JL Holdings Pty Ltd v State of Queensland
[1997] FCA 508
•3 JUNE 1997
CATCHWORDS
PLEADINGS - amendment of defence during course of trial - insubstantial defence
Land Act(1962)(Qld) s 343, s 345
JL Holdings Pty Ltd v The State of Queensland
No SG 1 of 1994
Kiefel J Brisbane 3 June 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No SG 1 of 1994
BETWEEN:
JL HOLDINGS PTY LTD
Applicant
AND:
THE STATE OF QUEENSLAND
Respondent
JUDGE MAKING ORDER: Kiefel J
DATE OF ORDER: 3 June 1997
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application for leave to amend is refused.
Note:Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No SG 1 of 1994
BETWEEN:
JL HOLDINGS PTY LTD
Applicant
AND:
THE STATE OF QUEENSLAND
Respondent
CORAM:Kiefel J
DATE:3 June 1997
PLACE:Brisbane
REASONS FOR JUDGMENT
The respondent applies for leave to further amend its defence. The matter was first raised on 30 April but not pursued again until recently. I shall return to that topic later. The respondent’s application for leave to amend concerns what is most likely to have been an oversight in the preparation of the Agreement for Lease document. It is to be alleged that the lease allegedly approved by the then Minister for Lands, Mr Harper, under s 343 Land Act (1962) Qld was subject to a condition that both insurance and indemnity be extended by the lessee to both the Minister and the Crown.
The document which was then prepared by the Brisbane City Council, as trustee, and the applicant did have added to it the additional requirement relating to insurance but there was no reference to an indemnity. That was the form in which the lease document was forwarded, executed by both those parties, to the new Minister for Land Management for his endorsement as required by s 345 Land Act, or at the least to his department. The respondent places reliance upon the fact that it is a matter of defence, by way of response, to the applicant's case that the Minister was obliged to endorse. In that context it is sought to be argued that the Minister could not have been obliged to do so if presented with a document that did not conform, if not exactly then very closely, with the lease he allegedly approved.
The difficulty I have with the respondent's contention is that almost certainly the omission of reference to the indemnity was a matter of oversight. Indeed, senior counsel for the respondent conceded as much, at least for the purpose of this application. It seems that Mr Barnes, an officer of the Lands Department or its Commission, realised something was not quite right with the document when he received it early in 1990 but further examination of it was postponed because, following a change of government, a fresh round of consultations about the applicant’s project was then under way. Events then overtook the process, although at no time has it ever been suggested that this omission was a ground for the Minister’s refusal. By the time of his refusal in the latter part of 1991 the matter had been placed in a different context for his consideration and ultimate decision.
It seems to me that if one focuses upon the process of lodgment for endorsement, as one must, it is inconceivable that an officer responsible for examining the document and acting in good faith would not have drawn the omission to the attention of the Brisbane City Council (prior to it being forwarded to the Minister’s office). A refusal to endorse when inadvertence was, to the Minister’s officer's knowledge, the most likely explanation, would not likely be countenanced by a court or held a valid exercise of power in good faith. Rather, the conclusion which would most likely be drawn was that he had simply been furnished with an excuse, but not a real one, for failure to endorse.
In these circumstances, it does not seem to me that leave to amend to raise such an insubstantial claim is warranted. It is also of relevance that, to do so, would require the recalling of witnesses and further extend what has been, in my view, an unduly prolonged trial, although it perhaps assumes importance because of the shadowy nature of the defence sought to be raised. But there are two other matters which also confirm me in my view that, at the least, the respondent ought to have satisfied the court that the defence was a substantial one before leave could have been granted at this juncture.
Firstly, whilst the reason given for the lateness of the application is, once again, inadvertence on the part of the respondent’s lawyers, I do not think it is a sufficient explanation for failure to observe the discrepancy in the documents. I say so particularly in the light of the events of last year when variations between what had been approved and what was presented to the department and its Minister for endorsement were under close examination. Perhaps, though, the fact that the present matters were so insubstantial or an explanation was so obvious to the officer in question provides the real reason for failure to raise this at an earlier point.
Secondly, but less significantly, the respondent’s tardiness in pursuing the application for leave to amend until 23 May recently has had the consequence that witnesses such as the later Minister for Land Management and some of his officers who might have given evidence about the question have now concluded their evidence without the matter being raised. In this connection the counsel for the applicant says that it had been considered that the draft application furnished by the respondent was not to be pursued. I should add that I was of a similar view. The application for leave to amend is refused.
I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 3 June 1997
Counsel for the appellants: Mr T Gray QC and Mr T Matthews
Solicitors for the appellants: Minter Ellison
Counsel for the respondent: Mr R Hanson QC, Mr J McKenna and Mr R Derrington
Solicitors for the respondent: Crown Solicitor for the State of Queensland
Date of Hearing: 3 June 1997
Place of Hearing: Brisbane
Place of Judgment: Brisbane
Date of Judgment: 3 June 1997
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