INP Consortium Ltd v Tourang Ltd

[1993] FCA 645

6 6 \ 93

JUDGMENT NO. ........ .... .... .. ........ ....

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW SOU TH WALES DISTRICT REGISTRY ) No. NG 812 of 1991

GENERAL DIVISION 1

BETWEEN:  INP CONSORTIUM LIMITED

Applicant

AND :  TOURANG LIMITED

First Respondent

D L NICHOLL and K W SKINNER

Second Respondents

ORD MINNETT SECURITIES

LIMITED

Third Respondent

31 August 1993

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion by the applicant to further amend its statement of claim. The nature of the litigation has been referred to by me earlier in the reasons for judgment which I - delivered on 19 February 1993. They need no re-statement.

These amendments sought by the applicant raise for the first time issues with particular application to the second

The amendments which the applicant seeks to make to the statement of claim are in some respects formal: they are not opposed by the respondents. But there is a serious issue as to whether or not amendments by adding paragraphs 35A, B, C and D to the statement of claim should be allowed, and whether the consequential amendment to paragraph 36 should be allowed.

respondents, though with consequential effects to the third
respondent.

The amendments that are foreshadowed have been the subject of informal particulars which have been given to the respondents by the applicant. If the amendments are allowed to the paragraphs to which I have referred as being the contentious paragraphs, there will be both oral and documentary evidence led by the applicant and, doubtless, evidence of the same kind from certain of the respondents.

The amendments do raise matters of importance to the case and matters which, so far as the applicant's case is concerned, are certainly not merely formal: they are amendments of considerable substance.

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The motion to amend must be considered in the context of the case as a whole and the chronology of events that have occurred

since the case was commenced on 18 December 1991.	1 will refer
briefly to certain of those events.

The statement of claim was filed on 28 January 1992. An amended statement of claim was filed on 14 February 1992. A further amended statement of claim was filed on 21 May 1992, and the statement of claim in its present form was filed on 26 August 1992. These various amendments to the statement of claim were preceded in two instances by motions to strike out the statement of claim. There have been, in all, more than 25 directions hearings in the case to date.

On 12 February 1993 Sheppard J gave directions, including a direction that the time for filing of the applicant's affidavits be extended to 26 February 1993. His Honour ordered that in the event that the affidavits were not filed by that time, the applicant would not be permitted to file any affidavits without the leave of the Court, which would not be granted in the absence of there being shown to be special reasons or circumstances why such leave should be granted.

The reason for the amendments that are currently being
sought being sought as late as they are, has not been explained

by any evidence, though certain explanations have been offered

to a degree from the bar table by counsel for the applicant.	-
on 18 October next, approximately a month and a half away, and The case has been specially fixed for hearing to commence	in accordance with the estimates given by the parties to the
Court, some five days have been allocated to the case.
One of the grounds of opposition to the motion by the respondents is that it may be that the hearing date will be vacated if the amendments are allowed. The respondents, in particular the second respondents, are not yet in a position to assess what steps they will have to take and evidence they will have to adduce in order to meet the prospective amendments, and their counsel has indicated that it may be that the trial would have to be vacated.
However, as discussion has taken place between counsel and the bench it does seem to me to emerge that at worst, so far as the trial is concerned, it would be able to start on the date fixed, though it may not conclude within the five day period that has been assigned to it. Indeed, I would add, that may be a consequence in any event, with or without the amendment. From what has been said to me, I am by no means satisfied that the trial would necessarily finish within the five day period, so I take that matter into account. I do not approach the motion on the basis that if the amendment is allowed the fixture will have to be vacated, but that is a possibility.

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The second respondents have indicatedthroughtheir counsel,

and I accept, that there will be a need to engage in fairly

adduce, and that they should not have to do this and, if they do,	extensive investigations to see what evidence they will have to
that they should be compensated for this by costs. The case has been on foot for a long time, the respondents, not surprisingly, wish to have the litigation heard and disposed of as soon as possible. I have no doubt whatever that litigation generally, and litigation of this kind in particular, would be stressful to parties that are involved in it in meeting the allegations that
have been made to them. I take all that into account.
I am mindful also of the principles that govern motions of this kind. I need simply refer to the classic statement of principle of Lord Griffiths in Ketteman v Hansel Properties Limited [l9871 AC 189 at 220, a passage which has been often cited. I t has been referred to with approval by the Court of Criminal Appeal of New South Wales in a judgment of the Chief Justice, in which the other members of the court concurred, in
State Pollution Control Commission vAustralian Iron & Steel Pty
Limited (1992) 29 NSWLR 487 at 494 and 495.
The same passage from the speech of Lord Griffiths has been referred to with approval by this Court sitting as a Full Court in Bomanite Pty Limited v Slatex Corporation Australia Pty Limited (1991) 32 FCR 379, in particular per Gummow J at 387 and per French J at 392.

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The point was dealt with by King CJ in Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 at 366.	I need not
re-state the principles, except to say this, that I find apt for	this case the following passage from the speech of Lord Griffiths

"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

e n t i t l e d to weigh i n the balance t h e s t r a i n the l i t i g a t i o n imposes on l i t i g a n t s ,

p a r t i c u l a r l y i f they a r e personal l i t i g a n t s

r a t h e r than b u s i n e s s corporat ions , the

a n x i e t i e s occasioned by fac ing new i s s u e s ,

the r a i s i n g o f f a l s e hopes, and the

l e g i t i m a t e e x p e c t a t i o n t h a t the t r i a l w i l l determine the i s s u e s one way or the other. . . . Another f a c t o r t h a t a judge must weigh

i n the balance i s the pressure on the c o u r t s

caused by the great i ncrease i n l i t i g a t i o n

and the consequent n e c e s s i t y t h a t , i n the

i n t e r e s t s o f the whole community, l e g a l

bus iness should be conducted e f f i c i e n t l y .

I take all those considerations into account as they are all relevant in dealing with this motion.

A document upon which the applicant seeks to rely in support of the prospective amendments is a report dated 15 December 1991 from Baring Brothers Burrows & CO Limited, which is a report in the form of a recommendation to the Receiver of John Fairfax Group Wmited. It is plain from the particulars which the applicant proffers with respect to certain of its prospective

allegations embodied in paragraphs 35B and 35D that the report is an important document.

I am informed by counsel for the applicant that that document was not received by the applicant until the course of the process of discovery and inspection of documents, and that it came into the applicant's possession not earlier than the middle of June this year and not later than late that month: the precise date is not known. There has been no evidence as to why the intervening month and a half has not enabled this motion to be put on earlier, a factor which must weigh against the success of the motion.

Counsel for the applicant has informed me, and I accept, that at least to some reasonable extent the material which is relevant to the prospective amendments would be material that the Court would have before it, in any event, with the issues as they presently are, but, of course, it has not been suggested and nor could it be that all the material relevant to the new issues would be before the Court in any event.

The primary function of the Court in motions like this is to do justice as best as it can in the interests of all the parties, but a very relevant consideration is that the Court must do its best to hear all the matters that are truly in dispute between the parties, and I am satisfied that the matters which - the applicant seeks to raise are matters which ought to be ventilated in this case and the applicant not left to the	prospect of instituting fresh proceedings to raise them, when
they would so substantially overlap the present proceeding. It
is regrettable that this will be the fifth statement of claim that would be filed by the applicant but nevertheless, I think that the interests of justice require that the motion should succeed.
It would be on terms which I would impose. Any costs that are thrown away by reason of the amendment being allowed, which at the moment, as I said, if the hearing is vacated, would include those costs, should be paid by the applicant on an indemnity basis. That may not turn out to be the fact as the hearing may not in fact be vacated.
Accordingly, the Court orders that the applicant have leave to file and serve a further amended statement of claim, substantially in the form annexed to the notice of motion filed on 25 August 1993. The Court notes that the particulars which are given to paragraphs 35 (A) are not correct, and need amendment in the light of the letter of 31 August 1993 from Messrs. Landerer and Company to Messrs. Mallesons Stephen Jacques. That would fall within the umbrella of the form of the amendment being substantially as annexed to the motion.

There has been discussion about costs. In my view the costs

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of and occasioned by the amendments must be paid by the applicant and the costs of the respondents of today's motion should be paid

by the applicant in any event. The respondents ask for indemnity

costs. In my opinion it is appropriate to order indemnity costs. The application has been made by the applicant without evidence supporting it to explain why it has been made so late. There has been non-compliance by the applicant with earlier directions, including but not limited to the directions of Sheppard J of 12 February 1993. There has also been non-compliance by the respondents at different times. But I think in all the circumstances the fair order is that the costs of the respondents

of today's motion should be paid by the applicant in any event
on an indemnity basis.

I propose to make no further orders as to costs, having already indicated that as the matters stand at present, if the hearing has to be vacated and if the substantial reason for that is the making of the amendments that have been sought by the applicant and did not involve fault on the part of the respondents, then as I see it at the moment, it would be appropriate that the costs thrown away should be paid by the applicant on an indemnity basis. But I make no such order; it is premature. All I have said is to indicate a preliminary view.

That is a matter to be determined in due course by a judge of the
Court.

I order the applicant to file and serve all remaining affidavits on or before Monday 6 September next and direct that in the event of those affidavits not being filed on or before

that day, the applicant not be permitted to file any other

affidavits without the leave of the Court, which will not be

granted in the absence of there being shown to be special reasons

or circumstances why such leave should be granted.

Liberty to apply is reserved to any party on two day's

notice.

lng eight (8) pages are a true herein of the Honourable Mr.

Dated: 31 August 1993

Counsel for the Applicant	R J Ellicott QC U R Conroy
Solicitors for the Applicant	Landerer & Company
Solicitors for First Respondent	Freehill Hollingdale & Page
Counsel for Second Respondent	T Bathurst QC S G Finch
Solicitors for Second Respondent	Mallesons Stephen Jaques
Counsel for Third Respondent	H Nicholas QC
M J Slattery
Solicitors for Third Respondent	Clayton Utz
Date of Hearing	31 August 1993
Date of Judgment	31 August 1993