Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch

[2000] WASC 66

HAMERSLEY IRON PTY LTD -v- THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & ORS [2000] WASC 66

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 66
Case No:	CIV:1817/1992	Heard:	23 SEPTEMBER, 19-21 OCTOBER 1999
Coram:	PARKER J	Delivered:	17/03/00
No of pages:	50	Judgment Part:	1 of 1
Result:	Application to further amend statement of claim allowed in part.
PDF Version

Parties:	HAMERSLEY IRON PTY LTD THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH JOHN MERCER JOHN MOSSENTON JEFFREY RAVEN MICHAEL OVERTON JOCK FERGUSON THE AUSTRALIAN WORKERS' UNION, WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS MICHAEL LLEWELLYN HENRY ROZMIANIEC IAN PURKISS MARK COOMBER THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKER'S UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH MARTIN DAVIDSON JAMES MURIE TERENCE McINERNEY MICHAEL ROBERTS THE CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH DAVID McINTYRE NEVILLE WORTLEHOCK DAVID ABBOTT
Catchwords:	Procedure Leave to further amend statement of claim Principles Delay Whether new causes of action Discretion
Legislation:	Rules of Supreme Court O 21 r 5
Case References:	Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Company Ltd (No 4) [1985] 1 Qd R 127 Commonwealth v Verwayen (1991) 170 CLR 394 Dollar Sweets Pty Ltd v Federated Confectionary Association of Australia [1986] VR 383 Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404A; 23 July 1998 Fontin v Katapodis (1962) 108 CLR 177 Hadmor Products v Hamilton [1983] 1 AC 190 Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors [1999] WASCA 175 Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors, unreported; SCt of WA (Parker J); Library No 970184; 24 April 1997 J Lyons & Sons v Wilkins [1899] 1 Ch 255 Johnstone v Stewart [1968] SASR 142 Kenny v Sholl (1905) 7 WALR 197 Ketteman v Hansel Properties Ltd [1987] AC 189 Lamb v Cotogno (1987) 164 CLR 1 Merkur Island v Laughton [1983] 2 AC 570 Moore v TWT (1991) 105 FLR 350 Morgan v Banning, unreported; FCt SCt of WA; Library No 990199S; 21 April 1999 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Re Van der Lubbe [1949] SRNSW 309 Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors (1994) 13 WAR 323 Torquay Hotel v Cousins [1969] 2 Ch 106 Baume v Commonwealth (1906) 4 CLR 97 Bill's Discount Services Pty Ltd (in liq) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987 Boral Bricks NSW Pty Ltd v Frost (1987) A Tort Rep 80-097 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 Dallas Development Corp Pty Ltd v Western Australian Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998 Dare v Pulham (1982) 148 CLR 658 Davey v Harrow Corporation (1958) 1 QB 60 Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563 East West Airlines (Operations) Limited v Commonwealth of Australia (1983) 49 ALR 323 Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711 Grljusich v Grljusich, unreported; SCt of WA (Seaman J); Library No BC9301032; 6 May 1993 Jones v Dunkel (1959) 101 CLR 298 Letang v Cooper (1965) 1 QB 232 Lumley Life v IOOF of Victoria Friendly Society (1991) 100 ALR 600 Metal Fabrications (Vic) Pty Ltd v Kelcey and Anor [1986] VR 507 Renowden v McMullin (1970) 123 CLR 584 Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association [1971] 1 NSWLR 760 The Australian Electrical Electronics Foundry & Engineering Union (Western Australian Branch) & Ors v Hamersley Iron Pty Ltd [1999] WASCA 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HAMERSLEY IRON PTY LTD -v- THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & ORS [2000] WASC 66 CORAM : PARKER J HEARD : 23 SEPTEMBER, 19-21 OCTOBER 1999 DELIVERED : 17 MARCH 2000 FILE NO/S : CIV 1817 of 1992 BETWEEN : HAMERSLEY IRON PTY LTD

Plaintiff

AND

THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH
First Defendant

JOHN MERCER
JOHN MOSSENTON
JEFFREY RAVEN
MICHAEL OVERTON
JOCK FERGUSON
Second Defendants

THE AUSTRALIAN WORKERS' UNION, WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS
Third Defendant

MICHAEL LLEWELLYN
HENRY ROZMIANIEC

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IAN PURKISS
MARK COOMBER
Fourth Defendants

THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKER'S UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH
Fifth Defendants

MARTIN DAVIDSON
JAMES MURIE
TERENCE McINERNEY
MICHAEL ROBERTS
Sixth Defendants

THE CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH
Seventh Defendants

DAVID McINTYRE
NEVILLE WORTLEHOCK
DAVID ABBOTT
Eighth Defendants

Catchwords:

Procedure - Leave to further amend statement of claim - Principles - Delay - Whether new causes of action - Discretion

Legislation:

Rules of Supreme Court O 21 r 5

Result:

Application to further amend statement of claim allowed in part.

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Representation:

Counsel:

Plaintiff : Mr M J Buss QC & Mr J R B Ley
First Defendant : Mr W R Haylen
Second Defendants : Mr W R Haylen
Third Defendant : Mr R W Richardson
Fourth Defendants : Mr R W Richardson
Fifth Defendants : Mr J Courtis
Sixth Defendants : Mr J Courtis
Seventh Defendants : Mr S C Rothman & Mr G Droppert
Eighth Defendants : Mr S C Rothman & Mr G Droppert

Solicitors:

Plaintiff : Freehill Hollingdale & Page
First Defendant : Gibson & Gibson
Second Defendants : Gibson & Gibson
Third Defendant : Dwyer Durack
Fourth Defendants : Dwyer Durack
Fifth Defendants : Wojtowicz Kelly
Sixth Defendants : Wojtowicz Kelly
Seventh Defendants : Granich Partners
Eighth Defendants : Granich Partners

Case(s) referred to in judgment(s):

Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Company Ltd (No 4) [1985] 1 Qd R 127
Commonwealth v Verwayen (1991) 170 CLR 394
Dollar Sweets Pty Ltd v Federated Confectionary Association of Australia [1986] VR 383
Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404A; 23 July 1998
Fontin v Katapodis (1962) 108 CLR 177
Hadmor Products v Hamilton [1983] 1 AC 190
Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors [1999] WASCA 175


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Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors, unreported; SCt of WA (Parker J); Library No 970184; 24 April 1997
J Lyons & Sons v Wilkins [1899] 1 Ch 255
Johnstone v Stewart [1968] SASR 142
Kenny v Sholl (1905) 7 WALR 197
Ketteman v Hansel Properties Ltd [1987] AC 189
Lamb v Cotogno (1987) 164 CLR 1
Merkur Island v Laughton [1983] 2 AC 570
Moore v TWT (1991) 105 FLR 350
Morgan v Banning, unreported; FCt SCt of WA; Library No 990199S; 21 April 1999
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Re Van der Lubbe [1949] SRNSW 309
Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors (1994) 13 WAR 323
Torquay Hotel v Cousins [1969] 2 Ch 106

Case(s) also cited:

Baume v Commonwealth (1906) 4 CLR 97
Bill's Discount Services Pty Ltd (in liq) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987
Boral Bricks NSW Pty Ltd v Frost (1987) A Tort Rep 80-097
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
Dallas Development Corp Pty Ltd v Western Australian Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998
Dare v Pulham (1982) 148 CLR 658
Davey v Harrow Corporation (1958) 1 QB 60
Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563
East West Airlines (Operations) Limited v Commonwealth of Australia (1983) 49 ALR 323
Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711
Grljusich v Grljusich, unreported; SCt of WA (Seaman J); Library No BC9301032; 6 May 1993
Jones v Dunkel (1959) 101 CLR 298
Letang v Cooper (1965) 1 QB 232
Lumley Life v IOOF of Victoria Friendly Society (1991) 100 ALR 600


(Page 5)

Metal Fabrications (Vic) Pty Ltd v Kelcey and Anor [1986] VR 507
Renowden v McMullin (1970) 123 CLR 584
Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association [1971] 1 NSWLR 760
The Australian Electrical Electronics Foundry & Engineering Union (Western Australian Branch) & Ors v Hamersley Iron Pty Ltd [1999] WASCA 175

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1 PARKER J: This decision is in respect of an amended chamber summons of the plaintiff for leave to re-amend the statement of claim in accordance with a minute dated 19 July 1999 and also to re-amend the particulars of liquidated damages in the statement of claim in accordance with amended particulars dated 27 July 1999. At present the statement of claim is in the amended form as ordered by Bredmeyer M on 22 October 1992.

2 The proceedings were commenced in 1992. By the statement of claim as amended in October 1992 the plaintiff primarily claims damages for a variety of tortious and statutory wrongs which it alleges against the defendants. All of these relate to industrial action at various mining and associated operations of the plaintiff in the northwest of the State, especially at Tom Price, Paraburdoo and Dampier, in or about June 1992. The defendants are variously trade unions or union officials who were also employees of the plaintiff. A variety of declaratory and injunctive relief is also sought.

3 The action is proceeding in the long Causes list and I have had responsibility for its oversight for some years. The process of readying this extensive and complex action for trial has been extremely slow and has been characterised by a great deal of interlocutory skirmishing which has, at times, involved appeals from interlocutory decisions. In mid-1999 I explored with the parties the fixing a timetable for the final steps that remain to trial but this had to be put aside in particular because of the plaintiff's proposed revision of the statement of claim. The outcome of this application may require a revisiting of steps already completed by the defendants such as pleadings, discovery and interrogatories and the preparation and service of proposed expert evidence as well as requiring further factual investigation and reproofing of witnesses.

4 In part the slow progress to date can be attributed to the extent and the complexity of the issues and, for example, to the amount of documentation which has been the subject of discovery. There has also been much delay as a consequence of a number of changes to the legal advisors representing various of the defendants. Nevertheless, unfortunately there are other factors. I had occasion to consider the progress of the action from its inception until the end of 1996 in a decision which I delivered on 24 April 1997 on an application to dismiss the action for want of prosecution; Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors, unreported; SCt of WA (Parker J); Library No 970184; 24 April 1997 and on appeal Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union -

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Western Australia & Ors [1999] WASCA 175 delivered 14 September 1999. I will not canvass again, although I have regard to, the findings I made in that decision which indicated delay at times on the part of the plaintiff and various of the defendants. I have also considered progress of the proceedings since the beginning of 1997 to the present time. There has been further delay in particular on the part of some defendants and steps such as springing orders have been necessary to ensure compliance with interlocutory orders. While that is true of some defendants it is not, by any means, the position with respect to all defendants. While the plaintiff has at times been less than prompt in dealing with various matters overall its conduct of the action since January 1997 does not involve delay. That last observation is made in respect of the general progress of the action toward trial and I deliberately omit from that observation any consideration of the plaintiff's conduct in respect of the present application. I will deal with this in the course of these reasons.

5 The statement of claim presently extends to some 65 pages. As amended in October 1992 it has been the basis on which the pleadings consequent on the claim and the preparation for trial, including the numerous interlocutory applications, have been undertaken, especially discovery and interrogatories. Generally, the plaintiff seeks to characterise the present application to further amend the statement of claim as essentially to "tidy it up" in light of all that has emerged during the preparation to date, including a review of the issues and the evidence which is now available, so as to present its claim with greater clarity, completeness and coherence. That puts something of a brave face on the application as there are few allegations indeed which the plaintiff does not wish to amend and many of the proposed amendments involve either or both extensive additions to and deletions from the present pleading.

6 The defendants take a variety of positions in respect of the detail of the amendments proposed by the plaintiffs but, generally speaking, it may be said that it is submitted that the effect of the plaintiff's application is to produce a complete rewriting of the statement of claim some seven or more years after the initiating events. In particular, it is contended that a number of the proposed amendments should be seen as intended to secure for the plaintiff some tactical advantage at trial and others introduce new causes of action. It is submitted that for the most part no adequate justification for the proposed amendments is offered, yet they would prejudice the defendants in the preparation of their cases and would result in even greater delay and cost.

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7 The Court has a wide discretion to grant leave to amend a statement of claim; Rules of the Supreme Court O 21 r 5. Leaving aside amendments which may add or substitute a new cause of action, and issues raised by a few particular amendments which are proposed, the parties are not in significant disagreement as to the principles which guide this discretion. The discussion in Moore v TWT (1991) 105 FLR 350 at 353 - 4 confirms that the onus is on the applicant to show that a proposed amendment is necessary and if that is done the amendment will usually be allowed if the applicant is also able to show that there will be no injustice to the defendants which would outweigh the considerations which favour allowing the amendment. The more timely an amendment is proposed, and the more it raises clear issues, the less will be the weight of the burden of persuasion that the amendment is necessary and that it will not involve injustice. Because the onus is on the applicant it is not essential for the defendants to demonstrate on affidavit the prejudice which the amendment would occasion. Without such evidence the Court may be able to assess the prejudice to the defendants by a consideration of the record itself and the nature and circumstances of the proposed amendment. A useful indication of matters which have been found relevant in other circumstances is to be found in the decision of Kirby J in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 169 - 172. When considering the prejudicial effect to the defendants of further delay it is no longer to be lightly assumed that an award of costs will cure the prejudice; Commonwealth v Verwayen (1991) 170 CLR 394 at 416, 464, Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors (1994) 13 WAR 323 at 334 - 335. As Lord Griffiths said in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220:

"Whether an amendment should be granted is a matter for the discretion of the trial Judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a Judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other."

8 Apart from prejudice to the defendants it is also relevant especially in view of O 1 r 4A and 4B to consider the public interest in having

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litigation in the Court conducted in an orderly and efficient manner so as to enable an efficient use of available resources and the disposal of business at a cost affordable to the parties. These considerations must, however, be understood and applied in light of the decision of the High Court in Queensland v J L Holdings Pty Ltd (supra) cf at 154 which reminded us that efficient case management is but a means to the achievement of the ultimate objective of the Court, which remains the attainment of justice, and that no rule or principle of caseflow management can be allowed to supplant that aim. In particular it is said in that decision that, except in extreme circumstances, the principles of caseflow management should not be used to shut a party out of litigating an issue which is fairly arguable. I note that observation was made in the context of a case where the issue was whether a defendant should be allowed at a late stage to raise a further matter by way of defence against the claim it was seeking to meet. It remains relevant but it may bear a different weight where the issue is whether the plaintiff should be allowed after many years to extend the bases upon which it pursues its claim against the defendants.

9 The plaintiff is a substantial public company with extensive resources. Many of the defendants are individual wages employees with no particular means and the other defendants are trade unions. This extensive application to further amend was first made well over six years after the statement of claim was last amended and over seven years since the events which gave rise to the action. The plaintiff has, by affidavit, explained this very considerable delay on the basis that it was considered preferable that there should be one consolidated or omnibus application to amend rather than many applications made progressively over the years as the need for individual amendments became apparent to those having the conduct of the action for the plaintiff. While this attitude may be commendable from a number of points of view, it was a conscious decision by the plaintiff not to seek amendments or to give notice of them as and when the need for them became apparent. In many cases an amendment proposed reflects information of which the plaintiff became aware as a consequence of discovery or interrogatories. Some such information was known to the plaintiff as early as 1993 and the rest progressively over the intervening years, yet the consequential amendment has not been sought nor notice of it given until July 1999. The plaintiff must bear the consequences of the risk which this approach to amendment necessarily involves especially where, by virtue of the delay, the defendants are now likely to be embarrassed in their pursuit of appropriate factual enquiries. It is generally the case that until this

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application the defendants have undertaken the preparation of their defences on the basis that the live issues between them and the plaintiff are those identified in the existing statement of claim and the consequent pleadings. Necessarily, many interlocutory applications have been fought and decided on the basis of the issues so identified. To the extent that the plaintiff was aware at any earlier time of the need to amend its claim it was the deliberate choice of the plaintiff not to amend, or give specific notice timeously, which now gives rise to the prospect that if some proposed amendments are allowed a great deal of cost and effort would be wasted and the hearing delayed even further. A number of the amendments are the consequence of more detailed preparation by the plaintiff's advisors. In some part, but far from entirely, this is in light of additional evidentiary material which has become available to the plaintiff from discovery and interrogatories. In some instances further evidence has put paid to some factual issues, but in others it has given rise to new ones. The proposed amendments also reflect in part a review by the plaintiff of legal and evidentiary issues. It submits this has only been feasible since the conclusion of the very extended process of discovery. These matters will be considered further in these reasons.

10 To the extent that many of the amendments seek to clarify the real issues or to put aside matters that are no longer to be pursued, amendment at this stage can be expected to both aid the trial process and avoid further unnecessary effort and preparation. I also note that it is not a matter of complete surprise that the plaintiff now seeks to amend the statement of claim. This has been foreshadowed, although usually in a most general way, on a number of times since at least 1996 especially in the course of directions hearings and interlocutory proceedings. While that is true it must be said, however, that there has been no indication of the nature, form and extent of the revision and amendments that are now proposed.

11 One issue which is raised in response to a number of the proposed amendments is an objection that in truth they give rise to a new cause of action and that they seek to do so beyond the limitation period of six years which is applicable. The plaintiff relies on Rules of the Supreme Court O 21 r 5(5). The discussions by the Full Court of the relevant concept of a "cause of action" in that rule to be found in Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404A; 23 July 1998 and Morgan v Banning, unreported; FCt SCt of WA; Library No 990199S; 21 April 1999 have clarified that the notion comprehends a factual situation which will entitle a person to approach the Court for relief rather than the old categories of action ie, the "form of action". See, in particular, the discussion by Wheeler J in Morgan v Banning at

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13 - 19. It is in this sense of describing the factual basis on which the plaintiff approaches the Court for relief as being the cause of action that O 21 r 5(5) empowers amendment where it is just to do so, notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, provided that the new cause of action arises out of the same facts or substantially the same facts as those raised by the existing claim. As has been made clear O 21 r 5(5) is not intended to, and cannot, override the operation of the Limitation Act1935. It is available, however, as a matter of power, in circumstances where the existing pleading depends upon the same or substantially the same facts as those upon which the proposed amendment relies. Hence, O 21 r 5(5) may be available even though some of the facts out of which the new cause of action arises are peculiar to it and some of the facts out of which the existing cause of action in the pleading arises are peculiar to that cause of action. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old one; Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 240 - 241. Hence, whether a claim is "new" or whether it arises substantially from the same facts as those presently pleaded are largely and often questions of degree; Dye v The Griffin Coal Mining Co Pty Ltd (supra) per Owen J at 5.

12 Even where the proposed amendment may as a matter of power be allowed pursuant to O 21 r 5(5) it remains necessary for the applicant to satisfy the Court that it is just to do so. As briefly discussed earlier a great range of factors may weigh in the consideration of this issue including the interest of justice to be served by allowing the plaintiff to litigate an issue which it desires to have determined and the potential injustice to the plaintiff if it is denied this opportunity. Where the plaintiff seeks to introduce the amendment into its claim after considerable delay, and in particular where there is a new cause of action to be introduced by the amendment, it will be necessary inter alia to enquire into the reason for the delay and to consider carefully its effect on the defendants in deciding whether or not the justice of the situation favours allowing the amendment. Where the proposed amendment relies on the same or substantially the same facts it is less likely that the defendants will suffer any significant prejudice from the amendment than where the amendment will introduce new facts of significance or which are substantial in number. There will be cases where the defendant will be prejudiced in the preparation of the defence even though the amendment relies substantially on existing factual allegations where the nature of the amendment requires existing facts to be considered in a different light or for a different

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purpose. Inevitably it is necessary to consider the particular circumstances of each case to reach views about these matters.

13 Potential injustice to the defendants may be alleviated or sufficiently compensated by an order for costs or by allowing further delay of the trial process but again these matters must be viewed in the circumstances of each case and, as mentioned earlier, nowadays it is accepted that an award of costs is no longer necessarily a sufficient answer for every prejudice or degree of prejudice that might be suffered by the defendants from a proposed amendment.

14 In this present case it was submitted generally for the defendants that this application should be rejected out of hand especially because of its very considerable extent, the significance of many of the proposed amendments, the long delay on the part of the plaintiff in seeking to amend, and the relatively advanced stage of preparation of the case for trial. In further support it was stressed that some amendments would introduce new causes of action. While such an approach is tempting, in my view it would be inappropriate. Amendments are sought on a variety of bases, for differing reasons, and to different effect. It is not possible to categorise them all in any similar fashion or to justify a sweeping dismissal of them all. Many of the proposed amendments are not the subject of particular objection by any of the defendants and would have the effect of improving the clarity with which the plaintiff's claim is identified. Such amendments can only facilitate the conduct of this action. Even though there has been delay in respect of some proposed amendments its adverse effect for the defendants has in some cases been negligible. (In respect of other amendments, however, it may be most material or determinative.) In respect of some amendments usual consequential orders on the granting of leave, including costs, can be expected to cater sufficiently with any general prejudice to the defendants. Given these circumstances the rejection of the overall application out of hand would not be justified.

15 I turn therefore to a consideration of the objections made to particular proposed amendments. There is no particular objection raised by any defendant to many of the proposed amendments. Having regard to the nature, purpose and effect of these unchallenged amendments they will be allowed without further detailed consideration. These reasons will deal only with those proposed amendments to which particular objection is taken. In the reasons that follow it will be convenient to refer to paragraphs of the statement of claim simply by the number of the paragraph.

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Paragraph 2A

16 The existing pleading describes in general terms the nature of the plaintiff's business and asserts that in its furtherance the plaintiff had become a party to "Long Term Supply Contracts" a number of which were specifically identified together with "various other contracts for the sale iron ore". The proposed amendment seeks to make the unchanged general description of the plaintiff's business a defined term "the Business", and to delete some of the previously specified agreements, to insert new agreements, and to better describe others of the specified agreements.

17 The introduction of "the Business" appears to tighten up and improve the pleading and facilitate reference to the plaintiff's business elsewhere in the pleading without giving rise to any real difficulty for the defendants. The introduction of new specified agreements and the changes in description of some agreements would open up new areas of factual enquiry, but as the new agreements and descriptions have been anticipated in the processes of particulars and discovery there is no real substance to the perceived difficulties that are advanced by the defendants.

18 Although not reflected in the minute it was also moved that the date of an agreement alleged in 2A(f) be amended from 28 July 1989 to 14 September 1978 to which there was no particular objection.

19 I would allow the proposed amendments.

Paragraph 3

20 Most of the objections originally raised were withdrawn during argument. What remains are objections to the amendments proposed to subparas (c), (e), (j), (k), (m) and (n). These would introduce new "Third Party Contracts" which were not among those previously specified in the pleading.

21 While the new contracts have not been specifically identified in the statement of claim until now the existing pleading introduced the specified contracts with the words "including but not limited to …". Each of the new contracts has been discovered by the plaintiff so that defendants have long had notice of them.

22 I would allow the proposed amendments.

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Paragraph 4

23 There were objections, although not maintained with any determination, to the plaintiff's proposal which is in essence to add by way of particulars, details of the contract pursuant to which it purchased the fuel it required as is already alleged. No prejudice has been made out by any defendant of these amendments and none is apparent. The amendments will be allowed.

Paragraph 5

24 Other objections having been withdrawn, there remains an objection by two of the defendants. The amendments would provide particulars of the consideration for the service contract and of the "mining work" alleged in the existing pleading. The latter narrows the scope of the existing pleading. The objection is not supported by evidence of any particular prejudice and none is apparent from the circumstances and the nature of the proposed amendments.

25 The amendments will be allowed.

Paragraph 6

26 The proposed amendments involve what may be described as clarification or tidying-up of the existing pleading but, in particular, would introduce specific reference to the operation of the stockpile and loading facilities at the Port of Dampier. Previously 6 had referred only to the port facilities although the existing 2(c) had already referred specifically to the stockpiling and loading operation.

27 It is objected that the proposed amendments introduce entirely new subject matter with the consequence that it would be necessary for the defendants to seek to determine whether in June 1992 there was, and if so what, interruption to the stockpiling and loading operations at the Port and with what effect on profitability.

28 Given the nature of the existing pleading I am not persuaded that the proposed amendment would introduce any new allegation. In the context, the existing reference to port facilities at Dampier would appear wide enough to include the stockpiling and loading facilities at the port. The amendment makes the intended scope of the pleading more clear. I would not see that the amendment would require new or different preparation as alleged by two of the defendants.

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29 I would allow the amendments proposed.

Paragraph 7

30 The proposed amendments would have the effect of including the interests in land, being the mineral leases and special leases set out in 2, within the existing allegation in 7 that the "Hamersley Iron Act" is a "Government Agreement" within the meaning of s 2 of the Government Agreements Act 1979. The existing 2, however, already alleges that these interests in land were held pursuant to the Hamersley Iron Act, more specifically the "Iron Ore (Hamersley Range) Agreement Act" and the existing 7 alleges that Act to be a "Government Agreement" within the meaning of the Government Agreements Act 1979. Hence, in these respects, the amendments do not add to the present allegation, they clarify it out of caution. The only other change proposed is to include "at all material times" which would merely make express the probable effect of the present pleading.

31 For these reasons it is not apparent that any of the defendants would be prejudiced by the proposed amendments and they will improve the present pleading. These amendments will be allowed.

Paragraphs 17 - 20 and the second Prayer for Relief

32 Objection is made to the proposed amendments to each of the above paragraphs by which the phrase "employees, officers or agents" (of a union defendant) would become "officers, agents or representatives". It also proposes the same words be used in the second Prayer for Relief which seeks an injunction restraining union defendants by their respective "officers, servants and agents or otherwise".

33 For the plaintiff it is contended that a "representative" is a word of sufficient certainty of scope in this context to avoid embarrassment to the defendants. It is submitted the word would include employees, agents and officers. The particular context of 17, 18, 19 and 20 is an allegation that identified persons acted within their express, implied or ostensible authority for identified union defendants so that the knowledge of the persons is to be attributed to the respective union. In such a context the objection for the defendants has some merit. The notion of a representative in this context is less precise than the existing words. In some contexts the description for example of executors and administers as personal representatives would not detract from the certainty of legal relationship alleged or lead to lack of clarity as to the legal incidents of

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that relationship. In the present context, however, it would diminish the certainty of the present pleading to allow an allegation as to the implied or ostensible authority of a "representative" of a union, rather than an employee, particularly to found an allegation that the representative's knowledge is to be attributed to the union.

34 The plaintiff also submits that the amendment would create consistency in pleading. In this respect reference is made to 43(a). But that is an allegation of conspiracy and it is said that the personal defendants were acting as officers, employees or representatives on behalf of the union defendants when they gave instructions etc to employees. While there may be room for dispute as to the notion of a representative in that context, it is a materially different context from 17 - 20. The existing use of representative in 43(a) does not, in my view, justify the introduction of "representative" into these paragraphs. I would not allow these proposed amendments to 17, 18, 19 and 20.

35 Other changes are contemplated which are no more than minor alterations in style. There is no objection to them. They will be allowed.

36 The introduction of representatives into the second Prayer for Relief instead of the existing "servants" appears intended to be consistent with the language of 17 - 20. As the present phrase is followed immediately by "or otherwise" the proposed amendment would appear to have no legal effect in any event. This amendment to the second prayer for relief will not be allowed.

Paragraph 22A

37 Objection is made to the introduction of the proposed 22A. This proposed amendment is complimentary to the amendments to 22 to which no objection is made. The existing 22 alleges certain terms in all contracts of employment between the plaintiff and its employees. The amendments proposed would confine the allegations in 22 to the Award employees of the plaintiff and allege that the specified terms were express.

38 The proposed 22A is in the alternative to 22 and would allege that terms essentially similar to two of the terms alleged in 22 are to be implied. Particulars supporting the implication are provided.

39 Thus the amendments do not expand the scope of the existing pleading. They confine it to Award employees, but would assert

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separately express and implied terms. While there are fewer implied terms asserted, their terms are similar to two of the express terms. The objection, as I understand it, is that the amendment fails to identify what parts of the contract are express and what are to be implied; while 22 and 22A would be distinct and alternative it is submitted that when read with 10 the allegations could be understood as asserting that the terms were partly oral, partly written and partly implied.

40 Paragraph 10 is dealing with the contracts of employment generally. The proposed 22 and 22A are dealing with particular terms of those contracts. Of those terms some are alleged to be express, alternatively it is proposed to allege that two terms are to be implied. I do not see that recourse to 10 is either necessary or intended. The nature of the allegations in the proposed 22 and 22A are clear enough to avoid embarrassment or prejudice. The fact that there are such pleas in the alternative is not unusual or surprising. In any event the position of the defendants, if the amendment is allowed, is certainly no worse than at present.

41 I would allow the introduction of 22A.

Paragraph 23

42 This is an allegation of knowledge by the defendants of those terms of the contracts of employment that are alleged in 22. The amendments would also include those terms now alleged to be implied by 22A. In these respects the amendments are unproductive of real difficulty for the defendants.

43 The amendments would also assert, in the alternative, knowledge of terms "to the effect of" those alleged. Objection is made to this because it expands the plaintiff's case and because of the imprecision (when coupled with 22A) of implied terms "to the effect of" those alleged. Given the clear terms pleaded in 22 and 22A, which are not materially different from those alleged in the existing 22, it is difficult to see how the widening of the allegation to include terms to the effect of those alleged, and whether express or implied, could provide the plaintiffs with any unreasonable advantage or be productive of any real difficulty for the defendants. There is no change to the real force of what has always been alleged in this respect.

44 Particular objection is taken to the proposed particular (2) of the matters from which the plaintiff says knowledge is to be inferred. This

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would allege that all of the defendants had been involved in the negotiation of the relevant Award and in the resolution of various industrial disputes. It is objected that this amendment would prejudice the defendants because it would now require detailed factual enquiry of events prior to 16 June 1992. The lapse of time must be expected, it is submitted, to preclude or limit the successful pursuit of such enquiries. The plaintiff, however, points out that it had been alleged until now that the defendants were unions or union officials and that the unions were parties to the Award. Hence, it is submitted, the defendants ought by now to have taken full instructions and made factual enquiries to meet that allegation and so should not have need to make further factual investigations because of this amendment.

45 The proposed particular introduces for the first time the resolution of industrial disputes. The disputes relied on are not identified. Nor are they identified as to time save for "prior to 16 June 1992". Their subject matter is extremely broadly stated viz "in relation to or connected with the employment of Award employees". There is nothing to identify the relevant role of the non-union defendants in each of the disputes from which the knowledge is to be inferred other than being "involved". The amendment also raises for the first time the negotiations for the Award. The existing particular to 23(a) can be seen to have raised for the union defendants the existence and terms of the Award, but not its negotiation. In all other respects the proposed particular (2) appears to bring into issue many, vaguely identified, factual events extending over an unspecified time before the events otherwise material to this action. To provide adequate instructions regarding such a particular would require the defendants, particularly the non-union defendants, to seek to recall events and details relating to them which were not previously in issue and which are unlikely to have been investigated given the existing particulars. By their nature these events are unlikely to have been of particular novelty or significance to the defendants at the time they occurred. It is not reasonable in my view to expect that such enquiries could be satisfactorily pursued at this late stage. The events are of such a nature and occurred too long ago to expect those involved to have any or any reasonable recollection of them if asked about them for the first time at this stage.

46 I appreciate, as the plaintiff submits, that, for example, the first and second defendants pleaded in defence that those defendants had no actual or constructive knowledge of the matters then alleged in 22 of the statement of claim. But that pleading does not suggest to me that the defendants and the officers of the union concerned with giving instructions for that defence necessarily turned their minds to industrial

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disputes in which all or any of them may have had some involvement at various times before 16 June 1992, nor to the processes of negotiation of the Award. The allegations and particulars then pleaded would not naturally have suggested consideration of such matters.

47 In my view the nature of the proposed particular (2) would be likely, if allowed, to give rise to significant prejudice to at least some defendants in the adequate preparation of their defence. I would not allow the proposed particular (2).

48 Objection is also made to the proposed particular (6) which would allege the existence of the terms was "obvious". As a particular of means of knowledge a pleading in those terms is particularly unhelpful. Counsel differed as to whether it was an assertion of fact or of a conclusion. Even if the former, counsel for the plaintiff suggested that further particulars might be required to overcome the possible inadequacy of "obvious" for its purpose. It is not appropriate to consider allowing this amendment on the basis that further particulars of the proposed particular would then be required. The plaintiff must justify the need for or desirability of this amendment. In its present form it cannot be justified. The proposed particular (6) will not be allowed.

49 There was also objection to the proposed new particulars (7) and (8) each of which refer to letters dated 26 June 1992 which it is alleged were sent to various of the defendants. The objection seems to be that the particulars failed to identify what knowledge it is contended should have been acquired, or may be inferred, from the letters. As the particulars provide the sources of knowledge on which the plaintiff relies to prove that the defendants had knowledge of the terms of contract pleaded in 22 and 22A, it seems that the point of the objection is not made out. The letters will either provide reason to find or infer knowledge of some or all of the terms of contract pleaded, or they will not. This objection is not made out. Particulars (7) and (8) will be allowed.

50 Otherwise there is no other particular objection to the amendments proposed to 23 which will be allowed.

Paragraphs 24, 25 and 26

51 The plaintiff proposes to move 24 and 26 to become 42G and 42H respectively. In the process, however, they would be amended so that 26/42H would no longer allege that one Beales refused to become a member of the first, third, fifth or seventh defendants. The plaintiff

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further proposes the deletion of 25 which presently alleges the plaintiff had invited Beales to become a member of one of those unions when he became an employee.

52 The plaintiff submits that the existing pleading makes allegations beyond what is necessary to establish the causes of action on which it relies so that it seeks merely to remove the unnecessary allegations.

53 It is objected that the effect of what is proposed is to change the factual basis on which the plaintiff advances it case in a most material matter for the defendants. It is apparent that a major issue, at least for the defendants, in the industrial dispute which gave rise to this action was the employment of Beales by the plaintiff even though he was not a member of any of the defendant unions. Until now the plaintiff has always alleged that when Beales was employed he was invited to become a member of a union but he refused. Nevertheless, he was employed. Now the plaintiff seeks to amend so that the allegation would be only that it employed Beales and that Beales was not a member of the defendant unions at all material times.

54 From all that is before me, it is clear that this involves a significant change in its pleaded factual allegations, one which is to the apparent disadvantage of the defendants in what may well prove to be a material issue. If allowed, it may be taken to be inevitable that the defendants would seek to prove these matters on which the plaintiff has until now relied. This could prove difficult, perhaps even impossible, at this late stage in these proceedings. Many possible sources of factual proof may now be expected to be adversely affected in their recollection of relevant detail. At the least this issue would now require to be pursued by further discovery and interrogatories.

55 While it may be accepted that the plaintiff has no need to prove the facts which it now seeks to delete or change, it is also accepted by counsel for the plaintiff that these allegations do not, in any legal sense, detract from the causes of action which it seeks to make good. The defendant is not embarrassed in law by the unnecessary allegations. As the defendants have hitherto relied on them, and as they can be expected to have some materiality in the cases for the defendants, it would be unjust to allow amendment at this stage which would require that they should seek to prove what has until now been alleged against them and admitted by them in their pleadings.

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56 The plaintiff seeks to argue that if the amendments are allowed, the defendants can decide whether they wish to raise by amended defences what has been deleted from the statement of claim. If this is done, the plaintiffs will then have to decide what form its amended reply would take. While that is all feasible, it ignores the significance of the material change in its factual allegations which the plaintiff now wishes to make, and the practical prejudice which is apparent to the defendants if the plaintiff is allowed to amend in this way.

57 It is not the case that the plaintiff seeks to amend because the present pleading is the result of some mistake or error. All that is contended is that the plaintiff originally chose to plead more than it needed to.

58 Anticipating the view I have formed as to the proposed 42D - 42V it would not be appropriate to re-number 24 - 26 as proposed.

59 For these reasons I would

(a) allow the present 24 to be amended to accord with the proposed 42G

(b) not allow the deletion of the present 25,

(c) not allow 26 to be amended to accord with the proposed 42H, and

(d) not allow 24, 25 and 26 to be renumbered as 42G, 42GA and 42H.

Paragraph 32

60 In the existing pleading it is alleged that Mercer (a second defendant), Lllewellyn (a fourth defendant), Davidson (a sixth defendant) and Abbott (an eighth defendant) and one Stevens in their respective capacities as union officers instructed, or alternatively counselled or encouraged, or alternatively caused or procured employees at Tom Price not to work or attend work (the "Third Instruction"). By way of particulars it is presently pleaded that the Third Instruction was given at a meeting of those named persons with employees of the plaintiff at Tom Price "at which meeting the second defendants proposed or supported a resolution that the employees stop work indefinitely". The plaintiff now seeks to substitute those named persons for the second defendants in this particular. It submits that, because of the primary allegation and the particular that the named defendants were at the meeting, none of the

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named defendants could be taken by surprise or genuinely embarrassed in their preparation to meet the amendment.

61 The only objection is by the seventh and eighth defendants who submit that the amendment would have the effect that for the first time someone associated with the seventh and eighth defendants is alleged to have proposed or supported the resolution. While that is so, this is but a part of the particulars. The primary allegation remains as it was. Given its nature and scope and the first part of the existing particulars it is not apparent that this amendment would cause any genuine difficulty to the seventh or eighth defendants. I would allow these amendments.

Paragraph 33

62 This alleges that in compliance with the Third Instruction employees failed or refused to attend work as rostered. The plaintiff seeks to add that this failure was in breach of the respective contracts of employment of those employees. While this may be desirable for clarity and certainty it is my impression that this may well have been sufficiently raised by the existing pleading. Nevertheless, two defendants object that this introduces a fresh allegation which they had not been prepared to meet at this late stage, particularly because of the nature of the particulars to 32. The plaintiff further points out that the pleadings with respect to other Instructions do contain an allegation that the failure to attend for rostered duty was in breach of the employment contract so that the omission of it from 33 was really a slip and its correction does not in truth introduce any novel proposition into the statement of claim.

63 I am persuaded this amendment should be allowed.

Paragraph 36

64 While there was formal objection to these proposed amendments this was not pursued in submissions. There was a contention that the existing reference to Roberts cannot be sustained as there is evidence revealed in discovery that he was elsewhere at the time alleged. That has no relevance, however, to the question of amendment. If, as a matter of fact, that was proved to be the position, the consequence would be that the plea of the plaintiff in this respect would fail. The proposed amendments appear to me to improve the clarity of the case the plaintiff seeks to present in this regard and it is not apparent they could embarrass the defendant. The amendments will be allowed.

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Paragraph 37

65 There was also an objection to these proposed amendments but the issue was not pursued in submission. For the reasons given with respect to 36 I would allow these amendments.

Paragraph 37A

66 The plaintiff seeks to add the fourth defendant, Rozmianiec, to the other defendants named in respect of an allegation which is somewhat similar to that in 32. This is in respect of the "Sixth Instruction". Rozmianiec has not previously been named although another of the fourth defendants is among those who are named in the existing pleading. Hence, the effect is to raise a new cause of action against Rozmianiec. The application is made out of time as stipulated by the Limitation Act. The plaintiff relies on O 21 r 5, cf r 5(2) and (5). Elsewhere in these reasons I have considered the principles which guide the exercise of discretion under these rules.

67 The plaintiff contends that this amendment comes within O 21 r 5(5) as the facts alleged against Rozmianiec are the same as those alleged against the other defendant previously named in the pleading. But this is not a case where the plaintiff seeks to add a new cause of action against an existing defendant on the basis that the new cause of action arises out of the same or substantially the same facts as those already raised against that defendant. In this case it is proposed to raise for the first time a case against an entirely new defendant and to do so out of time. This is outside O 21 r 5(5). In any event, even if there were power, while interlocutory proceedings have involved Rozmianiec giving affidavit evidence which might suggest that he then had some limited recollection, they reveal that even at that time his recollection was indeed limited. It is virtually inevitable that after this lapse of time Rozmianiec's recollection of, and relevant to, the matters now to be raised against him would be adversely affected so as to make it unjust to allow this cause of action to be commenced against him at this stage.

68 Thus, I would not allow the addition of Rozmianiec to 37A. Other amendments are proposed which are without objection and they will be allowed.

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Paragraph 37C

69 Apart from amendments which are proposed to the introductory lines of 37C to which there is no objection and which will be allowed, the point of concern is the plaintiff's proposal to add subparagraphs (e), (f), (g) and (h). It is said that these seek to introduce new issues as to the consequences to the plaintiff of the allegations of failure of employees to attend work as rostered etc. The delay in introducing these matters is said to give rise to real prejudice to the defendants in their preparation.

70 The proposed changes to (e) do not in truth introduce a new issue. They seek essentially to modify the existing allegation that an effect was that the plaintiff breached contractual obligations, to one that the plaintiff was unable to perform those same obligations. While this involves some limited shift of emphasis the essence remains sufficiently the same to make it unlikely that there is any prejudice. None has been demonstrated.

71 While on the face of 37C the proposed subparas (f) and (g) introduce novel issues, these are the same matters which had, until now, been pleaded in particulars (5) and (6) respectively to 38. The proposed (h) is in substance little more than a summary of the effect of all the existing particulars to 38. The plaintiff proposes to delete these particulars from 38, to which there is no objection, so that what is really proposed is a re-ordering of the pleading without change of substance. It has not been shown that any prejudice will flow to the defendants from this.

72 In addition, these additional particulars also more clearly draw in to the allegation a number of existing paragraphs in the statement of claim which were by way of general introduction eg, 2, 2A, 3, 5, 6 and 9. In view of those existing paragraphs and their linkage to loss and damage in 38 it is not apparent that the amendments now proposed to 37C would in truth be productive of embarrassment or difficulty in the preparation and conduct of the cases of the defendants.

73 It is also said there is an embarrassing lack of particularity as to the obligations referred to in subparas (c) and (e) and the services referred to in (f) and (g). This has always existed in the statement of claim but it has not been identified as a problem until now. If it is a real problem appropriate steps are available even at this stage. I would not see this as justifying refusal of this amendment.

74 In the circumstances it appears the amendment may be made without injustice to the defendants and it would enable the case the plaintiff seeks to advance to be identified more readily and clearly. I would allow the

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addition of the proposed subparas (f), (g) and (h) and the amendments proposed to (e).

Paragraph 38

75 Paragraph 38 is an allegation of loss and damage. The plaintiff proposes some stylistic changes which are not the subject of objection and the deletion of the existing particulars to be replaced by a Schedule 5 to the statement of claim. This is the subject of objection by some of the defendants.

76 The rearrangement to transfer the particulars to a schedule is of no significance in itself. What does concern the objecting defendants is part of the proposed content of the schedule. In this respect I am dealing with the revised version of the schedule which was considered in argument and which is dated 27 July 1999. In February 1997 the particulars in the existing pleading were substantially revised and the revision was provided to all defendants at that time. These revised particulars were of the plaintiff's claim for loss of profits or revenue. Those components of the proposed Schedule 5 which deal with this element of the plaintiff's proposed claim are substantially in accordance with the February 1997 revision, although in some respects greater particularity is now provided and there is some further revision of the precise figures. The plaintiff's proposed claim for liquidated damages for loss of revenue is now quantified at $53,326,473. There is no significant objection to those parts of the proposed schedule which relate to the loss of revenue claim.

77 There is now proposed, however, a second and alternative claim. This is advanced as being the amount by which the plaintiff's gross profits were reduced as the result of fixed production costs which continued to be incurred during the strike period for which the plaintiff now would assert it received no return or no adequate return. The plaintiff's proposed claim for liquidated damages for reduced gross profit is quantified at $5,915,954.

78 This second and alternative claim in respect of reduced gross profit introduces substantial novelty into the claim for liquidated damages. There is no claim of this nature in the statement of claim, whether as originally filed or as amended in October 1992, nor is such a claim identified in the February 1997 revision. It was first proposed by this present application in July 1999. In September and October 1999 the plaintiff served memoranda of expert evidence it proposes to call in relation to its claim for damages. This included the substance of the

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expert evidence on which the plaintiff would propose to rely to support its proposed second and alternative claim, ie the claim for reduced gross profit.

79 The plaintiff submits there can be no real prejudice from these proposed amendments particularly as the defendants have had notice of the proposed expert evidence to support this new aspect of claim.

80 When the scope of the existing claim and particulars in 38 are considered it is not the case that the proposed claim in respect of reduced gross profit introduces a new cause of action as was submitted. The facts presently pleaded are sufficient in general terms to support a claim to relief on the basis which the plaintiff now seeks to introduce. Rather, the issue is whether the introduction of this entirely new basis of claim for damages at this stage of the proceedings will be productive of injustice such as to require a rejection of the amendment as a matter of discretion.

81 The claim was commenced in 1992 and has proceeded until July 1999 without any suggestion that the plaintiff alleged it had suffered loss and would seek to be recompensed for it on the basis that its gross profits were reduced because it had to meet ongoing fixed production costs for which it received no return or inadequate return. Until July 1999 the only loss identified was different in kind, being essentially lost profits or revenue. Discovery and interrogatories have proceeded to date on that basis, as has the preparation for trial in respect of damages, including the preparation of expert evidence by the defendants. It is only since July 1999 that the prospect of this alternative and different approach to loss and its quantification has been raised. While it is true that since October 1999 the defendants have had the substance of the proposed expert evidence of the plaintiff's which would support the proposed new basis of claim, that evidence was first known to the defendants some seven years after the claim was instituted. The manner in which the proposed alternative claim for reduced gross profits is particularised suggests there are many areas of fact relevant to it, but not to the existing claim, which could reasonably have been expected to have been the subject of detailed factual enquiry and investigation by the defendants at an early stage of the action and during the discovery and interrogatories had the defendants then been on notice of a claim for reduced gross profits. It has certainly not been shown to me that such necessary preparation can be undertaken satisfactorily at this stage by the defendants so as to be able adequately to meet the plaintiff's case in this new respect.

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82 It is for the plaintiff to satisfy me that this amendment can be made without prejudice to each of the defendants such as would be productive of injustice. The proposed alternative basis on which the plaintiff now seeks to recover damages is so different in kind from that previously identified, and, so far as the materials before me can be assessed on an interlocutory application they appear to involve such different factual issues, that I am not persuaded that the plaintiff's application to include in the proposed Schedule 5 particulars of its proposed alternative claim for reduced gross profits should be allowed.

83 Otherwise, the proposed Schedule 5 may stand as part of the statement of claim as proposed and 38 itself may be amended as proposed.

Paragraph 39

84 There is an objection to a proposed change of heading from "Picketing" to "Picketing: Interference With Contracts of Employment". This proposed change is a precursor to proposed amendments, in particular to 41, to which the heading also applies. For reasons which will appear when I deal with 41 I am not persuaded that the amended proposed to the heading should be allowed.

85 Turning to 39 itself some changes are proposed to the pleading which are partly stylistic. To the extent that they go no further than style the amendments proposed clarify the plaintiff's case and no prejudice to the defendants from them is apparent. They will be allowed. So too, with a number of amendments proposed to the particulars. Objection is taken, however, in respect of the following proposed changes to the particulars:

A. The proposed particulars 1(c) and (e) of obstruction at Tom Price are entirely new. They would allege that on 20 June 1992 two identified commercial vehicles were turned back from the plaintiff's premises by picketers and on 25 or 26 June a third. The existing particulars allege that two other identified commercial vehicles were turned back on 21 June 1992, however the plaintiff now seeks to amend that allegation to remove reference to one of those two vehicles. The proposed amendments would identify three new vehicles, different from those previously alleged, each of which was turned back on other than the one day previously alleged. The plaintiff submits that the existing allegations in 49 ought to have led to the defendants' solicitors investigating and securing proofs of evidence from all their potential witnesses as to events at the alleged picket lines on all days. Hence, it is

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submitted the defendants should not be embarrassed at meeting these new particular factual allegations. The existing 39(a) alleged "a continuous obstruction and interference with the movement of persons and vehicles to and from the plaintiff's premises" from 20 June 1992. In the face of such an allegation it would be surprising indeed had the solicitors for the various defendants confined themselves to the one particular then given of two commercial vehicles turned back on 21 June 1992. These proposed particulars, in part, arise from information revealed by discovery. They were not proposed as soon as the information became known to the plaintiff's solicitors, so that there has been delay by the plaintiff. Given the scope of the principal allegation and the investigation which that allegation ought to have warranted, I am not persuaded that there should be embarrassment or difficulty in their defence of any real significance to those defendants that are affected by this allegation. Nor is there reason to think that any difficulty a defendant may now experience with its preparation to meet the proposed particulars would be more difficult in any significant way than was the position when the relevant discovery was completed. While there was some affidavit evidence offered in support of such a proposition it has in my assessment fallen short of doing so. It is also raised that there is a discovered document of the plaintiff which contradicts each of these allegations. While that appears to be borne out, in part at least, that is hardly a justification in itself for refusing leave. Acknowledging there are such documents, the plaintiff's case is that, nevertheless, it has evidence to support the allegation. The amendments proposed to particulars 1(c) and (e) of obstruction at Tom Price will be allowed.

B. The proposed particular (d) in respect of Dampier would allege that on 25 June 1992 picketers beat violently on a vehicle carrying an employee and shouted abuse at the employee. The primary allegation includes the pleading that picketers "threatened or intimidated by words and gestures persons approaching and leaving …" the plaintiff's premises. Having regard also to this pleading, for reasons essentially the same as those in A above, I would allow this amendment.

C. The proposed particular (a) in respect of Paraburdoo alleges in virtually the same terms two incidents of the kind considered in B. For similar reasons this proposed amendment will be allowed.

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D. The proposed particular 3(a) of intimidation at Dampier is also in similar terms to that considered at B above. I have indicated the scope of the primary allegation in the existing pleading to which the particulars of intimidation also relate. Existing particulars of intimidation at Tom Price are similar to that which is now proposed in respect of Dampier. Essentially for the reasons given in respect of B this will be allowed.

E. In respect of the proposed particular 3(i) and other proposed particulars re intimidation it is also complained that the allegation is not specific as it raises conduct of unspecified members of the group which have not been connected specifically, and therefore cannot reasonably be so connected by the defendants, with any particular defendants. For this reason an amendment of this type is said to be too imprecise and too late for the defendants to be able now to deal adequately with it by way of defence. This line of submission overlooks the nature of the primary case the plaintiff has pleaded and seeks to make out by 39, and also fails to give due weight to the nature of the conduct alleged, ie conduct by a group involving persons said to be from various of the defendant unions acting together. Of necessity, in such circumstances the plaintiff may not be able to identify particular individuals in its evidence. While that may explain the lack of precise identification and justify the acceptance of particulars in the form proposed, it must not be overlooked that these circumstances may merely foreshadow problems for the plaintiff in making good some of its primary allegations against particular defendants if the evidence available to the plaintiff is not more precise than the proposed particulars suggest. These objections are not sufficient, however, to warrant refusing the amendments proposed with respect to intimidation.

F. The proposed particular 3(b) of intimidation at Dampier would allege that the picketers displayed signs. It is similar to particulars in the existing pleading re Tom Price and Paraburdoo. They relate to 39(3). For reasoning substantially as in D, I would allow this amendment.

G. The proposed 3(a) of intimidation at Dampier is essentially in the form of that considered in D and for reasons given there it will be allowed.

H. The proposed particular 4(a) of Watching and Besetting at Dampier is in support of the primary allegation in 39(4) that picketers "watched and beset the plaintiff's premises with a view

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to compelling the plaintiff to cease carrying on its local business …". What is proposed is the introduction of a novel particular. It differs materially from any existing particular of watching and besetting. It seeks to raise an occasion when vehicles carrying employees were followed from the plaintiff's Dampier premises to Karratha by vehicles carrying picketers. While judgment in matters of this nature is not easy, I am in the end not persuaded in the circumstances that the nature of the primary allegation and the existing particulars would have led to those dealing with the existing statement of claim for the defendants anticipating and examining the possibility that conduct away from Dampier of the nature now proposed to be introduced might prove relevant in the action so as to cause enquiries to be pursued about conduct of this nature in the course to date of the preparation of the defence cases. Without sufficient reason previously to consider conduct of this nature it is my view that it would not be just to permit the introduction of such a particular at this late stage.

I. The proposed particular 4(c) of watching and besetting at Paraburdoo would allege that picketers photographed etc persons attempting to gain access to the plaintiff's premises. As with G this would introduce novelty into the particulars. There is no such or similar particular in the existing pleading and it is not apparent or likely that the preparation of the defendants' cases to date would reasonably have extended to the examination of such an issue. Further, it is objected that the proposed particular would not support the primary allegation and is irrelevant. The plaintiff submits in response that the conduct is viewed in its context and could be seen to be an element of intimidation. The watching and besetting must amount to a nuisance at common law; Re Van der Lubbe [1949] SRNSW 309. This may be so if it causes persons to hesitate or to proceed with fear for their safety; Dollar Sweets Pty Ltd v Federated Confectionary Association of Australia [1986] VR 383, or if the purpose is to compel someone on, or intending to come on, the premises to act against his or her will; J Lyons & Sons v Wilkins [1899] 1 Ch 255. It is at least faintly arguable that to photograph those seeking to enter or leave the premises may be enough to cause them to hesitate about proceeding for the reason that they might be concerned for harm eventuating to themselves by some use of the photographs, even though they might not then be able to foresee what use might occur. I will not, therefore, reject the proposed amendments on this further basis of objection.

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That leaves, however, the matter first discussed. For reasons similar to the reasoning in G, I would not allow this amendment.

J. The proposed amendment of the general particulars with respect to inducement meets with objection. First, the proposed words are said to be confusing and to be broadening the scope of the existing pleading, and to do so after much delay, whereas the plaintiff says the amendments are designed to give greater precision. In submissions it was put for the plaintiff that the phrase "inconsequence of" was intended in the sense of "by virtue of". In my view, "by virtue of" conveys the intended meaning more clearly. So understood, the proposed amendment does appear to clarify the existing pleading without broadening its scope. The second objection repeats the issue considered earlier in these reasons with respect to 17 - 20, ie the word "representatives". As the proposed amendment to the particulars would expressly refer back to the capacities relied on in 17 - 20, the phrase in the particulars should reflect the capacities identified in those paragraphs.

Subject to

(a) the phrase "by virtue of" being substituted for the proposed "inconsequence of"; and

(b) the phrase "employees, officers or agents" being substituted for the proposed "officers, agents or representatives",

in the proposed amendment, it will be allowed.


K. The proposed particulars (f), (g) and (h) of the inducement at Tom Price would introduce three similar allegations that the fourth defendant Llewellyn privately counselled and encouraged identified employees "to join the strike action".

Such particulars would appear to be outside the scope of the primary allegation as it alleges counselling to join the strike action, whereas the allegation is that of counselling to engage in obstruction, trespass, intimidation, watching and besetting. The strike action appears to be something quite distinct from the picketing and the conduct alleged against the picketers. An employee of the plaintiff may have joined the strike action but not have become involved in picketing, etc. Hence, these proposed particulars do not appear to support the primary allegation in 39.

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Further, there is no other particular of this nature in the existing pleading. It would introduce novelty.

For reasons similar to those already identified in respect of earlier particulars which would introduce novelty the introduction of such a new and different type of particular so many years after the event is to be expected to involve unfairness to the defendants, especially Llewellyn and his union the third defendant, particularly because it could not reasonably be expected that the preparation of their defences to this point would have involved consideration of the factual allegations which the plaintiff now wishes to raise. Further it would be unreasonable to expect that Llewellyn would now have an adequate, if any, detailed recollection relevant to such a specific allegation. I am conscious of the plaintiff's submission that Llewellyn's affidavit may be seen to fall short of a specific denial that he has any recollection of or relating to the three particulars which the plaintiff now seeks to introduce. But that is to reverse the onus, as the plaintiff must demonstrate both the justification for allowing the amendment and that it will not involve injustice. Here the nature of the allegation and the time that has lapsed are sufficient to give rise to the view that a detailed recollection of incidents of this nature would be likely to be adversely affected because of lapse of time. That has not been displaced by the material placed before me. I would not allow the proposed particulars (f), (g) and (h) of the inducement at Tom Price.

L. The existing particular (d) of inducement at Dampier is that the flag of the seventh defendant was displayed at the picket line. The plaintiff seeks to add an allegation that the flag of the first defendant was also displayed. It is objected that the first defendant could not be expected to adequately prepare a defence at this stage to such an allegation. While this may be quite a border line case, the nature of the general allegations in 39 in the existing allegation regarding the seventh defendant may be reasonably expected to have led to investigation by those advising the defendants of the factual question whether flags were flown at the picket lines and if so what flags and by whom. I am persuaded that injustice to defendants should not be anticipated from this proposed amendment. It is also objected that the first defendant doesn't have a flag and that the displaying of a flag could not be an inducement. The first of these is a factual question to be dealt with according to the evidence led at trial. The second seems to

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have overlooked the meaning given to inducement in the primary allegation in 39(v). I would allow the proposed particular.

Paragraph 41, 41A and 42

86 The existing 41 alleges that by virtue of the facts pleaded in 39 the defendants

• procured persons to breach contracts for the supply of goods and materials or services to the plaintiffs,

• disrupted the plaintiff's business,

• prevented the performance by the plaintiff of various of its contractual obligations, and

• wrongfully interfered with the business and economic relations of the plaintiff.

The plaintiff now seeks to replace these allegations with one that by virtue of the facts pleaded in 39 the defendants caused, procured or induced employees of the plaintiff to breach their contracts of employment by not attending work as rostered and not performing their work as directed. In these respects the amended pleading would expressly refer back to 28, 30, 33, 35, 37 and 37B. The effect of this proposed amendment would be to allege that the picketing etc alleged in 39 was also a cause of the plaintiff's employees breaching their contracts of employment.

87 Paragraphs 28, 30, 33, 35, 37 and 37B raise various Instructions or directions by various of the defendants to employees of the plaintiff by reason of which it is alleged that employees did not work as directed or refused to attend works as rostered. The proposed 41 would have the effect of repeating all of those allegations but adding, as a cause of the alleged breaches by the employees, the picketing, etc alleged in 39.

88 41A is an allegation of the consequences and is a virtual duplication of the existing 37C except, of course, that 41A would relate in addition to the allegations in 39 and 41. 42 is an allegation of loss and damage. It is in turn a repetition of the existing 38 except that it, too, brings in the allegations in 39 - 41A.

89 In short, what the plaintiff seeks to achieve is the introduction of an entirely new allegation that by the picketing, etc which had been alleged in 39 the defendants interfered with the contracts of employment of the plaintiffs and its employees. The allegations of picketing, etc in 39 would continue quite separately also to support allegations of interference with

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commercial contracts and the conduct of the plaintiff's business much as is presently alleged in 41, although these would now be repositioned as 42A - 42C and grouped under a proposed new heading Picketing: Nuisance and Trespass, to precede 42A.

90 It is a nice question whether, as is submitted, these amendments to allege interference with the contracts of employment by the picketing, etc would introduce a new cause of action. It is unnecessary to delay to consider this question, however, as in my view the following matters tell determinatively against allowing this amendment whether or not it introduces a new cause of action.

91 While there is obvious overlap with existing factual allegations, the proposed amendment would introduce significant new factual issues into the proceedings, in particular whether the various matters grouped under the general description of picketing alleged in 39 were the, or a, cause of breaches of contracts of employment by employees by not attending work as rostered or not performing duties as directed, and if so, whether and to what extent the picketing, etc led to the loss and damage alleged. These issues of causation and loss and damage raise questions quite different from any existing allegation although in some respects facts relevant to those issues will also have a relevance to issues raised by the existing pleadings. It remains the case, however, that in the proposed pleading they clearly give rise to new, different and significant issues. Further, rather than clarifying or improving the existing statement of claim, the proposed 41, 41A and 42 give rise to some confusion because of the substantial overlap of allegations with 28 - 37C.

92 Once the real force and effect of these proposed amendments is identified, it can be seen that it is not a case of restructuring the statement of claim to clarify the existing pleadings, but what is proposed would introduce a significant new allegation. The nature, significance and complexity of the factual issues which it would introduce into the proceedings at this stage are such that it cannot be accepted from what is presently before me that an amendment of this nature could be accommodated by the defendants without significant disruption to their preparation, and without giving rise to deficiencies in the preparation of the defendants for trial which would be both seriously embarrassing to their defence and unlikely to be able to be adequately remedied after this length of time.

93 Nothing has been advanced which would suggest that discovery has revealed this additional possible basis on which the plaintiff's claim might

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be advanced. It appears to be no more a fresh appreciation of the possible forms the plaintiff's case might take. There is nothing before me to indicate why it has taken until now to raise this allegation as the plaintiff appears to have had the matters on which it is based within its knowledge from the inception of the action.

94 It is my assessment that the effect of allowing such amendments at this stage would be productive of injustice which the defendants which could not effectively overcome and which could not be alleviated by consequential orders. I am not persuaded that the amendments proposed in the minute with respect to 41, 41A and 42 should be allowed.

Paragraph 40, 42A, 42B and 42C

95 The plaintiff's minute proposed the transfer of the substance of the existing 40, 41 and 42 to become respectively 42A, 42B and 42C with a new heading before 42A, "Picketing: Nuisance and Trespass". This is to enable the insertion of the proposed additional claim which I have just considered and not allowed. This re-arrangement would have left 40 as an unused paragraph. The rejection of the proposed amendments to 41, 41A and 42 removes the need to transfer the nuisance and trespass allegations to become 42A, 42B and 42C. The numbering of the allegations can remain as it is.

96 The plaintiff, however, also proposes amendments to the terms of the existing 40, 41 and 42, in terms to be found in the minute as the proposed 42A, 42B and 42C respectively. The changes to 40, as in the proposed 42A, are of no substance and will be allowed. The changes to 41, as in the proposed 42B, have met with some objection. As a matter of drafting the proposed 42B(a) and (b) draw in allegations that were to be found in the proposed 41A(a) - (g). These would now need to be set out directly in 41. While the proposed subparagraphs (a) - (h) look to be novel, on analysis they appear to be a detailed filling out of the existing subpara 41(b), with perhaps some overlap with the existing 41(c) and (e). While the balance of the proposed subparagraphs (d) - (h) are different in some aspects of their precise expression, on analysis they do not go outside the reach of the existing par 41. Thus it is not apparent that the proposed form of 41(a) - (h) (as presently set out in the proposed 41A) goes outside the fair reach of the existing 41, although what is proposed has the advantage of greater detail and therefore certainty; indeed it serves to limit the generality of the existing pleading. As indicated, however, there is need for some adjustment to the wording of 41 (as presently set out in what was proposed as 42B).

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97 Subject to the plaintiff bringing in and serving a clean minute of the proposed form of 41 which satisfactorily reflects what I have discussed in these reasons, I would be prepared to allow 41 to be amended to reflect the substance of the proposed 42B.

98 The existing 42 is an allegation of loss and damage. It is confined to the allegations of nuisance and trespass. By contrast the proposed 42C would have expanded the allegations of loss and damage to bring in "1 - 23, 39, 41, 42A and 42B". In substantial part this duplicates 38 and in so far as it would have brought in the new allegations in the proposed 41, 42A and 42B, that is now unnecessary. The plaintiff also proposed some minor amendments which improved the pleading, but did not give rise to questions of substance. The particulars of damage proposed are those which are now Sch 5.

99 Subject to bringing in and service of a clean minute to reflect satisfactorily the observations in these reasons, there will be leave to amend 42.

Paragraphs 42D - 42V

100 The plaintiff proposes to introduce an entirely new group of provisions to be numbered 42D to 42V under a proposed new heading "Indirect Interference By Unlawful Means With Contractual Relations".

101 In very brief terms the proposed 42D alleges knowledge by the defendants of an extensive variety of detailed aspects of the plaintiff's business and contractual activities and their implications. While to some degree these matters reflect allegations in the existing 23, in other respects they raise new matters. The proposed 42E alleges the conduct in 27 - 37B and 39 interfered with the plaintiff's contractual relations in respect of long term supply contracts, third party contracts and the service contract. In so far as this relates to 39, this in part reflects existing allegations in 41(c) and 41(d), although in that context, as will be discussed later, the allegation was limited to direct interference which would introduce new issues of causation. Further and different factual issues would arise from its proposed extension to indirect interference. The proposed particulars to 42E would also repeat by reference allegations in 37C(d), (e), (f) and (g). Once again these present allegations are in the context of direct interference. The proposed amendment would raise them in the different factual context of indirect interference. The proposed 42F alleges the conduct in 22 - 37B and 39 to be an offence against the Government Agreements Act. This is now proposed as an allegation of unlawfulness to

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support a case of indirect interference by unlawful means. The substance of the unlawfulness alleged is, however, that which had been raised in the existing pleading in 47. There, however, it was in support of a bare claim for breach of statutory duty. While the existing claim is of an allegation of hindering execution of the Hamersley Iron Act and did not go on specifically to refer to the Government Agreements Act, that is a legal consequence rather than an allegation of fact. In any event the provisions of the Government Agreements Act appear to have been directly contemplated in 47 which refers to hindering, preventing or obstructing the Hamersley Iron Act. Those allegations reflect the terms of s 4(2) of the Government Agreements Act. Essentially, therefore, the facts raised by the existing 47 are relied on in support of the element of unlawfulness so that the defendant should not be embarrassed in their defence by the proposed 42F. The proposed 42G and 42H relate to Beales and these have been discussed earlier; see 24 - 26.

102 The existing 48-53 allege breaches of s 96B of the Industrial Relations Act. The proposed 42I - 42T also allege breaches of 96B although more offences in a greater variety of circumstances. In the case of 42T a number of offences are alleged although by virtue of identified conduct by selectively identified defendants. Many of these allegations, however, may fairly be seen to depend on or arise out of much the same facts which had been raised by the existing 48 - 53. 42B would allege, however, that conduct of defendants "threatened that the free and lawful exercise by the Plaintiff of the business would or might be interfered with". This is a new allegation and is made to provide a foundation for the entirely new allegation in 42S that by reason of facts pleaded in 42G, 42H and 42R each defendant committed an offence against the then s 96F(1)(a)(ii) of the Industrial Relations Act (see now s 96E(1)(b)). While these allegations relate to Beales and substantially arise out of conduct which is already relied on in 42R and 42S the introduction of the question whether by the conduct each defendant threatened the plaintiff does bring with it an entirely new focus and with it new factual issues not previously in issue and for which the defendants could not have been expected to prepare given the existing allegations. It has not been shown they could do so adequately at this late stage.

103 The proposed 42T is complex in the alternatives it contemplates. At heart reliance is placed on facts presently raised as overt acts of conspiracy by 43. This is a conspiracy to injure the plaintiff by causing employees to breach contracts of employment. 42T would rely on those acts to establish against various groupings of the defendants that they incited etc the plaintiff to dismiss Beales because he was not a union

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member. This requires the existing factual allegations to be considered in an entirely new light giving rise to new factual issues outside the scope of those previously alleged, and which the defendants cannot be expected to have pursued in their preparation to date. It has not been shown they could do so adequately at this stage.

104 Section 42U is really a bringing together by way of a summary of how the alleged interference was effected by unlawful means. Section 42V is pleading loss and damage.

105 The existing statement of claim was clearly intended to raise, and has been understood by all parties as raising, a case of direct interference with contractual relations relying on the "Instructions" (23 - 32B) and the picketing, etc giving rise to nuisance and trespass (39 - 41). The statement of claim was also intended and understood by all to raise conspiracy to injure the plaintiff (43 - 45), interference by unlawful means with economic relations by causing employees to breach their contracts of employment and by causing the plaintiff to breach long term supply contracts (46), intentional interference with trade or commerce (29 - 37C, 39, the overt acts in 43 and 46A - 46F), and breaches of statutory duty (47 - 53). Each of these was pleaded out separately and the factual basis on which the plaintiff relied for each was specifically and separately identified. While there may be questions as to the adequacy of each of these pleas, which some of the proposed amendments are directed to overcoming, in my view the statement of claim was adequate to put the defendants on notice that the nature of the case they should prepare to answer was one in which the plaintiff sought relief on these bases, and no others. In particular, where the plaintiff sought to rely on matters of fact alleged in one context, eg, as overt acts of conspiracy, in another context as well, the pleading specifically said so. This is not to overlook that pleadings are to raise the facts upon which the plaintiff relies rather than to raise a form of action, but the deliberate and clear manner in which this pleading was framed was one which meticulously segregated the plaintiff's case according to the various forms of action on which the plaintiff intended to rely.

106 So it is that since 1992 the parties have conducted their preparation for trial, including extremely extensive discovery and interrogatories, on the basis outlined above. In particular, extensive and protracted hearings as to the adequacy of pleadings and particulars and to resolve disputes as to matters of discovery have been conducted on this basis. The parties have readied themselves for trial to the extent that this has now occurred on this basis.

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107 As indicated the statement of claim was intended to and sufficiently raised a case of direct interference with contractual relations. The tort of interference with contractual relations may be committed in two ways; these are usually described as direct and indirect interference. The elements necessary to establish each of these respectively are considered in Fleming, "The Law of Torts", 9th ed, especially at 756 - 761. The core of the distinction between direct and indirect interference is summarised at 758 as:

"Liability will attach if the intervenor, with knowledge of the contract and intent to prevent or hinder its performance, either (1) persuades, induces or procures one of the contracting parties not to perform his obligations, or (2) commits some act, wrongful in itself, to prevent such performance. The first is usually described as 'direct', the second as 'indirect' interference … "

As is said at 760, the hallmark of indirect interference is that the means employed must be independently unlawful (a tortious wrong is sufficient to constitute unlawfulness in this context).

108 The existing statement of claim was not framed in a way which raised, or which should reasonably have put the defendants on notice that they would be called on to defend, a claim founded in an allegation of an indirect interference with contractual relations by unlawful means. Necessarily this was so because there was no allegation of unlawfulness. Further, the nature of the conduct relied on and the way in which the pleading was framed suggested direct rather than indirect interference. The plaintiff now contends that the existing 37C and 41, in part, may be construed as adequately raising indirect as well as direct interference, although it is accepted that this might only be so after "close analysis" of what is alleged. Even so the plaintiff now seeks to "make it clear" that indirect as well as direct interference is alleged and to expand the basis on which indirect interference is alleged. It remains the case, however, that until this application the plaintiff had never suggested that indirect interference was also intended by 37C and 41 and no allegation of unlawful means had been pleaded.

109 The plaintiff now seeks to introduce for the first time, and outside the limitation period, a claim of indirect interference by unlawful means. The proposed 42D - 42V would raise this claim.

110 The parties differ as to whether these proposed amendments introduce a new cause of action. I prefer the view that they would do so,

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even though the limitation period had expired before application was made. I accept that the same tort is relied on - interference with contractual relations. But it is not a satisfactory answer for the plaintiff to contend as it does, that because this is the same tort the proposed amendments do not introduce a new cause of action. The existing pleading asserts what may be accepted for present purposes to be facts which would, if established, entitle the plaintiff to relief on the basis of direct interference, but not for relief on the basis of indirect interference by unlawful means. The difference is no mere technical deficiency or a mere omission to have pleaded some material fact. The present pleading did not seek to set up the tort on the basis of an indirect interference by unlawful means. The plaintiff does not seek to contend, as I understand its submissions, that it did. The differences between the facts necessary to ground relief for direct and indirect interference are material and, in the present case at least, they are substantial. They cannot be said to involve substantially the same facts; see Dye v Griffin Coal Mining Co Pty Ltd (supra) at 432, 436.

111 The plaintiff also submits that to a substantial degree the matters on which it seeks to rely in the proposed 42D - 42V are already raised in other contexts in the existing pleading. As I have indicated, in a number of respects this is so. To that extent the defendants would not now be embarrassed by the need to explore at this stage new factual issues. Assuming that, despite the meticulous segregation of the matters relied on to found each of the distinctly framed claims in the existing statement of claim, facts relied on for any purpose in the present pleading may be considered to determine whether the proposed new cause of action arises out of the same or substantially the same facts as those presently pleaded, in my view the proposed claim of indirect interference by unlawful means introduces many other allegations of significance which are not raised by the present statement of claim for any purpose, or are raised in such a different context as to have a different character, or to involve different factual considerations. The nature and degree of these new or different factual allegations is such that the proposed claim of indirect interference by unlawful means cannot be viewed to be one which arises out of substantially the same facts as any or all of the matters of fact relied on in the existing statement of claim.

112 The nearest the present pleading comes to raising a factual situation which would found a claim for indirect interference by unlawful means is the existing 39, 40 and 41(c) and (d). This is because they involve allegations of nuisance and trespass, which is conduct which would satisfy the requirement of unlawfulness. As I have indicated, until now these

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have not been understood to also include indirect interference by unlawful means and all preparation until now has proceeded accordingly. It would not be just or reasonable at this stage to allow amendment to those paragraphs to formulate a claim for relief for indirect interference with contractual relations by the unlawful means of trespass and nuisance, even were it the case that in this limited respect there would not be a new cause of action.

113 For these reasons I would refuse leave to introduce the claim which the plaintiff now seeks to pursue of indirect interference by unlawful means with contractual relations.

114 Should I be wrong in the view that the proposed 42D - 42V would introduce a new cause of action, I would, nevertheless, not be persuaded as a matter of discretion that leave should be granted at this stage of this action to amend the statement of claim in this way.

115 It would, in my view, be unjust to the defendants at this relatively advanced stage of preparation for such a substantial trial to allow the extension in the ways proposed to the existing bases on which relief was sought. While in a number of respects the proposed extension relies on matters previously pleaded, even in these respects the extension would often rely on those matters for a different purpose or would view them in a different light so as to fairly require considerable factual re-evaluation and investigation by the defendants and in some cases further interlocutory steps or even proceedings. Further, there are matters of some significance which the plaintiff seeks to raise for the first time. Many of these would be likely to require factual re-evaluation and investigation as well as interlocutory measures. The effect of this can be expected to lead to even further and not insignificant delay in reaching the trial. To the extent that new factual issues arise or old issues are presented in a different light or for a different purpose, the lapse of time since the relevant events can only be likely to make it extremely difficult, if not impossible at this stage, to undertake satisfactory investigation of issues or to obtain adequate proofs or instructions.

116 All of these matters are to be weighed against the wish of the plaintiff to extend the basis of its claim in this way so as to be able to contend that it is entitled to relief on this extended basis. It is to be remembered, however, that in virtually every respect the amendments to the statement of claim now sought in this respect are not shown by the plaintiff to be the product of some newly discovered factual or other material. Rather it is merely the product of a re-evaluation of the

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plaintiff's prospects and strategy in the action. In other words, the plaintiff should and could have pleaded in the way now proposed in 1992. No adequate reason is provided for the delay of over six years in seeking to make the extensive amendments now sought by 42D - 42V and the defendants have been allowed to proceed over the intervening years at considerable effort, expense and inconvenience in preparation for trial without notice that changes of this nature were contemplated. For over seven years now the defendants, especially the individual defendants, have had to bear the ever present strain and uncertainty which is inevitable when litigation as threatening as this is hanging over their heads.

117 This is a case where it is the plaintiff seeking to extend the scope of its claims in this long-standing litigation at a relatively late stage. Both justice as between the parties and the public interest in the due disposition of litigation tend to weigh heavily against allowing an amendment of this nature at this stage. It is to be remembered that this is a situation in which it is the plaintiff which seeks to extend the scope of its claim and to do so for no particular reason which turns on some recent development, rather than a situation where a defendant wishes to raise a further matter by way of defence as was under consideration in Queensland v J L Holdings Pty Ltd (supra).

118 The plaintiff has not demonstrated any adequate justification for it to be allowed to amend its statement for claim in the way now proposed in 42D - 42V, given that the amendment would extend the time before this action could be tried and would expand the issues to be dealt with in the trial and would involve significant embarrassment effort and expense to the defendants in the preparation of their defences.

119 I am not persuaded I should exercise my discretion to allow the amendments to 42D - 42V as now proposed, even if to do so would not introduce a new cause of action.

Paragraph 43

120 This is the first of the paragraphs which states the plaintiff's case grounded in conspiracy. No objection is made to a number of proposed amendments and they will be allowed. The proposal to add the word "agents" in 43 in what is proposed to be sub-para (a) is the subject of objection. This amendment merely seeks to maintain consistency with earlier allegations in the statement of claim and there is no apparent reason for it to embarrass the defendants. It will be allowed.

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121 There is also a more significant objection to the proposed sub-paragraphs (e) - (h). The present allegation is of a conspiracy between the defendants and each of the picketers at the various sites and, further or alternatively, each of the employees who breached his contract of employment. The proposed sub-paragraphs (e) - (h) would delete one category of conspirators - the employees - and to be more specific but also more comprehensive as to the possible combinations of the defendants and picketers. They do not introduce new conspirators, merely additional specific combinations of existing conspirators. The defendants objected that the plaintiff should plead out the particular facts on which each alternative claim is based; Kenny v Sholl (1905) 7 WALR 197, 203. There is no denying the general principle but it would be artificial to seek to apply it in the present situation where the alternatives are intended merely to identify the possible alternative combinations of the identified conspirators and where, as is often the case, the plaintiffs lack direct evidence of the making of the conspiratorial agreement and relies for proof of its existence on inference from the overt acts which are alleged; cf Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Company Ltd (No 4) [1985] 1 Qd R 127, 133. I would allow these amendments.

Paragraph 43A

122 The existing pleading sets out the overt acts relied on to prove the conspiracy which is alleged by 43. It does not plead a new cause of action as is submitted by the defendants. Objection is made to the addition of a number of fresh overt acts to the many alleged in the existing pleading. Objection is made on this basis to the proposed subparas (m), (p), (r), (z), (aa), (jj), (kk), (ll), (mm), (nn) and (oo). It can be said of these generally that, in each case, the subpara would allege specific conduct by identified defendants, and in some cases associates of defendants, which conduct is alleged to have occurred during the strike and apparently directly connected with the strike. In each case the conduct is new to the pleading and generally the allegations are based on documents discovered by the defendants. For this reason it is the position that the amendment could have been proposed at an earlier time though, of course, not until after the relevant inspection, so that there is reason why the allegation was not made at the commencement of the action or reasonably promptly after the action was instituted.

123 While the allegations are new they appear in each case to involve conduct of defendants, with or without associates, in what can be

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described as alleged mainstream union activities during the strike. As such it would be reasonable to expect that the process of instructing solicitors in their investigation of the conduct of their clients and associates and other defendants during the days of the strike would have included conduct of the type now proposed to be alleged. This is especially so where the conduct is referred to in documents held by defendants, although of course the solicitors for a defendant would not normally have access to the documents of unconnected defendants. No particular reason appears for thinking, and there is no specific evidence which satisfies me, that any of these amendments would be productive of special difficulty.

124 It is objected that the proposed subpara (r) is one of evidence, not fact. It alleges a meeting of some defendants and a resolution adopted by the meeting. This appears to be a sufficient allegation of fact. It is objected that the proposed subpara (z) fails to plead the purport of the conversation alleged; O 28 r 8(2). But the purport is required to be pleaded "if material". As I understand this allegation, it is the fact of the alleged telephone conversation and its alleged general topic, not the purport of the precise matters discussed, on which reliance is based. It is objected that (jj) and (kk) plead only evidence. Each though appear to be arguably adequate as raising overt acts. It is objected inter alia that (mm) does not allege an actionable wrong. Once again as an allegation of an overt act it need not do so. A similar objection, among others, is made to (nn). It is also said inter alia that it does not raise an element of the tort of conspiracy or a matter of fact on which the cause of action depends. In these respects the objection fails to appreciate that the proposed pleading alleges merely an overt act. The other detailed objections are met by the general observations made earlier.

125 There is also objection to the amendments proposed to the last unnumbered paragraph of 43A, except for the word "Award". These amendments that are proposed appear to me to spell out in greater detail the existing pleading but they do not in my appreciation introduce any substantial difference. The greater detail and particularity does provide greater certainty. There is, however, a need to correct the proposed references to 41 and 41A in view of the decisions earlier in these reasons which affect those paragraphs. It may be necessary to include the allegations in 43A itself.

126 Subject to the bringing in and service of a satisfactory minute to reflect these reasons I would allow these amendments.

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Paragraph 43B

127 This is an entirely new pleading. It seeks to assert specifically, with particulars, that the conspiracy alleged in 43 was effected by unlawful means. To be an actionable tort a conspiracy must either be for an unlawful purpose, or, an agreement together with its execution to pursue an otherwise lawful object by unlawful means. The existing allegation in 43 appears to straddle both of these. It expressly alleged an unlawful purpose viz to injure the plaintiff. It also appeared to raise unlawful means, ie causing employees to breach contracts of employment and nuisance and trespass. Thus the proposed 43B, by expressly and distinctly alleging the conspiracy was effected by unlawful means, would make clearer that both limbs of an actionable conspiracy are relied on, although this was the probable effect of the existing pleading. I would not accept, therefore, the objection that the whole of the proposed 43B should be disallowed.

128 The proposed subparas (a), (b) and (c) reassert the effect of the existing allegations, although both (b) and (c) seek to refer to 42A rather than 39, and (a) refers to 41 which reference requires correction. The proposed subparas (d), (e) and (f), however, seek to introduce for the first time into the conspiracy allegation, new facts by reference to the proposed 46A - 46F (which plead out a case of the tort of intentional unlawful interference with trade or commerce) and also to the allegations in the disallowed 42F and 42G - 42T. In these respects the proposed 43B goes beyond what has been alleged to this time. The considerations which these proposals entail are quite analogous to those which are dealt with at length with respect to the proposed 42D - 42V. While the analogy is not exact or complete it is sufficiently close for me to adopt, without repeating what I have said earlier in these reasons with respect to the amendments proposed to 42D - 42V save to note that it is less clear the proposed 43B(d), (e) and (f) introduce a new cause of action. If they do not, what has been said on that hypothesis re 42D - 42V is nevertheless apposite.

129 For essentially the reasons there given I would allow only the amendments proposed to be 43B(a), (b) and (c). It will be necessary to bring in and serve a satisfactory minute.

Paragraph 43C

130 While objection was made to this it was really on the basis that it was consequential and should not be allowed if the amendments proposed to 43, 43A and 43B were not allowed. That is not the case and some such

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allegation appears useful as a matter of clarification. The proposed 43C, however, adopted by reference subparagraphs in the proposed 41A. That will now require correction and a minute should be brought in and served to reflect what has occurred. Subject to a satisfactory amendment the inclusion of 43C will be allowed.

Paragraph 44

131 Amendment was proposed to this allegation of loss and damage which was objected to on a basis which was related to the plaintiff's proposed alternative claim for damages in Schedule 5. As the inclusion of that alternative claim in Schedule 5 has not been allowed, see the discussion re Paragraph 38, the basis for objection falls away. Paragraph 44 may be amended as proposed.

Paragraphs 45, 45A, 45B and 45C

132 The existing 45 alleges an alternative conspiracy but only between the first and second defendants, which otherwise is in substance the same in its terms and purpose and, with some omissions, involving the same overt acts as the conspiracy alleged in 43.

133 The existing 45A, 45B and 45C are to the same effect but allege respectively conspiracies between the third and fourth, fifth and sixth and seventh and eighth defendants.

134 Amendments are proposed to insert 45(c), 45A(c), 45B(c) and 45C(c) which are the same as those dealt with in 43B. For the reasons given in respect of 43B amendment to insert the proposed 45(c)(i)(ii) and (iii) but not (iv), (v) or (vi) will be allowed. The equivalent amendments will also be allowed in 45A, 45B and 45C.

135 It is also proposed to amend each of these paragraphs by inserting a subpara (d) which is in the terms of the proposed 45C. For the reasons given in respect of 43C, and subject to the bringing in and service of a satisfactory minute, amendment will be allowed on the same basis as has been indicated with respect to 43C for each of the proposed 45(d), 45A(d), 45B(d) and 45C(d).

Paragraph 46

136 Two defendants flagged an objection to the plaintiff's proposal to delete this paragraph but no reason or submissions were advanced. No

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other defendants object. The existing paragraph raised a distinct allegation of interference by unlawful means with business operations and economic relations. Deletion cannot harm the defendants. It may be deleted.

Paragraphs 46A - 46F

137 These together are proposed as a new formulation of the plaintiff's case with respect to the tort of intentional unlawful interference with trade or commerce which is also the proposed new heading before 46A. With respect to this tort see Torquay Hotel v Cousins [1969] 2 Ch 106 at 139, Hadmor Products v Hamilton [1983] 1 AC 190 at 225 and Merkur Island v Laughton [1983] 2 AC 570 at 609.

138 The existing 46A was limited to the union defendants. Proposed amendment would embrace all defendants. This is not productive of embarrassment in view of the previous 46E. The proposed amendment includes a reference to what had been the proposed 41. As this was not allowed this reference should be deleted. Otherwise the amendments proposed to 46A will be allowed.

139 There was no formal objection the proposed 46B, 46C or 46D. They contain variously references to what were proposed to be 41, 41A and 42D. These will now require a modification in light of and in conformity with what has been said earlier in these reasons about those paragraphs.

140 Subject to the bringing in and service of a satisfactory minute to reflect these observations the proposed amendments to 46A - 46F will be allowed.

Paragraph 46E

141 This new paragraph would expressly allege unlawful means. It is objected that this had not previously been pleaded. It is the case that the words "unlawful means" were not previously used. Unlawfulness is, however, a necessary element of the cause of action and the plaintiff raised in the existing pleading means which involve unlawfulness. The proposed amendment may therefore be seen as clarifying the existing pleading rather than introducing novelty and the defendants could hardly be surprised or embarrassed by this proposed amendment.

142 The proposed 46E(a), (b) and (c) reproduce the substance of the existing allegation although they include references to 41 and 42A which

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will require correction. The proposed 46E(d) and (e) are in the same form as had been proposed as 46B(e) and (f). They would introduce unlawfulness by virtue of breaches of s 4(2) of the Government Agreements Act and breaches of five provisions of the Industrial Relations Act. The existing allegation has, since 1992, been limited to the allegations which had been pleaded in 29 - 37C and 39 (ie in essence the proposed 46E(a), (b) and (c)). This amendment would therefore introduce, for the first time, into the plaintiff's case in respect of unlawful and intentional interference with its trade or commerce two further categories of unlawfulness. Much that has been said earlier, especially with reference to the proposed amendments to 43B is applicable to these proposed amendments.

143 Applying the substance of those reasons, and subject to the bringing in and service of a satisfactory minute, I would allow the amendments proposed as 46A(a), (b) and (c) but not (d) or (e).

Paragraphs 47 - 54

144 These presently plead the plaintiff's case for breach of statute. The plaintiff proposes their deletion. Two defendants formerly oppose this but no submissions or reasons have been advanced. The plaintiff had intended to transfer the existing allegations of fact in this category so that they were (with entirely new allegations of unlawfulness) in support of other causes of action raised by the pleading. For reasons given elsewhere, this objective has only been partially successful. Whether, in view of the outcome of those proposed amendments, the plaintiff would now wish to change its proposal to abandon all of these allegations has not been explored.

145 Subject to the outcome of any further submission which the plaintiff might seek to put to me in this regard, 47 - 54 may be deleted.

Paragraph 56

146 The plaintiff proposes a number of amendments to this allegation which purports to identify the matters relied on in support of its claim for "aggravated or exemplary damages". In some respects the amendments proposed are essentially a recasting of the present wording for greater clarity or consistency of style, but in other respects it is proposed to introduce additional and new matters.

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147 The introduction to 56, as it is proposed to be modified, would now describe the claim to be for "aggravated and further or alternatively exemplary damages". The defendants object, primarily on the ground that the plea has rolled-up claims for two distinct types of damage and it has failed to distinguish which matters are relied on in support of each form of damages. While this objection might also be made of the existing plea, the wider range of matters now proposed to be included in the plea might provide reason for greater concern over the form of the pleading.

148 It is now clear that in principle aggravated and exemplary damages are quite distinct. Aggravated damages are general compensatory damages awarded when the manner in which a tort is committed is particularly humiliating or insulting. They are not awarded to punish the defendant but usually to compensate the plaintiff for injury to feelings or mental distress caused by the manner in which the wrongful act was committed. They are most usually found in cases of trespass, intimidation and conspiracy, as well as defamation. Exemplary damages, on the other hand, are awarded in addition to general damages and by way of punishment to the defendant. They may be awarded where the defendant has acted in complete disregard of the plaintiff's rights, where a deterrent to the plaintiff or the wider community is called for, or to repress a plaintiff's desire for revenge. They may be used to acknowledge special suffering endured by a plaintiff or to indicate disapproval of the defendant's actions; Lamb v Cotogno (1987) 164 CLR 1. As it is some time said, exemplary damages may be awarded where the defendant's conduct is malicious, insolent, high handed or contumelious; Johnstone v Stewart [1968] SASR 142 at 144. Provocative conduct by the plaintiff may affect the granting or quantification of exemplary damages; Fontin v Katapodis (1962) 108 CLR 177. These matters were considered by Steytler J in the particular context of defamation in Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996 at 44 - 46. As his Honour noted in that decision, while the distinction between aggravated and exemplary damages can be readily described, the distinction may be difficult to maintain in some practical situations.

149 The above observations are sufficient to reveal that there is good reason for the defendants to know what matters are relied on in support of the claims for aggravated and for exemplary damages.

150 The proposed pleading does fail to make any distinction in this regard. The decisions in Johnstone v Stewart (supra) at 143, 144 and Ronci v Nationwide News Pty Ltd (supra) at 46 do reveal, however, that

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the same matters may be relevant to both forms of damage. That is what the plaintiff clearly enough intends to assert by the proposed pleading in this case. There may be some force in the submission for the defendants that the matters pleaded may be relevant to exemplary damages but it is not apparent that they are relevant to aggravated damages. If that should prove to be so the result would be no award of aggravated damages. What matters at this point is whether the plaintiff has identified the matters on which it intends to rely to support its claim for each of aggravated damages and exemplary damages. It has.

151 There is also objection to the extension of the allegation in the existing 56(b) - the proposed 56(c) - to include the fifth and seventh defendants for the first time. The existing allegation is that the first and third defendants failed or refused to comply with an order of the Western Australian Industrial Relations Commission to do everything in their power to cause the employees of the plaintiff to return to work. The proposed extension of this allegation to two further defendants for the first time at this stage of the proceedings appears to me to be likely to be productive of embarrassment for those defendants, especially as the nature of the allegations is likely to require quite a degree of factual investigation which it is not shown could be undertaken satisfactorily at this time and which it is not apparent would have been undertaken previously for the fifth and seventh defendants. The plaintiff has not shown that this amendment would not be productive of injustice to the fifth and seventh defendants. It will not be allowed.

152 The proposed amendments to 56(a) and (b) would make reference to proposed but disallowed earlier paragraphs, which references now require adjustment.

153 Subject to the bringing in, service and acceptance of a suitable revision of the proposed amendment to reflect these reasons, 56 may be amended.

Conclusion

154 That concludes my consideration of the particular objections raised. The decision that has been reached in respect of each objection has been identified progressively through the reasons. As indicated earlier there has been no objection to the other proposed amendments and these will be allowed. As has been indicated it will be necessary for further proposed minutes to be brought in and served in respect of a number of the proposed amendments.