Oswal v Apache Corporation (No 3)

Case [2014] FCA 835


FEDERAL COURT OF AUSTRALIA

Oswal v Apache Corporation (No 3) [2014] FCA 835

Citation: Oswal v Apache Corporation (No 3) [2014] FCA 835 
Parties: PANKAJ OSWAL v APACHE CORPORATION
File number: WAD 389 of 2013
Judge: GILMOUR J
Date of judgment: 8 August 2014
Catchwords: PRACTICE AND PROCEDURE – application for leave to amend defence – r 16.53 of the Federal Court Rules 2011 (Cth) – principles relevant to grant of leave – leave to amend granted
Legislation: Trade Practices Act 1974 (Cth) ss 51A, 52, 82
Federal Court Rules 2011 (Cth) r 16.53
Federal Court of Australia Act 1976 (Cth) s 37M
Cases cited: Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109
Pascoe v Boensch [2009] FCA 1240
S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
University of Sydney v ResMed Limited (No 5) [2012] FCA 232
Date of hearing: 4 August 2014
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: Mr DA McLure
Solicitor for the Applicant: Kennedys
Counsel for the Respondent: Mr SK Dharmananda SC with Mr J Garas
Solicitor for the Respondent: Clyde & Co

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 389 of 2013

BETWEEN:

PANKAJ OSWAL
Applicant

AND:

APACHE CORPORATION
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

8 AUGUST 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The respondent is granted leave to amend its defence in terms of the respondent’s minute of proposed amended defence dated 4 March 2014.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 389 of 2013

BETWEEN:

PANKAJ OSWAL
Applicant

AND:

APACHE CORPORATION
Respondent

JUDGE:

GILMOUR J

DATE:

8 AUGUST 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The respondent, Apache Corporation (Apache), applies for leave to amend its defence. 

  2. Apache relies on the affidavit of Ms Jennifer Anne Thornton sworn 22 July 2014.

    Relevant rules and principles

  3. As pleadings have closed, the respondent requires leave to amend its defence: r 16.53 of the Federal Court Rules 2011 (Cth).

  4. The Court has a broad discretion to grant leave to amend. However, the discretion is to be exercised with regard to the overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA), namely that proceedings are resolved justly, according to law and as quickly, inexpensively and efficiently as possible: University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14].

  5. The principles generally applicable concerning applications for leave to amend are well established and include as the starting point that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided: see, eg

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AGLC
Oswal v Apache Corporation (No 3) [2014] FCA 835
Case
[2014] FCA 835
Decision Date

CaseChat Overview and Summary

The case of Oswal v Apache Corporation (No 3) involved a dispute concerning the proposed amendments to the defendant's defence in a legal action. The applicant raised objections to specific paragraphs, [37(a) and (b)], suggesting they were flawed. The matter was heard and determined in the relevant court. The court was tasked with deciding whether the proposed amendments to these paragraphs were permissible and whether the applicant's objections were valid.

The legal issues before the court revolved around the admissibility of the proposed amendments to the defence. The applicant argued that the changes to paragraphs [37(a) and (b)] mirrored issues previously raised with amendments to paragraphs [36(a) and (b)]. The court had to assess the merits of the applicant's objections and decide if the proposed changes were justified and aligned with procedural fairness and the law.

The court rejected the applicant's submission, finding that the issues with the proposed amendments to paragraphs [37(a) and (b)] were not as pronounced as those previously identified with paragraphs [36(a) and (b)]. The reasoning provided mirrored the court's earlier decision on the amendments to paragraph [36]. Consequently, the court allowed the proposed amendments to paragraph [37]. The decision concluded that Apache Corporation would be granted leave to amend its defence according to the terms outlined in its minute of proposed amended defence. The court also indicated that it would address the issue of costs at a later stage.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant submits that proposed paras [37(a) and (b)] suffer from the same defects as paras [36(a) and (b)]. I reject that submission for the same reason as I did in respect to the proposed amendments to para [36]. I will permit the proposed amendments to para [37]. Conclusion Apache will be granted leave to amend its defence in the terms of its minute of proposed amended defence. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

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