowed time to the respondent's solicitors to file an affidavit explaining the delay in seeking to file a cross-claim. And without descending to the detail of that affidavit, it is sufficient to say that much of the explanation relates to both the pendency of settlement negotiations and a belief, which might

well have been justifiably held by the respondent, that the	applicant did not intend to take the matter further, having
regard to the long period that elapsed without any action between 1987 and 1989.
Prima facie, however, the Rules of Court are to be obeyed and in order to justify the Court extending time there must be material upon which it can exercise its discretion - Ratnam v. Cumarasamy [l9651 1 WLR 8 at 12.
To allow a cross-claim to be instituted at this stage will only be to delay the matter further. The possibility of a fair trial diminishes as the time between the events to which it relates and the trial itself increases. The introduction of a cross-claim at this stage would require directions for pleadings and further programming orders. It is not just a matter of prejudice as between the parties. The due administration of justice requires that matters proceed to trial with reasonable expedition. On the other hand, there are foreshadowed further amendments to the pleadings and debate about discovery and interrogatories. Mr Dodd, who is represented here today by leave, does not consent to the order sought but on the other hand does not strenuously object. It seems likely that it will be in his interests to be a party to a joint trial of all matters in dispute rather than face the risk of separate litigation at a later date. To some extent I think the interlocutory proceedings, so far as they relate to him, may be tailored by disposing with or limiting discovery. Further, the question of the need to interrogate on the cross-
claim will be closely scrutinised in the light of those facts. I propose therefore to make the order allowing leave to the
respondent to cross-claim out of time against Mr Dodd along the lines of the cross-claim which has already been filed.
I will adjourn the matter as requested by the parties to a further directions hearing to enable them to agree programming orders, but it is my intention that those programming orders should take the matter to a fixed trial
date and it will be up to the parties to make their best estimates of the likely time of trial and terms of availability for later this year.

The orders will be:

l. The respondent have leave to cross-claim out of time against Keith Dodd in terms of the minute of cross-claim filed herein.

2.    Filing and service of the minute upon Mr Dodd's solicitors stand as filing and service of the cross-claim.

3.    Costs of the application to cross-claim be in the cause.

4.   The directions hearing be adjourned to 9.00am on 14 February.

I certify that this and the preceding

seven (7) pages are a true copy of
the Reasons for Judgment of his Honour

Justice French.

Associate:	R&
Date :	199 /

Counsel for the Applicant: Mr D.S. Ellis

Solicitors for the Applicant: Freehill, Hollingdale & Page

Counsel for the Respondent: Mr G.R. Hancy

Solicitors for the Respondent: Phillips Fox

Counsel for the Proposed Cross-Respondent: Mr C.W. Sanderson

Solicitors for the Proposed Cross-Respondent: Dearn MacKinlay

& Co.

Date of Hearing:  8 February 1991

Date of Judgment: 8 February 1991