Mackie & Staff Pty Ltd v Glengollan Village for Aged People & Anor
[2007] VSC 371
•24 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST
No. 5760 of 2001
| MACKIE & STAFF PTY LTD (ACN 005 653 378) | Plaintiff |
| v | |
| GLENGOLLAN VILLAGE FOR AGED PEOPLE | First Defendant |
(ACN 006 179 906)
and
JOHN ALLEN Second Defendant
GLENGOLLAN VILLAGE FOR AGED PEOPLE Plaintiff for Counterclaim
(ACN 006 179 906)
v
MACKIE & STAFF PTY LTD Defendant for Counterclaim
(ACN 005 653 398)
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 SEPTEMBER 2007 | |
DATE OF RULING: | 24 SEPTEMBER 2007 | |
CASE MAY BE CITED AS: | MACKIE & STAFF PTY LTD v GLENGOLLAN VILLAGE FOR AGED PEOPLE | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 371 | |
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PRACTICE AND PROCEDURE – Amendment – Building case – Application by plaintiff to amend statement of claim and reply and defence to counterclaim shortly before trial due to commence – Assessment of prejudice to the defendants – Not all amendments allowed – Leave granted to file further lay and expert witness statements out of time.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Digby QC with Mr P Bingham and Mr B Reid | Khor & Burr |
| For the 1st Defendant | Mr M Roberts with Ms P Neskovcin | Deacons |
| For the 2nd Defendant | Mr R Andrew | DLA Phillips Fox |
HIS HONOUR:
This is an application by the plaintiff, Mackie & Staff Pty Ltd (“Mackie”), for leave to amend its eighth statement of claim, to amend its reply and defence to the first defendant's counterclaim, and to file and serve a number of further lay and expert witness statements out of time.
Details of the application were given to the defendants on 17 September 2007, although the defendants had been notified a month earlier of some of the proposed amendments to the statement of claim. The application was supported by three affidavits of Paul Charles Munster, a solicitor acting for the plaintiff, sworn on 17, 18 and 21 September 2007. The last of these affidavits was not completed until after the hearing had commenced last Friday.
The application was opposed by both defendants. Indeed, their solicitors had indicated their opposition as early as 27 and 28 August 2007 respectively. On behalf of the first defendant, Glengollan Village for Aged People (“Glengollan”), affidavits were sworn by Megan Elizabeth Calder, a solicitor acting for Glengollan and by John Clifford Gerrard, the Chief Executive Officer of Glengollan. The second defendant, John Allen, swore an affidavit on 19 September 2007 in support of his opposition to the application.
In The State Of Queensland v. JL Holdings Pty Ltd,[1] the joint judgment of Dawson, Gaudron and McHugh JJ made it clear that justice is the paramount consideration in determining an application for leave to amend a pleading. Their Honours held that the purpose of the power to allow amendment (Order 36 of the Rules in the case of this Court) was to have all issues and controversy between the parties decided at the one time, if that could be done without prejudice to the other party, and that an application such as this was not the occasion for the punishment of a party for its mistake or for its delay in making the application.[2] Accordingly, it was held that the trial judge erred when she refused to allow a defendant to amend its defence because the amendment was likely to result in the vacation of the trial date fixed to commence in six months time. The application in that case was made some two and a half years after the proceeding had commenced.
[1](1997) 189 CLR 146.
[2](1997) 189 CLR 146 at 155. See also Kirby J at 172. And see Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen LJ.
Kirby J reached the same conclusion. In his judgment, his Honour discussed various matters which might be relevant to the exercise of the discretion whether or not to grant the indulgence sought. In respect of considerations which might tend to argue against the grant of indulgence, Kirby J said:
"Thus, the failure of a party to offer anything by way of explanation for a late application has been held relevant. So has the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions. Courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. In my view this is not a consideration limited to litigation by natural persons or involving private citizens. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party. Thus, the proximity of the hearing is clearly a most important consideration. An opposing party is entitled to have taken into account the consequences of an indulgence, especially where it would cause disarray at the last minute to its preparation of the trial. Similarly, the length of time that the proceedings have been pending before the application is made will often be a relevant consideration. The longer the time, the more reasonable it may be to expect that the parties, or their lawyers, should have earlier appreciated, and raised, the point in issue. If a consequence of the indulgence is truly a necessity to postpone a trial date, this will be a most important consideration. Its importance increases with the congestion of court lists and the difficulty, particularly in the case of a lengthy trial, of securing early replacement dates. The extent to which a new issue would give rise to a substantial and new case in reply is also relevant. … Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.[3] [Footnotes omitted]
[3](1997) 189 CLR 146 at 170-172.
With these observations in mind, I turn to consider, briefly, the relevant context in which this application is made. The writ, with an indorsement of claim, was issued on 11 May 2001. It was not served, however, until 24 May 2001. The dispute between the parties arose out of a contract made between Mackie and Glengollan on or about 4 October 1999 whereby Mackie agreed to construct additions and alterations to Glengollan's existing Aged Care Facilities in Ferntree Gully for the sum of just over $3 million. The second defendant was the Architect nominated under the contract.
On 23 November 2001, Glengollan applied to strike out Mackie's statement of claim. Some six versions had been served by this time. That application was successful and the Court ordered that the time for the plaintiff to serve a statement of claim be extended to 31 January 2002. That was not done and on 19 April 2002, a self-executing order was made requiring delivery of a statement of claim by 26 April 2002. Although the deadline was not met, the proceeding was subsequently reinstated. A seventh statement of claim was served on or about 11 December 2002. Glengollan again applied to strike out Mackie's statement of claim. At the hearing of 14 March 2003, it was conceded by counsel on behalf of the plaintiff that, in three respects, the pleading was deficient. That led to the filing of the eighth amended statement of claim on 17 April 2003. Thus, if the amendment is allowed, this would be the ninth version of the plaintiff's claim delivered some six years and four months after the proceeding was issued.
At a directions hearing on 31 March 2006, the parties were advised by the Court that the proceeding had been set down for hearing at the start of October 2007, which was the first available date for a matter estimated to involve a hearing of at least ten weeks. There was a possibility of a hearing in March 2007, if another lengthy matter settled. Any chance of using that earlier date was lost when the plaintiff failed to deliver its lay witness statements until 1 November 2006 rather than on the initial due date of 21 July 2006 or the extended date of 31 August 2006.
Since the question of the hearing date was first raised, counsel for Glengollan have made it clear that the first defendant would be seeking the earliest possible date. This is partly because some of their witnesses, who were residents of the village, are elderly and/or in poor health. Once the October 2007 hearing date was fixed, it has been made abundantly clear that Glengollan would oppose anything that would place that starting date in jeopardy. Two of Glengollan's witnesses, including Mr Neville Cowin, are now in such bad health that application has been made for their witness statements to be received without them attending for cross-examination. I was told at the hearing of this application that Mr Cowin’s medical condition is now such that it would not be presently possible to obtain any instructions from him.
The arguments about objections to the lay witness statements have now been set for 1 October 2007 with the actual hearing to commence shortly thereafter, depending on what occurs at the objections hearing, but no later than 15 October 2007.
Despite the fact that the interlocutory steps have continued for over six years and that the hearing is estimated to last at least ten weeks, the amounts involved in this dispute are, by comparison, relatively small. The plaintiff claims approximately $1.7 million and Glengollan counterclaims for approximately $1.6 million.
It is, I think, fair to say that no explanation has been forthcoming as to why the amendments sought to be made are so late. As I have said, the plaintiff has had over four years to consider any deficiencies in the eighth statement of claim. Further, as will be seen, there was considerable debate about the state of the plaintiff's pleadings in March of this year when I heard an application by the defendants to strike out all or part of the plaintiff's expert witness statements. Moreover, some of the proposed amendments were foreshadowed in a letter dated 17 August 2007, but despite warnings from the Court that, if an application to amend was to be made, it should be brought sooner rather than later, this did not occur for another month.
Mr Digby QC, appeared, with Mr Bingham and Mr Reid of counsel, on behalf of the plaintiff. He accepted that the application was late, but submitted that this did not make it an occasion to punish the plaintiff. He relied on what was said in the joint judgment in JL Holdings on this point.
Mr Roberts, of counsel, appeared with Ms Neskovcin, of counsel, for the first defendant. He submitted that the lack of any explanation for the delay in applying was a relevant matter to take into account in the exercise of my discretion, as discussed by Kirby J in his judgment in JL Holdings.
I consider that, in the light of what was said in the joint judgment in JL Holdings, I must not refuse this application simply because it is late and the delay is virtually unexplained. Nevertheless, in my opinion, they are factors which I can take into account in reaching my decision on this application.
The competing submissions essentially came down to this. On behalf of Mackie, Mr Digby submitted that not to allow the amendments would cause immediate, clear, inevitable and irreparable prejudice to the plaintiff in not being able to bring a particular claim or mount a particular argument. He submitted that the general prejudice to the defendants in having to deal with new issues at a late stage could be overcome by appropriate orders about starting time, order of witnesses and so on. But the specific prejudice to the plaintiff, he submitted, could only be met by allowing the amendments so that these further issues could be articulated and determined.
Mr Roberts submitted that his client's preparation would be disrupted and compromised if the amendments were allowed. Even this application had caused that to happen with time being spent on dealing with it, rather than finalising preparation. It was unfair to expect Glengollan to cope with these time-consuming, new issues when the plaintiff had had so much time to plead its claim properly. If the amendments were allowed, Glengollan would have to draw new pleadings as well as grapple with the new factual material.
Mr Roberts further submitted that, were it not for the special position of Glengollan in terms of not having the start of the trial delayed, he would have been submitting that, if the amendments were allowed, there would need to be an adjournment for some time to allow the new issues to be dealt with properly and without these tasks disrupting the preparation for trial and the conduct of the trial.
Mr Andrew, of counsel, who appeared on behalf of the second defendant made similar general submissions about the difficulty and disruption caused to his preparation for the trial by the late application to amend. Mr Andrew also submitted that Mr Allen did not want the starting date of the trial to be delayed.
I have a lot of sympathy for the problems caused to one party by a late application to amend the pleadings by another party. As Mr Roberts submitted, the plaintiff had had all the time it wanted to raise these new issues. The pressure was then unfairly imposed on the responding party to deal with them in a short space of time, whilst also trying to undertake other pressing tasks. Nevertheless, as Mr Digby submitted, the court has the ability to arrange matters so that the prejudice to the defendants can often be diminished, but nothing could alleviate the prejudice to the plaintiff if it could not plead the matters it now wanted to rely on.
The dispute between the parties about the amendments to the statement of claim and the reply and defence to counterclaim came down to six separate issues, four in respect of the former pleading and two in respect of the latter. Otherwise the minor typographical and grammatical amendments were not opposed.
The first issue was the amendment to the statement of claim which sought to raise an allegation that, in breach of the contract, Glengollan did not make the whole of the site (as defined on certain specified drawings) available to Mackie on or before the date of possession, namely 4 October 1999. The additions sought to be made to the pleading, paragraphs 6.4A to 6.4C, follow paragraph 6.2 of the existing statement of claim which referred to clause 9.10.04 of the contract, which dealt with the consequences of occupation or use of parts of the works prior to practical completion without agreement between the parties. Paragraph 6.4A to 6.4C precede paragraph 6.7 of the existing statement of claim which pleaded that, "the builder would be given free and unrestricted access to the project site on the property." In anticipation of this amendment being allowed, Mackie sought leave to rely on a further witness statement from Mr Peter Beattie, dated 30 August 2007, referring to the problems caused to Mackie by not being given access to the whole of the site, and to a further witness statement of its programming expert, Mr William Degenhardt, dated September 2007, to the effect that, if this issue were taken into account, the builder would be entitled to a further 33 days extension of time under the contract.
It was said in Ms Calder's affidavit that it would take Glengollan's programming expert approximately six weeks to prepare a further report dealing with the issues raised by the amendment.
Mr Digby submitted that there had always been an assertion by the plaintiff that it would be given free and unrestricted access to the project site. The new pleading was simply a better argument on the contract as to how this free and unrestricted access point could be mounted. Mr Digby further submitted that no specific prejudice had been shown by the defendants compared with the clear prejudice to the plaintiff if it were not allowed to run this further allegation. He submitted that the delay in preparation to the expert's report could be accommodated because of the duration of the case and, if necessary, by the order of witnesses being adjusted. Mr Digby submitted that instructions could be obtained to enable the defendant's counsel to cross-examine and that this stage was still two or three weeks away. There could be no argument, he submitted, that the time for Mr Kodikara, Glengollan's programming expert, to give evidence in this case was very distant.
Mr Digby further submitted that the extra work brought about by this amendment was no different to what often happened in large, complex litigation when new issues arose during the course of the hearing. It should also be noted that Mr Digby accepted that allowing the amendment would mean that there would need to be some further consequential amendments to the amounts claimed as a result of the delay.
Mr Roberts submitted that this amendment was far too late. Having to deal, at this late stage, with the matters raised by the amendment would disrupt and, in the words of Kirby J: "cause disarray at the last minute to its preparation of the trial"[4] and during the hearing itself. Cross-examination of witnesses would be impeded until the relevant facts had been investigated and Glengollan's programming expert had considered their impact on the question of delay in completion. Thus, were it not for the special position of Glengollan, in terms of not delaying the start of the trial, he would have submitted that there would need to be an adjournment if the amendment were allowed.
[4](1997) 189 CLR 146 at 171.
Mr Roberts further submitted that it was an extraordinary proposition for a party to allege, for the first time nearly eight years after the event, that the owner’s failure to make the whole of the site available to the builder had caused it critical delay. He also referred to Glengollan's pleading in response to the existing paragraph 6. In its defence, Glengollan had pleaded Special Condition clause 15.03 of the contract, which provided as follows,
That the Nursing Home and the Hostel shall remain occupied. The Builder shall liaise with the Proprietor concerning access and completion in order to maintain accommodation for all residents. It is anticipated that occupation of completed areas prior to Practical Completion shall be necessary to maintain adequate accommodation.
In its reply and defence to counterclaim, Mackie had simply pleaded that clause 15.03 did not render clause 9.10.04 redundant. That is, there was no reliance on the claim that Glengollan was obliged to make the whole of the site available to the builder. Mr Roberts therefore submitted that the amendment now sought to be made was inconsistent with the existing pleading by Mackie.
I accept that, if I were not to allow the amendment, the plaintiff would be potentially prejudiced by not being able to mount this claim. It is, however, a significant amendment seeking an extension of time of 33 days. I am, therefore, not surprised that the defendants would argue that their preparing to meet this new claim would be extremely disruptive and time consuming. I consider that it would almost certainly cause the starting date of the hearing to be delayed for at least two or three weeks, which would mean that there would be no chance of completing the case before the end of the year.
The deciding factor in my mind is that it seems to me extraordinary that nearly eight years after work began under this contract and where a claim for extension of time had not previously been made for this alleged breach of contract, it is now being suggested that the conduct of Glengollan was the cause of so much delay to Mackie that it should be entitled to a 33 day extension of time. I refer also to what has been said in the pleadings on this issue. In weighing up the competing prejudices, therefore, I am not persuaded that the prejudice to Mackie is greater than the prejudice to the defendants of having to deal with this significant claim raised at virtually the last minute. I therefore refuse leave to make this amendment.
The second issue was the addition of paragraphs 20B to 20D, each of which alleged an incident or incidents of interference by Glengollan with one or more of Mackie's sub-contractors. Mr Digby submitted that these additional paragraphs were further particularisation of the existing claim of interference by Glengollan with Mackie's sub-contractors. The existing claim, and the new claims, were all relevant to the fundamental change in the nature of the contract claim. Mr Digby argued that although some extra work would be involved if the amendments were allowed, not a substantial period of time would be required for the defendants to get instructions on these matters.
Paragraph 20A of the existing statement of claim pleaded that Glengollan by its agent, John Merlo, had interfered with the electrical sub-contractor, James Dodds Electrical Services Pty Ltd. Paragraph 20B sought to plead very similar facts to those contained in existing paragraph 20A, but, this time, relating to the plumbing sub-contractor, Boscott Plumbing.
Whilst opposing all of the substantive amendments, Mr Roberts put this amendment low on the list of disruption likely to be caused to Glengollan. As I have said, it is similar to the existing complaint involving Mr Merlo. A witness statement by Mr Merlo has been filed by Glengollan. In the circumstances, I would imagine that it would not take a great deal of time for instructions to be obtained from Mr Merlo and certainly, well before Mr Boscott would be called to give evidence.
It therefore seems to me that the just result is to allow Mackie to amend its statement of claim to add paragraph 20B and to make any required consequential amendments.
Paragraph 20C alleged that Glengollan, by its agents, Mr Gerard and Mr Cowin interfered with the electrical and plumbing sub-contractors. The particulars referred to a number of paragraphs of Mr Gerard's witness statement and to one paragraph of Mr Cowin’s witness statement, which, as I understand it, refers to a meeting at which Mr Gerard was also present. Mr Digby made the point that this amendment came out of what was said in Glengollan's own witness statements.
Again, Mr Roberts opposed this amendment because of its lateness and the disruption to preparation and the running of the trial that it would bring. In particular, Mr Roberts pointed to the difficulty confronting Glengollan given Mr Cowin's poor state of health. Although Mr Cowin has given a witness statement, which may in due course be allowed to be tendered without cross-examination, Mr Roberts made the point that it had not been prepared with this allegation in mind and instructions might not now be able to be obtained from Mr Cowin.
Mr Roberts also submitted that there was nothing in the witness statement or outline of evidence of either the electrical or plumbing sub-contractors to suggest that Glengollan interfered in any way with their behaviour. This point however, is going to the merits of the claim itself, rather than to prejudice likely to be suffered by Glengollan if the amendment were allowed.
In the circumstances, given that a large part, if not all, of the relevant evidence, is already contained in witness statements, it seems to be that the just result is to allow Mackie to amend its statement of claim to add paragraph 20C and to make any required consequential amendments. This leave, however, is subject to the qualification that the plaintiff will not be allowed to rely on anything said or done by Mr Cowin or anything said in paragraph 19 in Mr Cowin’s witness statement in support of its allegation of interference by Glengollan with Mackie's electrical and plumbing subcontractors, unless Mr Cowin has recovered sufficiently to be able to give Glengollan's solicitors instructions on this new allegation and to verify any further witness statement by him, if such is required.
Paragraph 20D alleged that Glengollan by its agent, Mr Allen, had:
Interfered with the builder's subcontractors, in particular Smith, Elite Tiling, Midway Constructions, Tag Subcontracting, Chad Plastering, T&S Rowe & Co. Pty Ltd, Dodds and Boscott.
The particulars referred to parts of seven witness statements and one outline of evidence already filed by Mackie. Mr Roberts, however, drew attention to the fact that the references were very vague as they involved a large number of paragraphs which appeared to have very little to do with the issue in question and there was not even mention of all of the subcontractors allegedly interfered with by Mr Allen. Thus, it was not clear what case was being put against Glengollan.
Further, Mr Roberts submitted that Glengollan was entitled to know how it was put by Mackie that, if Mr Allen did what was alleged against him, he did those acts as agent for Glengollan when clause 5 of the contract expressly stated when the Architect was to be treated as acting on behalf of the proprietor and when he was not, and dealing with the subcontractors was not within the former category.
In reply, Mr Digby submitted that the Architect was administering the contract on behalf of Glengollan when he did the acts in questions. Nevertheless, Mr Digby conceded that the particulars were not appropriate and that the defendants were entitled to a properly particularised claim. I should also add that that concession did not include the point about the relevant facts on which the plaintiff relied to make the allegation that, in so acting, Mr Allen was acting as the agent of the proprietor.
In the circumstances, I am not prepared, at this stage, to grant Mackie leave to add paragraph 20D to the statement of claim. Mackie is seeking an indulgence in applying for leave to amend the statement of claim and, in my opinion, there should be no granting of leave to amend unless and until the paragraph in question is properly pleaded and particularised. Leave to amend the statement of claim by adding paragraph 20D in its present form is therefore refused. This does not mean that Mackie cannot make a fresh application for leave to amend by adding a properly pleaded and particularised paragraph 20D, but the later the application, the more disruption there may be caused to the defendants.
Since reaching that conclusion, and shortly before coming into court this morning, I received a copy of a freshly drawn paragraph 20D which possibly dealt with the question about the lack of particularisation within the paragraphs of the witness statements relied on by the plaintiff. However, it did not deal with the particularisation of how it was said that Mr Allen was the agent of Glengollan. Neither Mr Roberts nor Mr Andrew were in a position to make further submissions on that document as they had just received it. In my view, it still did not deal with the complaint that I have upheld, at least in respect of the lack of particularisation about the agency of Mr Allen. Therefore, the new draft of paragraph 20D does not cause me to change the view I had previously reached.
The third issue was the change of date pleaded in paragraph 29 for the alleged acceptance by Mackie of Glengollan's repudiatory conduct from “in or about September 2001” to “in or about July 2001”. Mr Digby submitted that this amendment was simply to change a date. He pointed out that the particulars to paragraph 29 had, for a long time, said:
The Builder’s acceptance was to be implied from the Builder ceasing to perform the Works and leaving the site on or about 18 July 2001 and not continuing with the Works since that time.
He therefore submitted that there was no reason not to allow the date in the pleading to be altered to conform with the particulars. He submitted that the defendants did not have to grapple with any new material so that they could not say they were prejudiced by the amendment. They could put in their responsive pleading without being distracted for any length of time.
Mr Roberts submitted that the date, September 2001, had been in the pleading for at least five years. Moreover, he submitted that the plaintiff's evidence did not support the change, arguing that Mr Mackie, in his witness statement, had supported the September 2001 date. He also submitted that allowing the amendment would require Glengollan to put in a further witness statement to say what happened in the three months in question.
I am not convinced that Mr Mackie's statement bears the construction put on it by Mr Roberts. This will, no doubt, be a matter for cross-examination and final submissions. In all the circumstances, I consider that the plaintiff should be allowed to make this amendment, even if this involves the defendants having to file further material. I would have thought that the events of May to September 2001 would already have been carefully scrutinised by the defendants, in any event, in dealing with this question of the alleged repudiation.
The fourth issue concerning amendments to the statement of claim was the inclusion in the particulars to paragraph 31 of two further extension of time claims, the WCA Closure (EOT 14) and the slab plastic delay (BC 7). It was said that both of these delays had been considered and particularised nearly four years ago in Mr Degenhardt's report of October 2003 and that he had concluded that they justified a further extension of time of four working days.
Mr Roberts drew attention to a facsimile sent by the plaintiff's solicitors on last Thursday evening enclosing what was described as "Summary of Delays prepared by Bild Pty Ltd”, Mr Degenhardt's company, dated 19 September 2007. The point made by Mr Roberts was that, in the summary, Mr Degenhardt had put a nil extension for both of these additional items. Mr Roberts also pointed out that although the claim appeared to be four working days for these two items, in paragraph (n) of the particulars to paragraph 31, it appeared as three working days. Thus, he submitted, it was not at all clear what the plaintiff was saying.
Again, although every additional issue involves further work on the part of the defendant, I consider that the plaintiff should be granted leave to make this amendment. No doubt the discrepancy between the four days and three days in the proposed ninth statement of claim will be clarified before the document is finally delivered.
The first issue concerning the amendment to the plaintiff's reply and defence to counter claim was the addition of paragraph 33A. It contained a pleading that Glengollan had waived its entitlement to rely on any non-compliance by Mackie with extension of time clauses 9.01 and 9.02 of the contract, alternatively, that it was estopped from raising the requirements of those clauses in defence to the plaintiff's extension of time claims.
Mr Digby submitted that this amendment was simply seeking to add a legal construction or conclusion on to facts already referred to in existing witness statements. There would be no prejudice to Glengollan, he submitted, in having, in due course, to deal with this legal argument.
As I understood him, Mr Roberts’ main complaint about this amendment was that it alleged that Mr Allen was the agent of Glengollan without explaining how that was put in the light of the contractual provisions. As I have previously said, in respect of paragraph 20D, it is my opinion that Glengollan and, to a lesser extent, Mr Allen, are entitled to know before the trial commences how it is put by the plaintiff that in acting as it is alleged that Mr Allen did, in the paragraphs of the witness statements relied on by the plaintiff, that he was acting as the agent of Glengollan. Therefore, again, I refuse leave, at this stage, to amend the statement of claim by adding paragraph 33A. Again, this does not mean that Mackie cannot make a fresh application for leave to amend that paragraph, if it properly particularises the allegation of agency vis-à-vis Mr Allen and Glengollan.
The last pleading amendment issue was the addition of paragraph 74A to the plaintiff's reply and defence to counterclaim. This contained an allegation that Glengollan had prevented Mackie from proceeding with the works regularly and/or diligently, alternatively, from bringing the works to practical completion by the date for practical completion, alternatively, within a reasonable time. The particulars referred to and repeated many earlier parts of the statement of claim including:
(iv)the delays including the non-critical and concurrent delays referred to in the Degenhardt Reports filed herein dated 29 October 2003 and September 2007.
Some paragraphs in the plaintiff's witness statements were also referred to.
Mr Digby submitted that it had always been part of Mackie's case that, in addition to specific critical delays, there were non-critical delays and other conduct of the defendants which had affected Mackie's efficiency and productivity. All of these matters were capable of being relevant acts of prevention, explaining why Mackie did not finish within a reasonable time. It was up to the defendants, he submitted, whether they wished to deal with these matters or not.
Secondly, Mr Digby submitted, a large number of the non-critical delays had already been addressed in the evidence of the defendants. He referred me to a document which purportedly summarised what had been said in the witness statements about the non-critical delays. As I read the document, however, it shows that the defendants have put in material dealing with five out of the ten non-critical delays listed.
Mr Digby submitted that paragraph 74A was simply a basis for a legal argument in respect of Glengollan's claim that Mackie had not finished within a reasonable time.
Mr Roberts submitted that, at the hearing in March 2007, Mr Digby had conceded that the plaintiff's pleadings did not refer to non-critical delays. He therefore submitted that this was a late attempt to make relevant evidence that Mr Digby had acknowledged, some six months before, was not part of the plaintiff's case.
I do not agree. As I said at paragraph 46 of my judgment, on the application to strike out the expert witness statements:
I have concluded that Mackie has an arguable case that section 7 of Mr Degenhardt's report is relevant, at least to its defence of Glengollan's counterclaim, and that it therefore would not be appropriate to strike out that part of his report.
This meant that the non-critical delays referred to in section 7 of Mr Degenhardt's report were going to be the subject of evidence. In those circumstances, the plaintiff could not have objected to the defendants putting in further material dealing with these delays. As Mr Digby submitted, it was up to the defendants whether they did or not, but they could have been under no misapprehension that I considered that the plaintiff's evidence on this point to be arguably relevant.
The situation is, therefore, that the addition of this new paragraph involves a new way of viewing facts which had been held to be arguably relevant. In the circumstances, I am not persuaded that allowing the amendment would cause the severe disruption suggested by the defendants but, if it does, that would come, in my opinion, from a belated recognition that the defendants needed to deal with the non-critical delays rather than from the amendment itself. I therefore allow this amendment.
Three issues remain, all involving the late production of expert witness statements. The plaintiff now seeks to rely on expert witness statements in reply by Mr Miller and Mr Degenhardt, despite having said previously that there were no further expert witness statements. The fact that these two statements were apparently overlooked, despite their existence having been raised by the defendants, is rather extraordinary, but it does not seem to me to be relevant to the issue now before the Court. I consider that allowing these statements in reply to be filed would be advantageous to the efficient conduct of the proceeding as they, and any further responding affidavits by the defendant's expert witnesses, will hopefully narrow the issues in dispute between the experts. The content of the statements is, in any event, the sort of evidence that might be given viva voce at the start of the expert witness' oral evidence.
The next issue is the late filing of Mr Lechner's amended witness statement. In my opinion, there is really no reason why Mr Lechner's statement cannot be filed, even though it is late. As a result of the argument in March 2007, a few paragraphs of his earlier report had to be changed and this should have been done before 21 July 2007. It was said that difficulties resulted from Mr Lechner residing in the United States of America. However that may be, I see no reason why the defendants cannot deal with this expert witness statement in due course. I therefore extend the time for the filing of Mr Lechner's expert witness statement.
Finally, there is the question of the late filing of an expert witness statement by Mr Coghlan. His earlier statement was withdrawn at the hearing in March 2007. That concession takes on a different light now that it is seen that, in fact, Mr Coghlan had been instructed to prepare a further report in December 2006. His new witness statement should have been filed by 21 July 2007. An explanation has been given concerning the difficulties in obtaining the new statement from Mr Coghlan. I consider that the plaintiff should be permitted to rely on this witness statement. It is relatively confined and should cause no undue prejudice to the defendants in dealing with it.
I should also add, for the sake of completeness, that the refusal to allow the plaintiff to amend its statement of claim to include the claim for delay of 33 days carried with it a refusal to allow the plaintiff to rely on the further witness statements of Mr Beattie dated 30 August 2007 and Mr Degenhardt dated September 2007, because they would not be relevant to any issue in the proceeding.
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