Rota Forma Pty Ltd -V- Loizos Kakoufas & Ors

[2004] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ROTA FORMA PTY LTD -V- LOIZOS KAKOUFAS & ORS

Reasons of Her Honour Judge Kelly

14 October 2004

PROCEDURE - COSTS

Late application by defendants to amend defence -trial adjourned - indemnity costs against defendants.

ROTA FORMA PTY LTD -V- LOIZOS KAKOUFAS & ORS
[2004] SADC 143

1. This matter was listed for trial before me on Monday 12 October 2004. 

2. At the outset I was informed that the defendants intended to make an application to amend the Defence.

3. At the Court’s invitation prior to that amendment being sought the plaintiff opened the case and tendered certain documentation relating to its claim.  The plaintiff’s statement of claim raised issues of breach of confidence, breach of contract and breach of copyright.  That statement of claim was filed in this Court on 29 August 2003. 

4. Mr Riggall appearing for the defendants then applied to amend the defence in order to raise a defence based upon section 77 of the Copyright Act 1972.  The explanation for the very late application to amend the defence was that it had been done on counsel’s advice.

5. In anticipation of the application to amend the defence I was told that the defendant delivered to the plaintiff on Friday 8 October 2004 a very substantial report which provided the defendant, so I was told, with the basis to amend pursuant to the relevant section of the Copyright Act.

6. I am told by Mr Rochow and I accept, that it will take the plaintiff some 6 to 8 weeks to complete its own enquiries which flow from the delivery of that report and the amendment to the defence if the defendants application is successful. 

7. Whilst the plaintiff opposed the amendment and was plainly embarrassed by the late application to amend in that the proposed amendment raises a defence which at least in theory if successful has the potential to defeat the plaintiff’s claim entirely, he candidly conceded that the embarrassment and prejudice to the defendant could be adequately met by an order for costs and the granting of an adjournment.

8. The plaintiff not unreasonably has sought indemnity costs thrown away as a result of any adjournment if the defendants application is successful. 

9. Given the nature of the proposed amendment and the fact that it is not in dispute between either the plaintiff or the defendant that the proposed amendment at least in theory has the potential to successfully defeat the plaintiff’s claim, I consider that in the interests of justice I ought to grant leave to the defendants to file and serve an amended defence in terms of the draft amended defence handed to me on Monday 11 October 2004.

10. Given that there is no apparent reason for the delay in filing the amended defence on a basis which was raised fairly and squarely on the pleadings from the outset over a year ago, and notwithstanding that the defendant gave notice by letter 3 weeks ago of the proposed amendment I consider that the application to amend on the date when this matter was listed for trial does cause great prejudice and embarrassment to the plaintiff.  Moreover it constituted a breach of the requirements of Rule 205 of the District Court Rules a rule which was designed to overcome this very problem.  As the failure to have this matter ready to proceed on the date it was listed for trial is the fault solely of the defendants I can see no reason why the plaintiff ought not to obtain its costs thrown away as a result of the amendment and the adjournment on an indemnity basis.

11. The order of the Court will therefore be:-

    1.     The trial is adjourned to commence before me on Monday 14 March 2005;

    2.The defendants to pay the costs of the plaintiff thrown away as a result of the amendment and the consequential adjournment to include the appearances of counsel on both 11 and 12 October on an indemnity basis within the meaning of Rule 101 of the District Court Rules.

    3.     Such costs to be agreed or taxed before a Master.

    4.The time for the defendant to amend its defence is extended to Friday 22 October 2004;

    5.The time for the plaintiff to file any reply is extended to Monday 10 January 2005;

    6.The time for the plaintiff to serve any expert report upon which it intends to rely is extended until Monday 31 January 2005.