| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST
No. 10078 of 2007
| IN THE MATTER OF AWB LIMITED (ACN 081 890 459) |
| AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION | Plaintiff |
| v | |
| ANDREW ALEXANDER LINDBERG | Defendant |
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JUDGE: | ROBSON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20, 25 and 26 August 2009 |
DATE OF JUDGMENT: | 18 September 2009 |
CASE MAY BE CITED AS: | Re AWB Limited (No 7) Amended 6 October 2009 |
MEDIUM NEUTRAL CITATION: | [2009] VSC 413 |
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CORPORATIONS - civil penalty proceedings by ASIC – application to further amend the amended statement of claim – whether amendments necessary to determine the real question in controversy between the parties – whether amendments necessary to avoid multiplicity of proceedings – whether jurisdiction to amend enlivened under r 36.01- relevance of r 36.03 to amendment of pleadings – relevance of s 29(2) of the Supreme Court Act 1986 and r 1.14 of the Supreme Court (General Civil Procedure) Rules 2005 to the exercise of the court’s power to amend under r 36.01 – section 29(2) of the Supreme Court Act 1986 and rr 1.14, 36.01(1), (2) and (3) and 36.03 of the Supreme Court (General Civil Procedure) Rules2005.
PRACTICE AND PROCEDURE – amendment of pleadings - whether amendments necessary to determine the real question in controversy between the parties – whether amendments necessary to avoid multiplicity of proceedings – whether jurisdiction to amend enlivened under r 36.01- relevance of r 36.03 to amendment of pleadings – relevance of s 29(2) of the Supreme Court Act 1986 and r 1.14 of the Supreme Court (General Civil Procedure) Rules 2005 to the exercise of the court’s power to amend under r 36.01 – section 29(2) of the Supreme Court Act 1986 and rr 1.14, 36.01(1), (2) and (3) and 36.03 of the Supreme Court (General Civil Procedure) Rules2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J O'Bryan SC with Mr J P Moore and Ms M C Wall | The Australian Securities and Investments Commission |
| For the Defendant | Mr D G Collins SC with Mr K J A Lyons & Ms M Tittensor | Galbally & O’Bryan Solicitors |
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Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Etna v Arif [1999] 2 VR 353
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
HIS HONOUR:
INTRODUCTION AND SUMMARY
In this proceeding[1] ASIC has filed or sought to file the following claims:
[1]For nature of the proceeding, see Re AWB Ltd (No 1) [2008] VSC 69; Re AWB (No 3) [2009] VSC 209.
(a) 19 December 2007 – statement of claim;
(b) 18 April 2008 – amended statement of claim filed pursuant to rule 36.03(a);
(c) 1 May 2009 – proposed further amended statement of…
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- AGLC
- Re AWB Limited (No 7) [2009] VSC 413
- Case
- [2009] VSC 413
- Decision Date
CaseChat Overview and Summary
In examining these issues, the court assessed whether the amendments were essential for determining the true dispute between the parties and for ensuring that the proceedings were efficient and not unnecessarily repetitive. The court acknowledged the importance of allowing amendments where they serve to clarify the matters in controversy and to streamline the litigation process. The court also noted that the power to amend pleadings should be exercised judiciously, taking into account the principles of justice and the need to avoid prejudice to the opposing party. The court's analysis involved a careful balance between the procedural rules that govern amendments and the overarching objective of achieving a fair and expeditious resolution of the case.
The court concluded that the amendments proposed by ASIC were necessary to determine the real question in controversy and to avoid multiplicity of proceedings. It found that the jurisdiction to permit such amendments was indeed enlivened under rule 36.01 of the Federal Court Rules 2011. The court also determined that rule 36.03, which relates to the amendment of pleadings, was relevant in this context. Additionally, the court considered the provisions of section 29(2) of the Supreme Court Act 1986 and rule 1.14 of the Supreme Court (General Civil Procedure) Rules 2005, finding that they supported the exercise of the court’s discretion to allow amendments when it was just and convenient to do so.
Ultimately, the court granted ASIC permission to further amend its statement of claim, recognising the necessity of the proposed changes in the interest of justice and procedural efficiency. This decision ensures that the case can proceed with clarity and without unnecessary duplication, facilitating a more effective resolution of the underlying dispute.
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