Protec Pacific Pty Ltd v Steuler Industriewerke GmbH; BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH

[2013] VSCA 379

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0185

PROTEC PACIFIC PTY LTD (ACN 009 534 552)

v

STEULER INDUSTRIEWERKE GmbH (ACN 083 733 966)

S APCI 2012 0186

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD
(ACN 007 835 761)

v

STEULER INDUSTRIEWERKE GmbH (ACN 083 733 966)

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 DECEMBER 2013
DATE OF JUDGMENT:	13 DECEMBER 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 379

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PRACTICE AND PROCEDURE – Costs – Costs of application to change name of respondent – Amended submissions – Whether respondent should have leave to deliver third amended submissions in support of its second amended notice of contention – Case management considerations.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I H Percy	K & L Gates
For the Respondent	Mr F J J Tiernan SC	Hunt & Hunt

OSBORN JA:

1. I will ask Beach JA to deliver the first judgment.

BEACH JA:

1. Listed this morning were two applications brought by the respondent to these appeals.  First, the respondent sought orders changing the name of the respondent in each appeal to Steuler Services GmbH & Co KG.  Secondly, the respondent sought an order for leave to file and serve third amended submissions in support of its amended notice of contention (in fact the third amended submissions in support of the second amended notice of contention) in the appeal in which BHP Billiton Olympic Dam Corporation Pty Ltd is the appellant.

1. BHP and Protec have each consented to the amendment of the respondent’s name.  The only matter before us in relation to that issue is the question of costs.  Steuler submits that the costs of the application to change the respondent’s name should be the parties’ costs in each appeal.  On the other hand, the appellants contend that Steuler should pay their costs of and occasioned by the application in each appeal.  The appellants contend that costs orders in their favour should be made because:

(a)       the applications were necessary because Steuler has chosen to restructure and change its name for its own benefit;

(b)      the applications are made late and with no explanation for delay;  and

(c)       the procedure was ill thought out and has caused inconvenience and cost to the appellants which costs the appellants should have notwithstanding the outcome of the appeals.

1. I disagree.  Acting co-operatively, there should not have been any significant costs on the standard basis associated with the respondent’s name change.  I would order that there be no order as to the costs of the respondent’s application to change the respondent’s name in each appeal. Further, it is to be remembered that it is in both sides’ interests that the respondent be correctly named in the appeals.

1. I turn now to the respondent’s application for leave to file and serve third amended submissions in support of the second amended notice of contention.  Steuler seeks to file and serve third amended submissions in the form delivered to BHP on 23 October 2013.  This appeal is currently scheduled for hearing on 28 and 29 April 2014.

1. The appeal in this case involves litigation of some volume and complexity.  BHP opposes the application for leave to file the proposed third amended submissions in support of the second amended notice of contention for the following reasons:  first, it is said that no adequate explanation has been provided for why Steuler’s submissions failed to comply with directions of the Court going back to December 2012;  secondly, it is said that Steuler sought and obtained an indulgence from the Court in June 2013 to amend its submissions and to provide appendices;  thirdly, it is said that Steuler has not complied with its overarching obligations to co-operate and use reasonable endeavours to act promptly and minimise delays so as to ensure costs are reasonable and proportionate;  and fourthly, it is said that there are elements of unfair prejudice and inconvenience to BHP that would be caused by the proposed amendment which cannot adequately be compensated for by an award of costs even on an indemnity basis.

1. Dealing with this last point first, I reject the notion that an order for costs would not adequately compensate BHP in respect of the proposed amendment. 

1. Dealing now with the other points, the timely compliance with orders, the efficient conduct of litigation and the compliance with overarching obligations are all very important matters.  That said, this is litigation involving substantially more money than might be involved in relation to any order for costs thrown away.  Further, one cannot permit the various considerations to which I have referred to overshadow the just and proper determination of litigation. 

1. I suspect that were we to refuse Steuler the opportunity to deliver the amended document it now seeks to deliver (and which it delivered to BHP back in October this year), all that would happen is that the appeal would run less smoothly and greater costs would be incurred.  Far from facilitating the just and economic resolution of the appeal, a dismissal of Steuler’s application is likely to lead to greater cost and inconvenience at and about the time of the hearing of the appeal. 

1. As inconvenient as BHP might find having to deal with an amended set of submissions of which it has had notice since October this year, I am not persuaded that Steuler should be shut out from advancing the submissions it wishes to advance.  In fact, having regard to the lengthy history of this matter, I think the interests of justice dictate the parties being able to give appropriate notice now of the real points that they wish to run at hearing.

1. I would grant Steuler’s application to file and serve third amended submissions in support of the second amended notice of contention by 4 pm today.

OSBORN JA:

1. I agree. 

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