Hopkins, Ann v Seymour Softwoods Ltd

[1998] FCA 760

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Amendment of defences - Applications to amend defences at time of hearing - Application to amend defence of fourth respondent by withdrawal of admission - whether substance of application is an attempt to re-litigate a matter previously disposed of in an interlocutory proceeding - whether prejudice to applicant if amendment were made - Application to amend defences of all respondents so as to rely on statutory limitations periods - whether right to reliance has been waived - whether prejudice to applicant if amendments were made.

Trade Practices Act 1974 (Cth) - Pts IV, V; ss 82(2), 87

Western Australia v Wardley Australia Limited (1991) 30 FCR 245 - followed.

ANN HOPKINS -v- SEYMOUR SOFTWOODS LIMITED & Ors

NG 3039 OF 1996

FOSTER J

25 FEBRUARY 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3039 of 1996

BETWEEN:

ANN HOPKINS
APPLICANT

AND:

SEYMOUR SOFTWOODS LIMITED
(Controller Appointed)
(ACN 007 055 889)
FIRST RESPONDENT

SINTOFF PTY LIMITED
(Receiver Appointed)
(ACN 006 621 487)
SECOND RESPONDENT

BERREMA FINANCE PTY LIMITED
(Receiver Appointed)
(ACN 005 982 605)
THIRD RESPONDENT

EQUUSCORP PTY LIMITED (formerly called
EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 102 344)
FOURTH RESPONDENT

EQUUSCORP PTY LIMITED (formerly called
EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)
CROSS-CLAIMANT

ANN HOPKINS
CROSS-RESPONDENT

JUDGE:

FOSTER J

DATE OF ORDER:

25 FEBRUARY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application to amend the fourth respondent’s defence by withdrawal of an admission is dismissed.

1. The application to amend the first, second, third and fourth respondents’ defences so as to rely on relevant limitations periods is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3039 of 1996

BETWEEN:

ANN HOPKINS
APPLICANT

AND:

SEYMOUR SOFTWOODS LIMITED
(Controller Appointed) (ACN 007 055 889)
FIRST RESPONDENT

SINTOFF PTY LIMITED
(Receiver Appointed) (ACN 006 621 487)
SECOND RESPONDENT

BERREMA FINANCE PTY LIMITED
(Receiver Appointed) (ACN 005 982 605)
THIRD RESPONDENT

EQUUSCORP PTY LIMITED (formerly called
EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 102 344)
FOURTH RESPONDENT

EQUUSCORP PTY LIMITED (formerly called
EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)
CROSS-CLAIMANT

ANN HOPKINS
CROSS-RESPONDENT

JUDGE:

FOSTER J

DATE:

25 FEBRUARY 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Extempore)

I have two notices of motion before me.  The first seeks to amend the defence of the fourth respondent by way of withdrawal of an admission and the second seeks to amend the defences of all the respondents so they may rely on relevant limitations periods.  I will deal with the notice of motion to amend the fourth respondent’s defence first.  This motion has been in existence from the outset of the case.  I am hearing it now at the conclusion of the applicant’s case and after all the evidence although nothing in particular turns upon this fact since the hearing of the notice of motion was deferred, so far as I recollect, in order to suit the convenience of the applicant who is not in good health.  I have had the matter fully argued before me by counsel for both parties and I have had regard to the original pleadings and to the amendment which is sought to be made.

It is perfectly clear to me that this notice of motion is quite simply a re-run of a notice of motion that I heard and disposed of on 11 November 1997.  If it is not in the precise terms of that notice of motion, in my view it is the same in substance.  As a consequence, the respondent starts with a very considerable burden.  It is, in effect, an attempt to re-litigate a matter that was disposed of on an interlocutory basis, there having been no application for leave to appeal from the decision.  There is the additional problem that, although this notice of motion and the accompanying affidavits spell out in far greater detail the basis upon which the amendment is sought, it still leaves a situation where there could conceivably be prejudice to the applicant if the amendment were made.  I have come to the conclusion, on the basis of the arguments that have been put before me, and the fact that, in my view, the matter has already been heard and disposed of, that I should not accede to this application, and therefore I dismiss this notice of motion.

The second notice of motion, an application which was also foreshadowed at the commencement of the hearing, is to amend the defences, in respect of all the respondents, in order to rely upon subs 82(2) of the Trade Practices Act 1974 (Cth) (“the Act”).  In substance it is an application to raise and rely upon the time limit set out in that section for the bringing of actions for breaches of Pts IV and V of the Act. A similar application is made in respect of such part of the applicant’s case which depends upon s 87 of the Act.  The application is opposed. 

Subsection 82(2) is stated in the Millers Annotated Trade Practices Act (19th ed (1998) at page 467) to be “a condition of the remedy provided for in subs 82(1) rather than a prerequisite that cannot be waived”.  The High Court decision in Western Australia v Wardley Australia Limited (1991) 30 FCR 245 deals with the categorisation of the defence raised under this subsection. It is authority for the proposition that the right to assert non-compliance with the section may be waived by the respondent, for instance, by failing to plead it.

These proceedings came to trial in circumstances where there was a failure on the part of the respondents to plead a defence under this section.  Now, the Court is being asked to allow the introduction of the defence in circumstances where it is to be properly regarded as having been waived.  I have had recourse to the file in this matter when considering this application.  I note there have been twenty-seven separate directions hearings since the matter was instituted, a number of which, of course, were before registrars.

There have been notices of motion previously brought in these proceedings.  In November of last year I heard and disposed of a notice of motion to amend a defence, which had already been filed, by the deleting of an admission.  No application was made at that time for this quite radical amendment to be made.  I pay regard, of course, to the philosophy of this Court, indeed of all modern litigation, that all matters which should reasonably be raised between the parties, should be allowed to be raised, unless the circumstances suggest the contrary. 

It is impossible in this case, in my view, to find an absence of prejudice on the part of the applicant if this defence were raised. As no absolute bar is imposed by the section, there must always be questions involved as to when the relevant damage was sustained and the time at which subs 82(2) commences its operation. These proceedings were expedited because of the state of health of the applicant. I have been advised too, that there are financial constrictions involved in the conduct of her case which would render it quite impractical for an adjournment to be sought to enable this defence to be investigated. The view I have come to, in all the circumstances, is that I should refuse this application.

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

Associate:

Dated:            25 February 1998

Counsel for the Applicant:	Mr D.J. Higgs S.C. with Mr D. Robertson
Solicitor for the Applicant:	Thompson Eslick Solicitors
Counsel for the First, Second, Third and Fourth Respondents:	Mr S. Kalfas
Solicitor for the First, Second and Third Respondents:	M.D. Nikolaidis & Co
Solicitor for the Fourth Respondent:	Michell Sillar Solicitors
Date of Hearing:	25 February 1998
Date of Judgment:	25 February 1998