Kelly, M.E. v Elders Finance & Investment Company Ltd

[1991] FCA 629

IN TSIE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY	1	No. NG275 of 1985
1
GENERAL DIVISION	1

BETWEEN:  MAURICE EDWARD XELLY

Applicant

AND:  ELDERS FINANCE AND INVESTMENT COMPANY LIMITED &

Respondents

JUDGE MAKING ORDER:  LOCKHART J.

RECEIVED WHERE ORDER MADE: SYDNEY

28 OCT 1991

DATE ORDER MADE:  9 OCTOBER 1991

MINUTE OF ORDER

THE COURT ORDERS THAT:

1.    Leave be granted to the appl-icant to further amend the

amended statement of clam. -

2.    The document headed "second amended statement of claim" filed 23 September 1991 be treated as the second amended statement of claim.

in the proceeding.

3.    Further service of the second amended statement of claim upon the respondents be dispensed with.

4.    The m-otion by the respondents to set aside the notice to produce be dismissed.

5.    The hearing date of 21 October 1991 be vacated.

6.    The costs of the motions and any costs that may be thrown away by reason of the vacation of the hearing date be costs

7.    The right of the respondents to plead and otherwise raise any limitation of action point on which they may seek to rely arising out of the amendments to the statement of claim be reserved.

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

IN TIIE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	1 No. NG275 of 1985
1
GENERAL DIVISION	1

BE!IW!ZEN :  MAURICE EDWARD KELLY

Applicant

AND:  ELDERS FINANCE AN D INVESTMENT COMPANY LIMITED &

Respondents

9 October 1991

REASONS FOR JUDGMENT

LOCKHART J.

There are two notices of motion before the court this afternoon. One is a motion by the applicant for leave to amend the amended statement of claim. The other is a motion by the respondents seeking orders setting aside certain paragraphs of a notice-to produce dated l&.September 1991, served by the applicant on the respondents. They have been heard together by consent. Underlying each of the motions is the question of

whether or not the trial date of this matter should be vacated. The matter was specially fixed for final hearing a considerable time ago and it is due to commence on 21 October 1991. The estimates of the parties given to the court at the time of fixing the matter for final hearing was that the matter would take up to two weeks. The arrangements of the court and the availability of a judge was fashioned on that assumption. I mention that because it is unfortunate that the motion for leave to amend has arisen as late as this, but I attribute no blame to anybody in relation to that. The parties are plainly at cross purposes as to what led to the late motion to amend. In the main, the applicant asserts that apart from formal amendments, those of substance in the proposed amended statement of claim were really due to the late production of documents by the respondents or the coming into the hands of the applicant of other documents, which caused it to necessarily re-think its case, and propound the proposed amended statement of claim. The respondents do not agree with those contentions. I do not propose to say, as I cannot say on the material before me, who is right or wrong in relation to that.

The proposed amendments to the statement of claim fall into a number of categories and some of them raise fresh allegations.

. .

The respondent says that the matters pleaded in paragraphs 35 to

-

43 of theAproposed amended statement of claim would be statute barred. There are some other new claims that raise new factual

respondents in the preparation of their case. However, there are issues but do not seem to occasion great trouble to the	other claims which are to be propounded in the proposed amended
statement of claim which, while not large in number, are, according to the respondent, large in content. And they are regarded obviously by the applicant as essential to the proper presentation of its case. I need not refer to them in detail except to say that they are embodied in certain subparagraphs of paragraph 4 of the proposed amended statement of claim and paragraph 7. The applicant in short says that the proposed amendments to the extent that they are substantial, have been brought about by the conduct of the respondents in the course of interlocutory processes and particularly discovery, and that it
is not the applicant's fault that the motion is made so late in the piece. The respondents deny that the matters have arisen by reason of their fault.
There is evidence before me that in order to comply with the notice to produce, which in the main goes to the proposed new issues in the case, substantial time and money will be spent by the respondents and their advisers in preparing their case to answer to those contentions.
It seems to me that doing the best I can, this is a matter where the hearing date of the trial will have to be vacated. It

. .

is now said on the part of the parties, that the hearing would, so far as-the counsel assess take not less than three weeks, assuming the new issues that are sought to be propounded are in

statement of claim to be further amended as sought by the	fact raised. I think the most appropriate course to take is to allow the
applicant, and for the applicant's notice to produce documents and a related notice to admit facts to take their course, and for the parties to cut their cloth accordingly. Accordingly the court grants leave to the applicant to amend it's amended statement of claim by filing the document headed "second amended statement of claim". I note that it has already been filed on 23 September 1991, and that document may be treated as the second amended statement of claim, and I dispense with any further service of that document upon the respondents.
The motion by the respondents to set aside the notice to produce is a motion which I will not accede to and it is dismissed. The hearing date for the action is vacated. The court orders that the costs of the motions and any costs that may be thrown away by reason of the vacation of the hearing date, shall be costs in the proceeding, and the court also reserves the right of the respondents to plead and otherwise raise any limitation of action point on which they may seek to rely, arising out of the amendments to the statement of claim.

I certify that this and the preceding three (3) pages are a true copy of the reasons for

+	judgment hereinof the Honourable - Mr. Justice Lockhart.
Associate
Dated: 9 October 1991

Counsel for the Applicant	M S Jacobs QC
Solicitors for the Applicant :	Wood Roberts
Counsel for the Respondent	A J L Bannon
Solicitors for the Respondent :	Phillips Fox
Date of Hearing	9 October 1991
Date of Judgment	9 October 1991