McMurtrie v Commonwealth of Australia

[2002] NSWSC 704

CITATION:	McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 704
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20448/99
HEARING DATE(S):	8 August 2002
JUDGMENT DATE:	13 August 2002
PARTIES :	Mark McMurtrie (Respondent/Plaintiff)) The Aboriginal & Torres Strait Islander Commissioner (Appellant/2nd Defendant) Dumaresq Shire Council (Appellant/3rd Defendant)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	20448/99
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	A.S. Howen (Respondent/Plaintiff) D. Robinson (Appellant/2nd Defendant) D. McGovern (Appellant/3rd Defendant)
SOLICITORS:	Ward Maxwell & Co (Respondent/Plaintiff) Australian Government Solicitor (Appellant/2nd Defendant) Phillips Fox (Appellant/3rd Defendant)
LEGISLATION CITED:	Limitation Act Supreme Court Rules
CASES CITED:	Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 Booker Industries Pty Limited v Wilson Parking (Queensland) Pty Limited (1982) 149 CLR 600 Australis Media Holdings v Telstra Corporation (1998) 43 NSWLR 104 Hoyts Pty Limited v Spencer (1919) 27 CLR 133
DECISION:	See paras 60-62.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Tuesday 13 August 2002

20448/99 MARK McMURTRIE v THE COMMONWEALTH OF AUSTRALIA & ORS

JUDGMENT

1 HIS HONOUR: There are two appeals from a decision of Master Harrison in proceedings being pursued in this court by the respondent Mark McMurtrie. In October 1999, at a time when he was not represented, the respondent filed a statement of claim in which six defendants were named. Later a seventh defendant was added. For reasons which it is unnecessary to record, there are at present only two remaining defendants and they are the appellants presently before this Court. Those appellants are identified in the amended statement of claim the focus of the appeal as Aboriginal and Torres Strait Islander Commission (ATSIC) as second defendant and Dumaresq Shire Council (DSC) as third defendant.

2 The present appeals invite attention to two judgments by the learned Master, the earlier one having been delivered on 19 March 2002 and the later one on 24 May 2002. In the judgment in March, the Master made the following orders:

“(1) The plaintiff is to file and serve an affidavit explaining delay in filing an amended statement of claim on or before 23 April 2002.
(2) I stand the matter over until 30 April 2002 at 10.00 am before me.
(3) Leave is not granted to the filing of an amended statement of claim which includes paragraphs 31 and 33. Subject to the explanation for delay being satisfactory, leave will be granted to file and serve the balance of the proposed amended statement of claim.
(4) Costs are reserved.”

3 Then, on 24 May 2002, the master made this order:

“I grant leave to the plaintiff to file and serve the amended statement of claim (excluding paragraphs 31 and 33) on or before 7 June 2002.”

4 Each appellant has submitted that the Master erred in allowing the respondent to rely upon the amended statement of claim but the causes of action pleaded against each appellant are different and the appeals call for discrete consideration.

The appeal of ATSIC

5 The grounds of appeal by this appellant were expressed as follows in the notice of appeal:

“1. The Master should have applied the law, such as that set out in paragraph 10 of her decision of 19 March 2002, to the proposed pleading and found that the pleading was defective, embarrassing and causative of prejudice and delay.
2. The Master should have found that the proposed Amended Statement of Claim did not disclose a reasonable cause of action.
3. The Master should not have been satisfied with the explanation for the delay.”

6 It is convenient to deal with grounds 1 and 2 together. Ground 3 was not argued.

7 The amended statement of claim to which the Master’s orders were directed pleaded claims against ATSIC in contract and in negligence.

8 In para 6 of the pleading it is asserted that the plaintiff was the principal of a panel beating and spray painting business at Evans Head conducted in the name of Evans Head Refinishers Pty Limited and that motor vehicles were repaired and aircraft were painted. Then the pleading asserts that the company and the plaintiff entered into an agreement with the Department of Employment, Education and Training (DEET) “for the plaintiff to receive a management traineeship”.

9 Because of the nature of the appellant’s complaints concerning this pleading, it is appropriate to set out what the pleader describes as “Particulars of the Agreement”. They “included” the following:

“7.1 The agreement was for a term of four years.
7.2 DEET would support the Plaintiff financially through his business for the term of the agreement with payments increasing depending on the level of training achieved by the Plaintiff.
7.3 DEET would provide financial support for the Plaintiff to undertake further study and training.
7.4 The Plaintiff would undertake further study and training.
7.5 The Plaintiff would report his participation in the program and comply with the conditions of the program.”

10 It is asserted in para 9 of the pleading that DEET transferred “the management and control of the Management Traineeship to ATSIC” in or about May 1992 and then in para 10 the pleader asserts:

“The Plaintiff did not consent to the transfer of the Management Traineeship to ATSIC and neither was the Plaintiff notified of the transfer by DEET.”

11 In para 11 it is asserted that ATSIC accepted the transfer of the management and control of the relevant traineeship and later, in para 13, the respondent has pleaded reliance on the payments received by DEET “as an essential part of his financial business plan in relation to the panel beating and spray painting business he operated at Evans Head.”

12 Then, in para 15 and later paragraphs, there is reference to the plaintiff moving his business from Evans Head to Armidale airport and para 15 shifts to the nature of the claim brought against DSC, the other appellant.

13 However, the pleader reverted to the case against ATSIC in para 28 and in the particulars set out under that paragraph stated:

“ATSIC by its employees, officers and agents breached the agreement between itself and the Plaintiff by:
PARTICULARS OF BREACH OF CONTRACT
28.1 Failing to implement the terms of the traineeship transferred from DEET.
28.2 Failing to manage and control the traineeship in accordance with the conditions agreed to by DEET.
28.3 Failing to financially support the Plaintiff and his business for the term of the four year agreement as required under the terms of the traineeship.
28.4 Failing to pay the Plaintiff in a timely manner the payments required as and when they fell due.
28.5 Changing the criteria applied to the approval of monies payable to the Plaintiff.
28.6 Changing the criteria against which the performance of the Plaintiff was to be measured.
28.7 Failing to communicate with the Plaintiff in a timely manner in relation to the management and control of the traineeship.”

14 The master summarised relevant principles of pleading in para 10 of the judgment of 19 March 2002. None of the parties challenges that summary of principles and I repeat it here:

“A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. If it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay, the whole or part of it may be struck out. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at p 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75. It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated - see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114; though in some circumstances to plead a conclusion may be to plead a material fact - see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (FCA unreported, French J 3 September 1991). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. It must be apparent on the fact of the document that the facts pleaded, if proved, would establish the cause of action relied upon - see H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246. It is not a function of particulars to take the place of the necessary averments in the statement of claim. Trade Practices Commission v David Jones (Australia) Pty Ltd at 114. Further a pleading must state the facts that if not specifically pleaded might take the other party by surprise. – see also Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; Truth About Motorways Pty Ltd v Macquarie Infrastructure Ltd [1998] ATPR 41-633; and Northam & Anor v Favelle Favco Holdings (unreported, Bryson J, 7 March 1995).”

15 It has been submitted that the respondent’s pleading offends the above statements of principle and a number of criticisms have been made by ATSIC to the pleading of the case in contract against it.

16 It is submitted that there has been a disregard for the requirement that the pleading contain a statement of the facts to be relied upon in summary form concerning the contract asserted. When one looks at para 7 the pleader does not assert whether the contract was oral or written, or when it began, or when it was to end. The particulars under para 7 are replete with uncertain assertions such as DEET “would support the plaintiff financially…with payments increasing depending on the level of training achieved” (7.2); DEET would provide “financial support for the plaintiff to undertake further study and training” (7.3). A like vague assertion is made in 7.4.

17 Then in para 10 it is pleaded that the respondent did not consent to the transfer of the management traineeship to ATSIC but in para 11 it is asserted that ATSIC accepted the transfer of the management and control. It is, of course, well settled that the substitution of a new contract or novation requires the consent of the parties: see Cheshire & Fifoot’s Law of Contracts, 7th Aust. ed., pp 310-311. It is by no means clear, absent the respondent’s consent, just what case the respondent would advance for the existence of an enforceable contract by him against ATSIC.

18 Nor does the pleading concerning the alleged breach of contract by ATSIC measure up to what I perceive to be the basic requirements of pleading in the circumstances of this case. I regret that I am unable to agree with the decision of the Master in this regard. There is no statement of the facts to be relied upon as giving rise to the alleged breach of the agreement by ATSIC. Paragraph 28 does no more than to assert in general terms breach of the agreement. The respondent cannot make good deficiencies in the facts pleaded merely by referring to particulars of breach: see Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109. In any event, the particulars of breach set out under para 28 are so general as not really to amount to particulars at all.

19 In my opinion the case as pleaded in contract is altogether inadequate and ATSIC ought not to be called upon to plead to it.

20 I turn to the claim against ATSIC in negligence. This is to be found in paras 29 and 30:

“29. Further and in the alternative, ATSIC owed a duty of care to the Plaintiff in relation to the management and control of the traineeship entered into by the Plaintiff.
30. In breach of its duty of care to the Plaintiff ATSIC failed to manage and control the traineeship in a manner consistent with their obligations under the traineeship.”

21 In para 29 above the pleader has failed to assert the facts or circumstances attracting the duty of care and in para 30 has failed to assert the facts or circumstances giving rise to a breach of that duty. When one looks at the particulars of negligence set out under para 30, the particulars are altogether too broad to enable the appellant to appreciate the nature of the case which it was required to meet. In my view this deficiency is to be found in each of the particulars. Particular 3 is a good illustration: “Failing to make payments due to the plaintiff in a timely manner.”

22 Once again then I consider that ATSIC should not be required to plead to the claim in negligence as it is presently expressed.

23 In para 32 a general assertion of economic loss and damage is made:

“32. As a result of the breaches of contract, duty…pleaded in respect of the Second and Third Defendants, the Plaintiff has suffered economic loss and damage which will be particularised at a later date.”

24 The claim made in negligence against ATSIC is for pure economic loss and as the Master observed this is an area in which the law is in the process of evolving. It is in this context that para 32 is to be considered. Once again the pleading does not alert the pleader to the manner in which the plaintiff is going to seek to make out the claim for economic loss and, once again in my view, the content of this paragraph does not measure up to the requirements of Pt 15 r 7 of the Rules of Court.

25 I propose therefore to allow the appeal by ATSIC, having come to the conclusion that the statement of claim against ATSIC must be struck out. The respondent will be afforded the opportunity of presenting submissions and, indeed, evidence in support of any application to be permitted yet another opportunity to replead. I shall return to this presently.

The appeal of DSC

26 In the notice of appeal filed by DSC the following grounds were stated:

“1. The learned Master should have held that the alleged cause of action for breach of contract pleaded against the appellant was statute barred.
2. Further or alternatively the learned Master should have held that the pleading of an alleged oral agreement between the respondent and the appellant was untenable and bound to fail in view of the fact that the same parties had entered into a written agreement which was inconsistent with the alleged oral agreement.
3. The learned Master should have held that the amended statement of claim was defective, embarrassing and perplexing.
4. sufficiently plead material facts said to constitute cause of action for breach of contract and further failed to plead material facts which if proved would establish a justiciable cause of action against the appellant [sic].”

27 Ground 4 has not been fully stated. I treat it as intended to commence with the words: “The learned Master should have held that the amended statement of claim was defective because it failed to.” The hearing on the appeal proceeded on this basis. In his oral submissions Mr McGovern, on behalf of this appellant, addressed grounds 3 and 4 first and the consideration of these grounds, of course, requires study of the pleading.

28 It appears from paras 15, 18, 20, 21, 22, 23, 25 and 26 that the respondent claims that there was some agreement with DSC pursuant to which he conducted his business painting motor vehicles and aircraft and “other aviation related equipment” in a hangar provided by DSC at Armidale airport. His grievance with DSC stems from DSC entering into possession of that hangar and also, perhaps, from some disturbance of the respondent’s business before that.

29 The appellant has submitted that the pleading offends against the statements of principle expressed by the learned Master in the course of her judgment in the passage which I set out earlier. The Master concluded that the pleading against this appellant was sufficient, but I am persuaded by Mr McGovern that such conclusion was erroneous.

30 It is, of course, fundamental that the claim be pleaded in such a way as to alert DSC to the case it is required to meet and the requirements upon the pleader to state in a summary form the facts relied upon is intended to address this fundamental proposition. Analysis of the pleading leads me to conclude that this requirement has not been met.

31 Paragraph 15 purports to plead the agreement:

“On or after January 1993 the Plaintiff agreed with DSC to enter into an agreement with DSC for the lease of a parcel of land at Armidale Airport in the State of New South Wales, the terms and conditions of which were as follows:”

32 Thereafter, under the heading “Particulars” appears the following:

“15.1 The Plaintiff would move his business from Evan’s Head to Armidale Airport.

15.2 DSC would lease the Plaintiff a parcel of land being Lot 9 Armidale Airport on which the Plaintiff could operate his business painting motor vehicles and aircraft.

15.3 That the said lease would include an option for the Plaintiff to renew the lease.

15.4 DSC would construct a hanger on Lot 9 and provide finance to the Plaintiff for the cost of the hangar at an interest rate about the 180 day Bank Bill rate.

15.5 DSC would approve the Plaintiff operating his business painting motor vehicles, aircraft and other aviation related equipment.

15.6 That DSC would not object to the Plaintiff erecting signage promoting his business with the signage visible to the main road near the airport.

15.7 That the Plaintiff would continue receiving payments from ATSIC.”

33 Paragraph 15 does not contain a statement of the material facts upon which the respondent relies to establish the agreement sued upon and what is set out under the heading “Particulars” cannot be used to rectify such omission: see Trade Practices Commission v David Jones (Australia) Pty Limited & Ors (supra).

34 Furthermore, what is asserted in para 15 is an agreement to enter into an agreement. An agreement of such a nature is unenforceable: see Booker Industries Pty Limited v Wilson Parking (Queensland) Pty Limited (1982) 149 CLR 600 per Gibbs CJ, Murphy and Wilson JJ at 604-605; and Australis Media Holdings v Telstra Corporation (1998) 43 NSWLR 104 per Mason P, Beazley and Stein JJA at 126-127. Mr Howen, for the respondent, submitted that the respondent was not relying on an agreement to enter into an agreement, but rather upon an oral agreement. If that be so, this is not how the pleading is expressed, and, indeed, the language employed in the particulars under para 15, such as “would move”, “would lease”, “lease would include”, “DSC would construct” is apt expression for an agreement to enter into an agreement as opposed to an agreement already enforceable.

35 Whilst it would seem that the respondent wants to rely upon a lease agreement, there is no statement in the pleading as to the commencement date or the term of the lease. It is common ground that although the pleading states four breaches, the only breaches which the Master permitted to be relied upon were those set out under the heading “Particulars of Breach of Contract” under para 31:

“31.2 Failing to allow the Plaintiff to operate his business without hindrance in respect of the painting of aviation related vehicles and equipment.
31.4 Taking possession of the hangar and land occupied by the Plaintiff.”

36 Once again the pleading is deficient in the failure to state the material facts concerning the alleged breaches. Before going to the particulars themselves, all the pleader conveys to the reader in para 31 is the bald assertion of breach: “DSC by employees, officers and agents breached the contract between itself and the plaintiff.”

37 Even if the expression in the particulars was impermissibly considered as a statement of material facts, 31.2 is altogether insufficient to alert the reader to the precise nature of the complaint. Earlier, in para 25, the pleader states:

“25. In November 1995 DSC through its officers, directed the Plaintiff to stop work on an aviation related vehicle upon which the Plaintiff was working for a customer.”

38 Is this what 31.2 is addressing? This is not made clear.

39 31.4 contains a complaint of taking possession of the hanger and land. Perhaps this is to be read in conjunction with para 26:

“On or about 8 February 1996 DSC, without the consent of the Plaintiff, entered into possession of Lot 9 Armidale Airport.”

40 Even if it is to be so read, there is nothing in the pleading to convey that such action was in breach of the lease, the term of which has nowhere been pleaded.

41 I have come to the conclusion that grounds 3 and 4 have been established.

42 I turn to ground 1.

43 Mr McGovern submitted that any claim the respondent may otherwise have would be barred by the Limitation Act.

44 Consideration of this ground attracts attention to Pt 20 r 4 of the Supreme Court Rules:

“(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
(2) (Repealed)
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.
(4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.
(5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.
(5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim.”

45 The statement of claim in its original form was filed on 7 October 1999. Any amendment allowed by the Master could only relate back to the date of the filing of the original statement of claim: Pt 20 r 4(5A) above. It was an exercise in futility, Mr McGovern submitted, to allow an amendment to plead a cause of action barred by statute as at 7 October 1999. A cause of action for breach of contract accrues at the time when the breach occurs, so that following amendment of the pleading, the respondent could only maintain an action for any breach occurring within six years prior to 7 October 1999.

46 Whilst I accept that submission, I am not persuaded that any claim the respondent may have against DSC is necessarily barred by statute. Paragraph 23 of the amended statement of claim asserts that the respondent had an official opening of his business at the airport on 3 December 1993, so that any alleged breaches occurring after that date would have been within six years of the filing of the original statement of claim. In para 25 it is alleged that DSC directed the respondent to stop work on an aviation related vehicle in November 1995, so if this is an alleged breach then that event also took place within six years of 7 October 1999. Paragraph 26 alleges the entry into possession by DSC on 8 February 1996. This event again occurred within the six year period.

47 Mr McGovern submitted that there was a further way in which the Master erred in considering the issue under the Limitation Act. Part 20 r 4(5) provides for leave to amend “having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts”. Mr McGovern submitted that the claim in contract as expressed in the amended statement of claim did not arise out of the same or substantially the same facts as the claim expressed in the original pleading. The Master rejected that submission (in para 57 of the judgment of 19 March 2002):

“The original statement of claim pleads the existence of a lease agreement between DSC and the plaintiff, as well as a deed of agreement between DSC and the plaintiff for the construction and purchase of a hangar on the leased land. The original statement of claim filed 7 October 1999 pleads that DSC representatives unlawfully entered the plaintiff’s premises at Armidale Airport and unlawfully removed possessions belonging to the plaintiff. In relation to this alleged breach of contract it is my view that the new cause of action in breach of contract arises out of the same or substantially the same facts as those originally pleaded.”

48 The success of Ground 4 of DSC’s grounds of appeal means that the agreement which the respondent has sought to assert has not been sufficiently defined, but I am not persuaded that if the pleading had sufficed any action sought to be based on breach of such agreement would not arise out of the same facts as those pleaded in 1999.

49 The requirements of Pt 20 r 4(5) would need to be revisited if the respondent is permitted to and does seek to replead his claim.

50 I turn finally to ground 2.

51 There was in evidence before the Master a lease document executed by DSC as lessor and the respondent (and another) as lessees. The lease was expressed to be for a term of twenty years commencing on 1 December 1993. That lease provided inter alia:

“2.6 To use the demised premises for the purposes of aircraft maintenance, repair and storage.”

52 Mr McGovern submitted that the existence of the above provision in the lease was inconsistent with the assertion of an oral agreement providing for the respondent the opportunity to operate a business “in respect of painting of aviation related vehicles and equipment” (see para 35 above).

53 Mr McGovern further drew attention to the covenant expressed in para 4.1 of the lease which provided:

“4.1 If any rent shall be fourteen (14) days in arrears (whether such rent shall have been legally demanded or not), or if the Lessee shall omit to observe or perform any of the covenants on the part of the Lessee to be observed or performed, the Lessor may re-enter upon the demised premises or upon any part thereof in the name of the whole, and this lease shall thereupon determine, but without prejudice to any claim, right or action or remedy which the Lessor may have against the Lessee in respect of any breach of these covenants.”

54 It was submitted that the existence of that covenant was inconsistent with an assertion of the alleged breach of contract particularised in para 31.4 (again see para 35 above).

55 Mr McGovern cited Hoyts Pty Limited v Spencer (1919) 27 CLR 133. In particular Mr McGovern relied upon what was said by Knox CJ at 138-139:

“From the authorities referred to during the argument the following propositions may be deduced, viz:- (a) When parties negotiate an agreement by parol and subsequently reduce it to writing, the writing constitutes the contract (Knight v Barber 16 M & W 66 at 69), or at any rate is conclusive evidence of its terms (Wake v Harrop 1 H & C 202), subject, of course, to the right of either party to proceed for its rectification or rescission on sufficient grounds. (b) A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, is valid and enforceable even though the main agreement be in writing, provided the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement.”

56 I am not attracted by the inconsistency argument having regard to the context in which it is being raised. I do not consider there is necessarily an inconsistency between what has been asserted by way of breach in particular 31.2 and the nature of the user expressed in para 2.6 of the lease agreement. The respondent may ultimately come to grief on this inconsistency point but putting to one side for the moment the inadequacy of the pleading, I do not regard the inconsistency point as being one which ought to prevent the plaintiff from pleading breach of a contractual obligation such as that which he apparently intended to assert.

57 The other breach of contract alleged is that DSC took possession of the hangar. What does emerge from the lease, if this governed the relationship between the respondent and DSC, is that the lease had many years to run at the time of the alleged entry into possession. It may be that such entry would ultimately be proved to have been justified by the terms of the written lease but this would be a matter for evidence and a matter to be proved, presumably by DSC.

58 In my opinion, this ground has not been established.

59 However, for the reasons stated above, I propose to allow the appeal of DSC and to order that the pleading as against that appellant be struck out.

Proposed orders

60 It follows from the above statement of reasons that each of these appellants is to succeed on this appeal and that the Court should order that the statement of claim be struck out. The question arises then as to whether the respondent ought to be given leave to replead and, if so, within what period.

61 When I refused the respondent an adjournment on Thursday last, I indicated that if the appeals succeeded he would be given the opportunity of placing evidence before the Court in support of an application to be afforded the opportunity to replead. I propose to afford the respondent that opportunity now before I make formal orders disposing of these appeals, and with this in mind to make directions which I set out below.

Directions

62 1. The respondent is to file and serve within fourteen days any affidavit or affidavits supporting an application to be permitted to replead his statement of claim.

2. The matter is to be listed for further directions and/or argument before me on Tuesday 10 September 2002.

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Last Modified: 08/14/2002