Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2)

[2005] NSWSC 830

CITATION:	Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2) [2005] NSWSC 830
HEARING DATE(S):	15/05/08, 17/08/05
JUDGMENT DATE :	17 August 2005
JUDGMENT OF:	Gzell J
DECISION:	Leave to file amended statement of claim. Hearing vacated. Matter stood into expedition list. Plaintiff ordered to pay defendant's costs thrown away on an indemnity basis forthwith upon agreement or assessment.

CATCHWORDS:	PROCEDURE - Miscellaneous procedural matters - Amendments - Numerous amendments of statement of claim sought at trial - Civil Procedure Act 2005, s 58 - Overriding purpose of just, quick and cheap resolution of real issue to be taken into account - Objects of case management to be taken into account - Whether interests of plaintiff in having all issues determined outweighs other considerations
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Civil Procedure Act 2005
CASES CITED:	Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES:	Phoenix Commercial Enterprises Pty Ltd - Plaintiff The City of Canada Bay Council - Defendant
FILE NUMBER(S):	SC 1483/04
COUNSEL:	Dr R R I Harper SC - Plaintiff Mr B Coles QC/ Mr L Aitken - Defendant
SOLICITORS:	Garland Hawthorn Brahe Solicitors Abbott Tout Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 17 AUGUST 2005

1483/04 PHOENIX COMMERCIAL ENTERPRISES PTY LTD v CITY OF CANADA BAY COUNCIL (NO 2)

EX TEMPORE JUDGMENT

1 I have before me an application for leave to amend the statement of claim in this matter. The application comes at a very late stage in the proceedings. The matter was set down for trial before me for 8 days commencing on Monday, 15 August 2005. On that day, an application was made on behalf of the plaintiff for an adjournment until today, which was granted.

2 There are numerous amendments in the proposed document. Some of them can be explained relatively easily. There was an action by the plaintiff against a second defendant that was dismissed by order of an Associate Justice. Many of the amendments are addressed to removing allegations against the former second defendant.

3 Some of the areas of amendment are covered by evidence already put on in an affidavit by Mr Agresta. But there are other amendments that raise new issues: paragraph 13A and following raises an allegation of unilateral mistake; paragraph 19A and following raises estoppel based on reliance upon representations; paragraph 26A and following raises a lack of authority of officers of the Council to bind the Council.

4 In other respects, new issues are raised that are said to be pure matters of law. For example, paragraph 25A and following raises allegations of implied terms. But it is also alleged that the Council breached the implied terms and that allegation may require some investigation by the defendant notwithstanding that counsel for the plaintiff indicated that he did not intend to adduce any additional documentary or oral evidence, except to make good objections to affidavits, if leave to adduce oral evidence was granted.

5 In opposition to the application, it was pointed out that the effect of the amendments, taken singularly, might not give rise to an immediate and obvious claim to prejudice, but taken cumulatively, they might well do so. Further, those areas that did require additional examination of factual background might give rise to an indication of prejudice, by reason of officers of the Council no longer being available to give evidence. It was submitted that if leave was granted to file the amended document, it should be on terms that no further evidence was called for the plaintiff.

6 Paragraph 12D raises a new issue that the Council unreasonably withheld consent to a matter. That requires factual investigation by the defendant. Paragraph 13A and following raising unilateral mistake, requires an investigation into the knowledge, if any, of Council officers of any misunderstanding on the part of the plaintiff, and examination of whether those Council officers stood by, allowing the plaintiff to continue in its state of ignorance. Paragraph 19A and following, raising the new estoppel issue, needs to be investigated by the defendant and, likewise, with respect to paragraph 25B, the new allegation of breach of an implied term.

7 The first defendant indicated that it will object to portions of the affidavit of Mr Agresta and that it will argue that the evidence put on by the plaintiff is insufficient to ground some of the new bases for relief. But, nonetheless, the defendant should be in a position to conduct requisite investigations because it may fail in those two areas of opposition and, if it does, it will be at risk.

8 Paragraph 27A and following, alleging that the general manager had no authority, requires investigation and the question of ratification may arise with respect to that issue.

9 Paragraph 30C alleges that the Council permitted further advertising in its area. While investigation of that issue may be short and may reveal that no approval was given, nonetheless, the investigation should be carried out.

10 The allegation with respect to the Trade Practices Act 1974 (Cth), does not allege that the Council is a trading corporation. No doubt it is the intention of the plaintiff to carry out extensive cross-examination of the officers of the Council in an attempt to establish that it was acting not merely as a normal local authority. The defendant is entitled to investigate those matters rather than being required to deal with them "on the run.”

11 The defendant has indicated that should I grant leave to file the amended statement of claim, it will seek an adjournment.

12 The principle to be considered when applications such as these are before the Court was said to be the justice of the case in Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146. In that case, the High Court considered that the Federal Court’s case management principles should not have outweighed the interests of justice between the parties.

13 The Civil Procedure Act 2005, came into operation on Monday 15 August 2005. Relevantly for present purposes, s 58(1) provides that in deciding whether to make any order or direction for the management of the proceedings, including any order for the amendment of a document, or any order granting an adjournment, the Court must seek to act in accordance with the dictates of justice. Section 58(2)(a) provides that, for the purpose of determining what the dictates of justice are in a particular case, the Court must have regard to s 56 and s 57. The former states that the overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The latter states that to that end, proceedings are to be managed having regard to the objects of just determination, efficient disposal of business, efficient use of resources and timely disposal at an affordable cost.

14 In addition to those matters, the Civil Procedure Act 2005, s 58(2)(b) provides that the Court may have regard to the degree of difficulty to which the issues in the proceedings give rise; the degree of expedition with which the respective parties have approached the proceedings; the degree to which any lack of expedition arose from circumstances beyond the control of the parties; the degree to which the respective parties fulfilled their duty to assist the Court in its overriding purpose; the use made of any available opportunity (whatever that may mean); the degree of injustice that would be suffered as a consequence the order; and such other matters as the Court considers relevant in the circumstances.

15 These proceedings have taken considerable time to reach a hearing notwithstanding that they were in the Expedition List of the Equity Division of this Court. Considerations of the primary overriding purpose and the objects of case management in s 56 and s 57 of the Civil Procedure Act 2005, tell against my granting leave to file the amended statement of claim.

16 On the other hand, it seems to me that the interests of the plaintiff in having all its issues with the Council properly ventilated before the Court, tilts the balance the other way.

17 Notwithstanding my misgivings about the length of time the case has taken to reach this point and the lateness of the application, it seems to me that the plaintiff should be given the opportunity to have the entirety of its case against the Council determined, and for that reason I grant leave to file in Court the amended statement of claim which is now initialled by me, dated by me and placed with the papers.

18 From what I have said, it is important that the Council be given the opportunity to carry out factual investigations and reassess its position before it is called upon to defend the plaintiff's amended case. For those reasons, I accede to the application for an adjournment.

19 I vacate the hearing before me. I order that the matter stand over into the Expedition List on Friday 26 August 2005, with liberty to the defendant to file and serve a notice of motion and affidavit in support of expedition by no later than 4 pm on Wednesday 24 August 2005.

20 The defendant seeks an order for costs. It asks for an order on an indemnity basis. The plaintiff submits that if I make an order that the costs be paid forthwith upon assessment or agreement, the defendant is sufficiently protected.

21 I have mentioned that the matter has taken some time to come before the Court. The record will show that on various occasions when the matter was before me as Expedition List judge, I commented upon the failure of the plaintiff to meet various timetables. The case, when it should have been ready for trial on Monday, was adjourned until today because counsel for the plaintiff was not in a position to open his case, his retainer having been withdrawn and subsequently reinstated.

22 Those are matters that were within the control of the plaintiff. It failed to act expeditiously in its preparation for trial. It seems to me that there is a level of delinquency referred to in Oshlack v Richmond River Council (1998) 193 CLR 72 that justifies my making an order on an indemnity basis under the Civil Procedure Act 2005, s 98(1)(c).

23 I order the plaintiff to pay the defendant's costs thrown away by the adjournment on an indemnity basis. I order the plaintiff to pay those costs forthwith upon agreement or assessment.