Mead Corporation v Carbonless Papers (Australia) Pty Ltd
[2002] WASC 258
MEAD CORPORATION -v- CARBONLESS PAPERS (AUSTRALIA) PTY LTD & ORS [2002] WASC 258
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 258 | |
| Case No: | CIV:1606/1996 | 4 NOVEMBER 2002 | |
| Coram: | HASLUCK J | 7/11/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MEAD CORPORATION CARBONLESS PAPERS (AUSTRALIA) PTY LTD (ACN 053 402 038) THOMAS LESTER EVERETT ROBIN ASCOTT |
Catchwords: | Practice and procedure Application for leave to amend defence and counterclaim Application made shortly before trial Amendments directed to relief by way of counterclaim Proposed amendment directed to the restraint of proceedings in a foreign jurisdiction Whether amendments should be allowed in these circumstances Whether proceedings in foreign jurisdiction should be characterised as vexatious and oppressive Turns on own facts |
Legislation: | Nil |
Case References: | Allstate Life Insurance Co v ANZ Banking Group (No 1) (1996) 64 FCR 1 CSR Ltd v Cigna Insurance Australia Ltd (1996) 189 CLR 345 Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 237 National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 Baume v Commonwealth (1906) 4 CLR 97 Cook Inc v World Medical Manufacturing Corp [1999] FCA 1333 Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 165 CLR 197 Voth v Manildra Pty Ltd (1990) 171 CLR 538 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CARBONLESS PAPERS (AUSTRALIA) PTY LTD (ACN 053 402 038)
First Defendant
THOMAS LESTER EVERETT
ROBIN ASCOTT
Second Defendants
Catchwords:
Practice and procedure - Application for leave to amend defence and counterclaim - Application made shortly before trial - Amendments directed to relief by way of counterclaim - Proposed amendment directed to the restraint of proceedings in a foreign jurisdiction - Whether amendments should be allowed in these circumstances - Whether proceedings in foreign jurisdiction should be characterised as vexatious and oppressive - Turns on own facts
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Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Ms N Johnson QC & Mr C S Gough
First Defendant : Mr D M Stone & Ms G S Pitt
Second Defendants : Mr D M Stone & Ms G S Pitt
Solicitors:
Plaintiff : Minter Ellison
First Defendant : Williams & Hughes
Second Defendants : Williams & Hughes
Case(s) referred to in judgment(s):
Allstate Life Insurance Co v ANZ Banking Group (No 1) (1996) 64 FCR 1
CSR Ltd v Cigna Insurance Australia Ltd (1996) 189 CLR 345
Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 237
National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209
State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Case(s) also cited:
Baume v Commonwealth (1906) 4 CLR 97
Cook Inc v World Medical Manufacturing Corp [1999] FCA 1333
Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 165 CLR 197
Voth v Manildra Pty Ltd (1990) 171 CLR 538
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1 HASLUCK J: The defendants have applied for leave to amend their defence and counterclaim in terms of a minute dated 1 November 2002 ("the 1 November minute"). The application for leave to amend was one of several matters brought before the Court by a chamber summons dated 24 October 2002 in respect of proceedings that have been listed for trial for 10 days commencing Monday, 18 November 2002. The proximity of the trial is a matter to be taken into account in dealing with the application.
The Application
2 The defendants' chamber summons was brought on for hearing initially on Monday, 28 October 2002. It was then adjourned on the application of the defendants as a consequence of certain events that happened at about that time. In addition, I was of the view that resolution of the matters before me would be facilitated by the exchange of written submissions.
3 The chamber summons was brought on for hearing again on Monday, 4 November 2002 by which time it was apparent that the only matter remaining in issue was the application for leave to amend. This had to be dealt with in the context of a trial that was due to commence in 14 days' time.
4 Broadly described, the defendants seek to add to their counterclaim a plea to the effect that the plaintiff, Mead Corporation, should be restrained from prosecuting certain recently commenced proceedings in Ohio in the United States of America. The defendants say that the Ohio proceedings are vexatious and oppressive. It is immediately apparent that if leave to amend is granted in the terms sought this will affect the way in which the parties prepare for the forthcoming trial.
5 The circumstances giving rise to the application for leave to amend at such a late stage of the proceedings are partly reflected in the judgment I handed down recently on 16 October 2002 concerning the use to be made of certain documents discovered by the defendants. The judgment in question, Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 237, is a matter of record and I will not repeat everything I said on that occasion. However, in order to understand the issue that has now arisen it will be useful to look briefly at some of the matters leading up to the present application.
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Background
6 Mead is a company incorporated in the United States of America. For many years it has been the exclusive manufacturer and distributor of a range of chemical carbonless coating materials. It also provides technical and other supporting services to facilitate their application and usage.
7 It seems that over 10 years ago Mr Ascott on behalf of companies associated with him including Carbonless entered into various agreements with Mead for the supply of certain products. Information made available to him by Mead was to be held in confidence. As a consequence of the negotiations, Carbonless eventually acquired a coater for the manufacture of carbonless paper in Western Australia using Mead's system and materials.
8 It is now a matter of acute controversy between the parties as to whether the coater was sufficient for the intended purpose and as to whether Mead can be held responsible for certain representations which are said to have caused Carbonless loss and damage.
9 In 1996 Mead commenced legal proceedings in the District Court of Western Australia to recover the sum of $109,998.56(US) which was said to be due in respect of coating materials delivered to Carbonless.
10 The matter was moved into the Supreme Court and consolidated with other proceedings when it became apparent that Carbonless intended to advance a counterclaim for damages referable to Mead's alleged involvement in the supply of the coater. The matter principally in controversy is now reflected in the defendants' counterclaim.
11 As I noted in my previous judgment, the parties attended to discovery but, for one reason or another, it seems that discovery was provided by the defendants in a piecemeal way.
12 In or about the months of July and August 2001 the legal advisers to Mead came across certain documents suggesting that Carbonless may arguably have been involved in providing information and chemicals confidential to Mead to other manufacturers. Some of the documents bearing upon this issue are said to have come to light as a consequence of the late discovery of documents by Carbonless in the present proceedings.
13 The action had been listed for trial in August 2001. The principal witness for Mead travelled to this State in anticipation that the trial would proceed. The trial was eventually adjourned upon the application of the
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- defendants owing to the unavailability of counsel. This was not due to any default on the part of the defendants or their advisers. Nonetheless, the application for an adjournment was accompanied by vigorous debate concerning the costs of the adjournment and late discovery of documents.
14 In my view, it is fair to say that as a consequence of these events, thereafter, both parties and their legal advisers were on notice that procedural issues and directions relating to the same would be dealt with rigorously with a view to averting any subsequent adjournment of the trial.
15 It was in this context that various exchanges between the parties took place concerning the discovery of further documents. As appears from the affidavit of Hermien Bouman sworn 21 November 2001, by letter dated 12 September 2001 the solicitors for Mead advanced a contention, upon the basis of the recently discovered documents, that the defendants were in breach of their confidentiality obligations. They foreshadowed the advancement of a claim against the defendants in respect of this matter.
16 Two months later, by letter dated 12 November 2001 the solicitors for Mead asserted that as a consequence of the alleged breach of confidentiality Mead was in the process of issuing proceedings in Ohio against Carbonless. They foreshadowed a claim for damages which would include reliance upon American legislation relating to breach of trade secrets. It was their understanding that the action would include claims for damages, statutory punitive damages (calculated as a multiple of actual damages) and exemplary/punitive damages. Their understanding was that proceedings would be filed in the next few days.
17 In my previous judgment, I described the nature of the confidentiality arrangements. The effect of a written agreement between the parties was that any dispute between the parties was to be resolved in accordance with the laws and within the jurisdiction of the Court of the State of Ohio in the United States of America. Mead is of the view that the legal regime in Ohio will provide greater relief than similar laws in Australia. Such a view is supported by the affidavit of Scott Allen King.
18 By letter dated 14 November 2001 the solicitors for Carbonless protested the use of documents discovered in the present proceedings to ground a cause of action in Ohio. They characterised the proposed legal proceedings as vexatious and oppressive on the grounds that it is not
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- appropriate for a matter in controversy between two parties to be litigated before two Courts at the same time.
19 The solicitors for Mead refused to provide an undertaking that the proposed proceedings in the United States would not be commenced. It was against this background that the defendants felt obliged to file and serve a chambers summons for interlocutory injunction dated 21 November 2001 with a view to obtaining orders restraining the institution of legal proceedings in Ohio. The grounds of the application included reference to an alleged misuse of documents discovered in the Perth proceedings and asserted that the proposed Ohio proceedings were vexatious and oppressive.
20 It appears from the Supreme Court file that when the application for an interlocutory injunction was brought on for hearing before Templeman J on 29 November 2001 the matter was adjourned to a special appointment. Counsel for Mead indicated that the proposed proceedings in Ohio were not likely to be commenced until leave was sought to use documents discovered in the Perth proceedings in Ohio. Mead sought leave by summons dated 22 March 2002 and thereafter the parties seem to have assumed that both matters would be dealt with at the same special appointment. This is reflected in their written submissions. When the matter came before me in Chambers on 12 June 2002 it was adjourned so that the defendants could file an answering affidavit.
21 I have not seen anything to suggest that Mead ever gave any indication that it had abandoned its stated intention to pursue a claim for damages in Ohio in respect of the alleged breach of confidentiality. The parties have continued to file and serve affidavits bearing upon the issues to be addressed in the Ohio proceedings including an affidavit by the first-named second defendant sworn 19 August 2002.
22 It has remained open to the defendants since November 2001 to press this matter to a conclusion and to ascertain whether the alleged breach of confidentiality remained a live issue. The exchanges between the parties during the course of 2002, and certainly in more recent times, clearly establish that it did remain a live issue. Nonetheless, the defendants took no decisive step to restrain such a suit or to raise the issue in their pleadings.
23 I will not traverse the pleadings in the Perth proceedings CIV 1606 of 1996 in their entirety. However, it will be apparent from my earlier description of the pleadings that the pleaded issues do not appear to
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- embrace an alleged breach of confidentiality arrangements. The prospective proceedings in Ohio involved the same parties but, prima facie, they did not appear to cover the same ground.
24 In comparatively recent times the solicitors for Mead renewed their application for leave to use the documents discovered in these proceedings CIV 1606 of 1996 for the purpose of any action that Mead might commence in Ohio. This led to the defendants bringing on for hearing their previously adjourned application for an anti-suit injunction dated 21 November 2001. Both matters were referred to me for hearing on 7 October 2002.
25 There appears to be no dispute that at the hearing before me on 7 October 2002 counsel for the defendants did not press for an interlocutory injunction in the terms reflected in the chamber summons dated 21 November 2001. Instead, he made it clear that the orders he sought would be confined to the question of discovery and he tendered a minute of proposed orders bearing upon that issue alone.
26 Accordingly, as appears from par 3 of my previous judgment, I noted that in response to Mead's application for leave to use the documents in question, the defendants sought an injunction restraining the plaintiff from using the documents. In effect, at that stage, six weeks prior to the listed trial date, the defendants withdrew their application for an interlocutory anti-suit injunction, although it was quite clear that the proposed Ohio proceedings remained a live issue, for Mead was seeking a special order concerning the use of documents in the proposed proceedings. The defendants did not foreshadow any intention to amend their pleadings to include an anti-suit claim.
27 As appears from par 61 of my previous judgment, I was persuaded that the plaintiff should be granted leave to use the subject documents. It followed that the Carbonless application for an injunction restraining use of the documents was refused. I observed that, in my view, there had been no default or inordinate delay upon the part of Mead in raising the breach of confidentiality issue.
28 It is apparent from the narrative that I made no ruling in my previous judgment upon the question of whether Carbonless should be granted an anti-suit injunction. That was not the issue presented to me. It is also apparent that for many months it was open to the defendants to press for clarification as to whether Mead would commence proceedings in Ohio in respect of the confidentiality arrangements. It remained open to them to
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- press for an interim injunction to restrain such a suit, or to raise the issue in their pleadings. No such steps were taken. When an opportunity was presented to the defendants to raise the issue at the hearing on 7 October 2002, being six weeks or so before the listed trial date, they were not minded to follow that course.
29 It was common ground at the recent hearing before me that on 23 October 2002 Mead commenced proceedings in Ohio. A copy of the relevant statement of claim was handed to me at the hearing.
30 I will not traverse the pleading in detail. However, in essence, the negotiations between the parties are described and reference is made to the confidentiality arrangements. Various claims for relief are then advanced.
31 Of particular significance for present purposes is the plea in par 32 of the Ohio claim that, by disclosing Mead's processes and chemicals, Carbonless allegedly breached its obligations under the relevant agreement. Paragraph 33 contains a plea that Mead has done all that it was required to do under the technology agreement and the supply agreement.
32 The claims for relief are based upon principles of contract and tort. In regard to the first claim for relief Mead claims compensatory damages in at least the sum of $1,701,000(US); on its second claim for relief it claims three times the amount of its compensatory damages in the sum of $5,103,000(US); on its third claim for relief it claims compensatory damages in at least the sum of $1,806,000(US) and punitive damages.
33 I mentioned earlier that the proposed hearing before me on Monday, 28 October 2002 had to be adjourned so that the defendants could consider their position. The matter requiring consideration was the statement of claim in the Ohio proceedings and the question of whether the defendant should seek leave to amend their counterclaim with a view to introducing a plea that Mead be restrained by a final injunction from further prosecuting the Ohio proceedings.
34 This period of reflection led to the defendants formulating their application for leave to amend in terms of the 1 November minute of re-amended defence and counterclaim that I mentioned earlier.
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The Defendants' Position
35 The defendants' 1 November minute pleads in a proposed new par 43 that Mead has instituted judicial proceedings in Ohio. It goes on to say in par 44 that the Ohio proceedings are vexatious and oppressive upon various grounds. The defendants say principally that questions raised by Mead in the Ohio proceedings are part of the same controversy as that raised between the parties in the Perth action CIV 1606 of 1996. It is said further that Mead submitted the controversy to the jurisdiction of this Court and all the relief for which Mead sues in Ohio can be achieved by amending its statement of claim in the present action.
36 Counsel for the defendants supported his application for leave to amend at the hearing before me with various submissions. He was conscious that the application comes late in the day, that is to say, 14 days before the listed trial date, and at a stage where both parties are in the final throes of preparing for trial including the exchange of witness statements and the assembling of bundles of documents. He argued forcefully, however, that the question of an amendment had only arisen because of Mead's decision to institute proceedings in Ohio in recent days and in respect of matters that could be regarded as falling within the controversy embraced by the Perth action.
37 Counsel submitted further that there had been no delay on the defendants' part in raising the question of an anti-suit injunction. He acknowledged that the application for an injunction reflected in the chamber summons filed and served 12 months ago on 21 November 2001 had foreshadowed a ruling upon the matter. However, it was reasonable that the application was not proceeded with because it was not until the Ohio proceedings were actually commenced that there was any real prospect of persuading the Supreme Court in this State to restrain the Ohio proceedings. It was not until the proceedings had been commenced that a sensible comparison of the two claims could be made.
38 It was then said on behalf of the defendants that a comparison of the pleadings revealed that the controversy between the parties in the two sets of proceedings was essentially the same. It might seem at a first glance that the Perth proceedings were concerned with the supply of coating materials and a coater while as the Ohio proceedings concerned the confidentiality arrangements. However, the plea in par 33 of the Ohio claim that Mead was not in default contractually meant inevitably that the issues in the Perth proceedings would have to be canvassed in Ohio.
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39 Counsel for the defendants went on to submit that the proposed amendment was adequate as a matter of form. It raised an arguable case in respect of an issue which the defendants should be at liberty to press. It was open to Mead to deal with the reformulated counterclaim by a responsive pleading, and no specific prejudice had been identified which weighed against leave to amend being granted.
The Mead Position
40 Counsel for the plaintiff opposed the application. She said that the defendants were given clear notice of Mead's intention to commence proceedings in Ohio for breach of confidentiality shortly after the aborted trial in August 2001. This is borne out by the defendants' chamber summons for interlocutory relief dated 21 November 2001.
41 Counsel for Mead submitted further that upon careful analysis the claims being advanced in the respective proceedings were of a different order and should not be characterised simply as the "controversy" between the parties. For this reason, it was said, the claim for an anti-suit injunction was not strong. The proceedings in Ohio could not be described as vexatious and oppressive because the issues were discrete. It was open to the defendants to defend the confidentiality claim in Ohio. Further, it was significant that the contractual arrangements between the parties specifically allowed for a dispute of this kind to be determined in Ohio.
42 Counsel argued in addition that the consequence of leave to amend being granted was that there would then be a prospect of the defendants succeeding in their claim for a permanent restraining order. Such an order would effectively prevent Mead from advancing a claim for breach of the confidentiality arrangements. In these circumstances, Mead would inevitably have to apply for leave to amend its pleading in the Perth proceedings so as to bring into issue the confidentiality arrangements. Amendments of this kind would have to be supported by a wide range of evidence and this would lead inevitably to an application for adjournment of the forthcoming trial.
43 Put shortly, Mead says that the application for leave to amend has been made too late. It should not be allowed, bearing in mind that a refusal of leave will not deprive the defendants of an opportunity to defend the breach of confidentiality claim.
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Legal Principles
44 It will be useful to look briefly at the legal principles bearing upon the matter. The grant or refusal of leave to amend is a matter of discretion but the exercise of that discretion must be taken into account the case management principles reflected in the Rules of the Supreme Court: Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323. However, courts in this country are generally concerned to ensure that when a civil action is tried the parties to the dispute are allowed an opportunity to bring forward all matters in controversy between them.
45 This approach is reflected in the State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 in which the High Court held that while case management principles were a relevant consideration, they could not be used to prevent a party from litigating an issue which was fairly arguable. A party should be permitted to raise an arguable defence provided any prejudice to other parties could be compensated by costs.
46 Kirby J made a number of useful observations concerning the approach to be adopted in regard to pleading amendments. He noted at 169 that amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are that this is the only way in which the true issues and the real merits, factual and legal, can be litigated; that the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events; that the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to the claim; that the oversight was accidental or possibly the outcome of the application to the case of fresh legal minds; that the hearing date is sufficiently in the future to permit a party to meet the amendment. He suggested that departures from a court ordered timetable, whilst relevant, are not decisive.
47 He went on to say that considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing considerations. He noted that the proximity of the hearing is clearly a most important consideration. A party opposing the application to amend 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
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- 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.
48 The principles governing anti-suit injunctions are described in summary form in Seaman's Civil Procedure commencing at par 52.1.23. The Court has jurisdiction to protect the integrity of its own processes by restraining proceedings in a foreign court which interfere with or have a tendency to interfere with proceedings pending before it. That inherent power is not to be restricted to defined or closed categories and is to be exercised when it is necessary to protect the Court's own proceedings or processes. The Court has equitable power to restrain the bringing of proceedings which involve unconscionable conduct or the unconscientious exercise of a legal right no matter where they are brought.
49 In National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 Gummow J indicated that the question for the Court is whether the application for an injunction to restrain foreign proceedings has an equity sufficient to attract the intervention of the Court and thereby to interfere with the legal rights of the respondent to pursue the foreign proceedings.
50 In Allstate Life Insurance Co v ANZ Banking Group (No 1) (1996) 64 FCR 1 Lindgren J was of the view that only in an exceptional case should a court restrain a person from pursuing a right under foreign law to invoke the jurisdiction of a foreign court. The power to restrain foreign proceedings is a power to restrain resort to vexatious and oppressive foreign suits. The primary concern is the integrity of the domestic court.
51 In CSR Ltd v Cigna Insurance Australia Ltd (1996) 189 CLR 345 the High Court noted that the principles governing stay orders and anti-suit injunctions are not the same. The Court's inherent power to protect the integrity of its processes may authorise the grant of an anti-suit injunction. One category of case in which such an injunction may be granted is that involving proceedings in another court, including in a foreign court which are, according to equitable principles, vexatious or oppressive.
52 It appears from the judgment of the Court at 400 that where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate
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- forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the sense that they are productive of serious and unjustified trouble and harassment or are seriously and unfairly burdensome, prejudicial or damaging.
Conclusion
53 Counsel for the defendants submits that I am not required to decide whether the defendants will obtain the injunctive relief they seek in the event of the proposed amendment being allowed. I need only be satisfied that there is an arguable case.
54 I see the matter in a slightly different light. It follows from the reasoning in the State of Queensland v JL Holdings case (supra) that a party should generally be allowed leave to raise an arguable defence, notwithstanding the relevance of case management principles. However, it follows from the reasoning of Kirby J that, where the application to amend is made in close proximity to a trial date the basic precept has to be weighed up with other considerations. In that context one is entitled to ask whether the proposed line of defence will be a complete answer to the claim and whether there is a satisfactory explanation for the delay. I understand that in the exercise of my discretion I am entitled to assess the strength of the proposed plea and to take account of the consequences of the amendment being allowed, or not allowed.
55 It seems to me, having regard to the decided cases, that Mead has prospects of persuading the Court that its commencement of proceedings in Ohio should not be regarded as vexatious or oppressive. The contractual arrangements between the parties specifically allowed for the commencing of proceedings in Ohio. The presence of a prospective claim for breach of the arrangements has only emerged in comparatively recent times.
56 Further, it is not directly apparent in what way the Ohio proceedings might be said to interfere with the processes of this Court in resolving a dispute between the parties which, on the face of it, appears to relate to matters other than the confidentiality arrangements. I am not persuaded that the presence of various matters in issue between the parties can simply be described as the "controversy" between the parties. The dispute concerning the confidentiality arrangements appears to be a discrete issue.
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57 Accordingly, as I address the considerations mentioned by Kirby J, I am conscious that in reviewing the defendants' proposed claim for an anti-suit injunction, I am dealing with a matter that does not appear to be directly related to the matters in dispute in the Perth proceedings as defined by the existing pleadings.
58 I am conscious also that if the application to amend is not allowed, it will still be open to the defendants to defend the claim for breach of the confidentiality arrangements. It cannot be said that refusal of the application to amend will foreclose their right to defend that aspect of the matter. Further, and in any event, my review of the decided cases does not suggest that they are bound to succeed in respect of the new issue they seek to raise even though their case may be characterised as arguable.
59 When I turn to some of the other considerations, I am conscious that the Perth proceedings have been in train for a considerable period of time. It is significant that, of itself, the proposed amendment does not constitute a complete answer to the breach of confidentiality claim or to any claim or contention being advanced by Mead in the Perth proceedings. If the amendment is allowed at this late stage then it seems to me that leave to file a responsive pleading will have to be granted, and Mead will almost certainly be obliged to seek an amendment whereby provision can be made to litigate the alleged breaches of the confidentiality arrangements.
60 Widespread amendments of this kind on both sides are bound to create disarray. In these circumstances, there is a likelihood of one or both of the parties applying for an adjournment of the trial. The proper administration of justice, and the tenor of case management principles, requires that trials be held as soon as reasonably possible, and that every effort is made to ensure that matters listed for trial are heard on the scheduled dates.
61 This brings me back to some observations I made at an earlier stage. Both parties have effectively been on notice since the previous adjournment of the trial in August 2001 that they should be vigilant to ensure that steps were taken promptly to avert the possibility of the trial being adjourned again.
62 It follows from my earlier observations, and from observations in my previous judgment concerning this matter, that there does not appear to have been any particular default on the part of Mead in raising the confidentiality issue some years after the Perth proceedings were commenced. It should also be remembered that Mead submitted a
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- comparatively narrow claim to the jurisdiction in this State, namely, a claim in respect of products sold by Carbonless. The controversy was expanded by the defendants' counterclaim.
63 Documents suggesting that Mead may have a cause of action for breach of the confidentiality arrangements surfaced in a random manner. Mead does not appear to have acted vexatiously or oppressively in foreshadowing the commencement of proceedings in Ohio, being a jurisdiction expressly contemplated by the contractual arrangements made between the parties. It follows from the decided cases that a party is at liberty to commence proceedings in another jurisdiction in respect of a discrete issue, notwithstanding that the proceedings arise out of the same substratum of fact as the existing proceedings. I am of the view that the Ohio proceedings do not contain any cause of action that is brought into issue by the pleadings in the Perth proceedings.
64 Against this background, I consider that if the defendants were resolutely of the view that Mead should not be at liberty to pursue proceedings in Ohio, they should have taken timely steps to bring the application for an anti-suit injunction before the Court, or to amend their counterclaim. In my view, the exchanges in writing between the parties towards the end of 2001 defined the nature of the proposed proceedings with sufficient particularity to allow the issue to be resolved, or for an application for leave to amend of the present kind to have been made at an earlier stage. The foreshadowed proceedings in Ohio appear to correspond essentially to the proceedings actually commenced on 23 October 2002. If the application to amend is not allowed, it remains open to the defendants to resist the breach of confidentiality claim.
65 When I draw these various considerations together, I consider that the application for leave to amend should not be allowed. It is made late in the day and in circumstances which are bound to cause disarray. It is likely to lead to a further adjournment of a trial which has already been adjourned on a previous occasion. I am not persuaded that in the circumstances of this case, where arrangements have already been made for witnesses and experts to give evidence at the forthcoming trial, having regard to the existing pleadings that costs orders or the imposition of other conditions can adequately compensate for the disarray that will ensue if the amendment is allowed.
66 In my view, the defendants have not provided a sufficient basis for the proposed amendment to be allowed at this late stage. I am not persuaded that the proposed plea, albeit arguable, is sufficiently central to
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- the defendants' case to outweigh the opposing considerations which must be brought to account when leave to amend is sought shortly before the commencement of a trial. On the other hand, the amendment that is sought has the potential effect of extinguishing Mead's prima facie entitlement to continue proceedings in Ohio. Disallowance of the amendment may expose the parties to some further expense in litigating the confidentiality issues in Ohio. However, significantly, refusal of the application to amend does not deprive the defendants of whatever defences are available to them concerning that matter.
67 In summary, then, the application for leave to amend will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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