Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd
[2013] FCA 1204
FEDERAL COURT OF AUSTRALIA
Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2013] FCA 1204
Citation: Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2013] FCA 1204 Parties: SHERRIN HIRE PTY LTD ABN 450 07 741 942 v SHERRIN RENTALS PTY LTD (FORMERLY SHERRIN EQUIPMENT PTY LTD) ABN 520 74 173 756, MICHAEL PATRICK SHERRIN and SHERRIN EQUIPMENT PTY LIMITED ABN 39 083 732 012 File numbers: NSD 1981 of 2011
NSD 350 of 2012Judge: EDMONDS J Date of judgment: 15 November 2013 Catchwords: PRACTICE AND PROCEDURE – application for leave to file amended defence raising new grounds and to file cross-claim against new parties after applicant has filed its evidence in chief and proceedings have been fixed for final hearing – considerations to be taken into account in exercise of discretion as to whether leave granted Legislation: Federal Court of Australia Act 1976 (Cth) Pt VB
Federal Court Rules 2011Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 considered
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 referred to
Genworth Financial Mortgage Insurance Pty Ltd v Peter Clisdell Pty Ltd [2009] FCA 1014 referred toDate of hearing: 5 November 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Applicant: Mr F Corsaro SC and Mr WAD Edwards Solicitor for the Applicant: TressCox Lawyers Counsel for the Respondents: Ms EA Collins SC with Mr L Shipway Solicitor for the Respondents: Holding Redlich
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1981 of 2011
NSD 350 of 2012
BETWEEN: SHERRIN HIRE PTY LTD ABN 450 07 741 942
ApplicantAND: SHERRIN RENTALS PTY LTD (FORMERLY SHERRIN EQUIPMENT PTY LTD) ABN 520 74 173 756
First RespondentMICHAEL PATRICK SHERRIN
Second RespondentSHERRIN EQUIPMENT PTY LIMITED ABN 39 083 732 012
Third Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
15 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 1 made on 5 November 2013 be varied to the extent that the time for the respondents to file all expert evidence be extended until 29 November 2013.
2.On or before 22 November 2013, the parties bring in draft short minutes of order to otherwise give effect to these reasons by forwarding a copy to chambers by email or otherwise. If the parties cannot agree on the orders to be made, each of the applicant and the respondents should forward to chambers draft short minutes of order to this effect. Such draft short minutes should include orders as to costs consistent with these reasons.
3.The costs of the interlocutory application filed 21 October 2013 and the amended interlocutory application filed in Court on 5 November 2013 be costs in the cause.
4.The proceedings be listed for further directions on 26 November 2013 at 9:30 a.m.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1981 of 2011
NSD 350 of 2012
BETWEEN: SHERRIN HIRE PTY LTD ABN 450 07 741 942
ApplicantAND: SHERRIN RENTALS PTY LTD (FORMERLY SHERRIN EQUIPMENT PTY LTD) ABN 520 74 173 756
First RespondentMICHAEL PATRICK SHERRIN
Second RespondentSHERRIN EQUIPMENT PTY LIMITED ABN 39 083 732 012
Third Respondent
JUDGE:
EDMONDS J
DATE:
15 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
On 5 November 2013 I heard an amended interlocutory application by the respondents that they be granted leave to:
(1)File a notice of cross-claim on four new parties as cross-respondents to the proceedings:
(a)Tidd Ross Todd Ltd;
(b)TRT (Aust) Pty Ltd;
(c)Panalam Technologies Limited; and
(d)Arotahi Trading Limited
and serve the parties in (a), (c) and (d) in New Zealand; and
(2)file a further amended defence.
By the same interlocutory application, the respondents also sought an extension of time until 29 November 2013 to file and serve their lay and expert evidence. By order at the conclusion of the hearing, I extended the time for the filing and serving of such lay and expert evidence until today and indicated that I would not allow any lay evidence that was not filed by today to be read. I also indicated that I would make a decision concerning any further extension for the filing and serving of the respondents’ expert evidence when I gave judgment on the amended interlocutory application.
BACKGROUND
Proceeding NSD 1981/2011 was commenced in November 2011 and proceeding NSD 350/2012 was commenced in March 2012. The proceedings concern 79 elevated work platforms (“EWPs”) which the applicant acquired from the first or third respondents between October 2005 and March 2008, which EWPs it alleges were defective and did not conform to certain pre-sale representations made about their quality. The applicant sues for breach of contract (including for breach of terms implied by sale of goods legislation as to fitness for purpose, or merchantable quality), negligent design and manufacture and for misleading or deceptive conduct.
The applicant seeks the recovery of the cost of the repairs alleged to have been necessary to make good the defective EWPs, losses from the need to carry out the repairs, the cost of investigating the causes of the defects and the means of repairing the EWPs. By affidavit sworn 27 March 2013, the applicant’s expert accounting witness, Mr Campbell Jackson of Deloitte, quantified that claim at $4,372,258.
Relevantly for present purposes, at the time of commencement of each proceeding, the applicant was aware that the EWPs were designed and manufactured by Tidd Ross Todd Limited (“TRT”): Statement of Claim (“SOC”) in NSD 1981/2011: para 2(b); SOC in NSD 350/2012: para 2(b), notwithstanding its pleading in tort against the first and third respondents in its Amended Statement of Claim (“ASOC”) filed 28 June 2012 in NSD 1981/2011 and 12 October 2012 in NSD 350/2012: paras 17K and 17L; and in its Further Amended Statement of Claim (“FASOC”) filed 31 May 2013 in each proceeding: paras 17K and 17L.
The proceedings have been set down for hearing commencing on 10 March 2014 for four weeks and it is common ground that if the Court grants the respondents the leave they seek in the amended interlocutory application, the hearing dates will be lost. This lies at the heart of the applicant’s opposition to the leave sought being granted.
PROCEDURAL HISTORY
If the hearing dates have to be vacated, this would not be the first time. At a directions hearing on 5 October 2012, I put in place a timetable for the parties to serve their evidence:
(1)The applicant was to serve its evidence in chief by 22 February 2013: order 7.
(2)The respondents were to serve their evidence by 19 April 2013: order 8.
(3)The applicant was to serve its evidence in reply by 17 May 2013: order 9.
I did not fix hearing dates on that occasion but a short time later, on 16 October 2012, and with the benefit of the orders made some 11 days before, I set the proceedings down for hearing commencing on 15 July 2013 for four weeks (email dated 16 October 2012 from my associate to the legal representatives of the parties).
Those hearing dates had to be vacated on 8 April 2013 (order 2) following the failure of the applicant to serve its evidence in chief by 22 February 2013, and to its subsequent failure to comply with an extended date of 28 March 2013 by order 1 made on 21 March 2013. Indeed, it was necessary to grant the applicant leave to file some eight affidavits on 3 April 2013 after it failed to meet the extended date of 28 March 2013.
On the same date, 8 April 2013, I vacated the 5 October 2012 orders requiring the respondents’ evidence to be served by 19 April 2013 (order 8) and the applicant’s evidence in reply to be served by 17 May 2013 (order 9).
On 24 May 2013, I made the following relevant orders:
1.Leave be granted to the applicant to file and serve its Further Amended Statements of Claim in proceedings NSD 1981 of 2011 and NSD 350 of 2012 in the form served on the respondents on 9 May 2013 by 31 May 2013.
2.The applicant pay the respondents’ costs thrown away by reason of the further amendments to the Amended Statement of Claim in proceedings NSD 1981 of 2011 and NSD 350 of 2012.
3.The respondents file and serve their Defences to the Further Amended Statements of Claim by 21 June 2013.
…
5.The respondents file and serve any evidence upon which they wish to rely by 27 September 2013.
6.The applicant file and serve any evidence in reply to the respondents’ evidence by 2 December 2103.
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8.The proceedings be listed concurrently with proceedings NSD 350 of 2012 for hearing on 10 March 2014 with an estimate of 4 weeks.
At a directions hearing on 3 October 2013 I was informed by senior counsel for the respondents that approximately 10 days before the respondents’ evidence was due (27 September 2013), their instructing solicitors received instructions to apply for leave to file a cross-claim joining one or two related corporations (including TRT) in New Zealand as cross-respondents in the proceedings. I was informed that one or more of these proposed cross-respondents designed and manufactured the EWPs which were then sold to another New Zealand company operating in Australia as a foreign company. I was further informed that this Australian branch of the New Zealand company on-sold the EWPs to the first or third respondents and that they were then sold or “lease financed” to the applicant through a financier. I was asked to fix a date for hearing an application for leave by the respondents to file and serve a notice of cross-claim on TRT in New Zealand, as well as an application for an extension of time for the respondents to file and serve their evidence. In relation to this latter application, I was informed by senior counsel for the respondents that, to that day, the respondents had not put on any evidence despite the effluxion of over four months from when the 24 May 2013 orders were made. No explanation was given for the delay, let alone one that justified the delay. On that day, I made the following relevant orders:
1.The respondents’ applications for leave to file a notice of cross-claim, leave to serve the notice of cross-claim on Tidd Ross Todd Ltd in New Zealand, and an extension of time in which to file and serve their evidence, together with evidence in support of the applications, be filed and served by 14 October 2013.
2.The applicant file and serve any evidence in reply by 22 October 2013.
3.Order 5 made on 24 May 2013 be vacated and the respondents file and serve any evidence upon which they wish to rely by 23 October 2013.
4.The applications be listed for interlocutory hearing on 5 November 2013 at 9:30 a.m.
5.The matter be listed for directions on 23 October 2013 at 9:30 a.m.
On 21 October 2013, the respondents filed (some seven days late) an interlocutory application seeking the leave and extension referred to in order 1 made on 3 October 2013, as well as seeking leave to file a further amended defence.
On 23 October 2013, I extended the time by which the respondents were to file and serve any evidence upon which they intended to rely to 5 November 2013, the day fixed for the hearing of the interlocutory application.
On 5 November 2013 the interlocutory application came on for hearing. The respondents, with leave, filed an amended interlocutory application in Court. The only amendment to the interlocutory application filed 21 October 2013 was the addition of a further proposed cross-respondent, namely, Arotahi Trading Limited.
APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE EVIDENCE
As indicated in [1] above, at the conclusion of the hearing on 5 November last, I extended the time for the respondents to file and serve their lay and expert evidence until today on the basis that I would not allow any lay evidence that was not on by the end of today to be read. Accordingly, the only matter that needs to be considered under this head is whether the respondents should have a further two weeks, to 29 November 2013, to put on their expert evidence.
At the outset, I have to say that, on a stand-alone basis, this application has no merit whatsoever. Having regard to the evidence that was adduced at the hearing, both in chief and in cross-examination, I am satisfied that the only reason that all the respondents’ evidence was not filed and served before the due date of 27 September 2013 was because between 24 May 2013 and 27 September 2013 the respondents did nothing towards that end; certainly nothing in the way of giving their solicitors instructions, and the solicitors did nothing to impress upon the respondents the importance of complying with the Court’s timetable.
In support of their application for extension, the respondents point out that their primary expert giving engineering evidence, was first engaged by the respondents in late 2012. Apparently, he was retained by the solicitors for the respondents to provide a report for use in the proceedings in June 2013 and a draft report has been prepared. However, I was informed that it requires considerable further work before it can be finalised. The explanation for this is unclear, but the respondents appear to rely on the difficulties they have experienced in getting documents out of TRT. The respondents point out that since 4 October 2013 they have provided to the applicant three additional folders of documents made available to them by TRT, namely, on 4 October, 21 October and 31 October 2013. This material includes design calculations and compressive and structural tests. The respondents’ instructing solicitor anticipates that some of the recently provided TRT documents will either be relied upon by their engineering expert in his report, or be the subject of assumptions he has been asked to make for the purposes of his report.
The respondents also wish to have the opportunity to adduce expert evidence from an expert in composites, to answer the evidence of Professor Murray Scott. They say that while attempts were first made some weeks ago to locate a suitable composites expert, this took some time. Apparently the composites expert will be unavailable the week commencing 11 November 2013 to work on his report.
On the hearing, there was some evidence from the applicant that its instructing solicitors had grounds for believing that unless the respondents’ expert evidence and all further TRT documents were received by mid-November at the latest, the applicant’s engineering experts would have insufficient time to review all this material and thereafter draft a response without endangering the trial dates. The respondents say that this belief has no foundation. They say that the TRT documents are already in the applicant’s hands; both Messrs Batten and Scott will have time in December 2013 to consider the respondents’ expert evidence. Mr Wenn apparently will become available on 13 January 2014. It follows that if the respondents are given until 29 November 2013 in order to complete their evidence, and the applicant’s evidence in reply is required to be filed by 10 February 2014 (one month before the commencement of the trial), the applicant’s experts will each have an adequate opportunity to prepare any evidence in response. The respondents point out that it is not insignificant that on 20 March 2013 the applicant’s legal representatives put forward a timetable which would have given the applicant only two weeks in order to serve any evidence in reply in the proceedings.
While the application for extension has no inherent merit having regard to the respondents inexplicable delay, I propose to grant the extension sought with respect to its expert evidence, that is, until 29 November 2013, because I am not convinced that such an extension would, of itself, endanger the commencement of the hearing on 10 March 2014.
APPLICATIONS TO AMEND DEFENCE AND FILE A CROSS-CLAIM
The respondents’ applications to amend their defence and file a cross-claim against four New Zealand corporations inevitably raises the sceptre of what fell from the plurality in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Equally unsurprising is that both the applicant and the respondents can find considerations and issues referred to in the reasons of the plurality that support their contrary positions on the applications. I say unsurprisingly because of what is here involved in an application to amend, namely, the invocation of the Court’s jurisdiction to exercise its discretionary power involving as it does a balancing exercise of weighing competing considerations and issues.
The plurality’s analysis at [96] to [103] of its reasons is relevantly set out below:
[96] An important aspect of the approach taken by the plurality in JL Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. … It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power.
…
[98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. … [A]n order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party’s opponent. … The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
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[102] The objectives … do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. … Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
(Footnotes omitted.)
The plurality’s conclusion at [111] to [114] of its reasons, is set out below:
[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114] Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU’s claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
In Aon, the plaintiff had applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant on the third day of a four-week trial of a proceeding that had been on foot for two years. The plurality in Aon made it clear at [58] that “the starting point for any application to amend must be the rules governing such applications in the relevant jurisdiction”. In that case, the applicable rules governing applications to amend were found in the Court Procedure Rules 2006 (ACT). Relevantly, r 21(1) required that civil proceedings be conducted in order to achieve a “just resolution of the real issues … with minimum delay and expense”. Whilst there is no direct equivalent to r 21(1) in the Federal Court Rules 2011 (“FCR”), the Court must exercise the power to grant or refuse leave in a way that best promotes the “overarching purpose” of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) and the FCR; in particular, Pt VB – ss 37M and 37N of the FCA Act.
Section 37M of the FCA Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. Without limiting the generality of that provision, the overarching purpose includes these objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall case load; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out in the way that best promotes the overarching purpose: subs 37M(3).
Section 37N of the FCA Act imposes a duty on the parties to a dispute to conduct the proceeding in a manner consistent with the overarching purpose proclaimed by s 37M.
Subsequent cases in this Court have emphasised that Aon “is not a one size fits all case”: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51]. In that case, the Full Court (Keane CJ, Gilmour and Logan JJ) was asked to consider whether the primary judge erred in granting the ACCC’s application for leave to amend its statement of claim on the first day of a two-week hearing, necessitating the adjournment of the trial. Commencing at [45] and then at [51], the Court relevantly said:
[45] [W]e should observe that insofar as the trial judge gave significant weight to the consideration that the achievement of justice in the particular case before him favoured allowing the amendment, that was not contrary to the decision in Aon Risk or anything in s 37M or s 37N of the Federal Court Act. Nothing in Aon Risk or the Federal Court Act suggests that this consideration is not relevant to the exercise of the discretion to permit or refuse an amendment. Rather, the point made in Aon Risk is that this consideration must not be allowed to trump other relevant considerations, including considerations of the kind reflected in ss 37M and 37N of the Federal Court Act.
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[51] Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case.
In Genworth Financial Mortgage Insurance Pty Ltd v Peter Clisdell Pty Ltd [2009] FCA 1014 the respondents sought leave on the first day of a six-day hearing to amend their defence to plead proportionate liability, which would have necessitated a vacation of the hearing dates. The basis for the amendments was information contained in documents that were produced in response to a subpoena served by the respondents’ solicitors more than a year after proceedings had commenced. The respondents accepted that there had been some delay on their part in issuing the subpoena, but argued that the subsequent delay in obtaining documents had been caused by the subpoenaed parties’ unsuccessful attempt to resist production. Jagot J accepted that the subpoenaed documents gave rise to an issue which the respondents “did not, and could not have, reasonably expected” ([21]) at the time they issued the subpoena. Her Honour held (at [20]–[22]) that the application to amend should be allowed, because the “nature and importance of the amendments [were] real and in these circumstances it … would be unjust to deny the respondents the opportunity to run [the proportionate liability] case, even though the consequence is the vacation of the current hearing dates”.
Earlier (at [16]), her Honour made the following observations on the difference between the facts in Aon and the case before her Honour:
[16] … First, this is an application to amend a defence by a defendant, not, as in Aon, an application to amend by an applicant which already had the advantage of consent orders reached through a process of mediation. Second, the Federal Court Rules, specifically Order 13 r 2, are different from the rules of the ACT Supreme Court (Court Procedure Rules 2006 (ACT)), particularly the inclusion therein of the requirement in r 21(1) that in civil proceedings there be a just resolution of the real issues with minimum delay and expense. Third, in Aon, it seems that there was no adequate explanation for the delay in the application to amend, and indeed the delay may have been a tactical decision. The same certainly could not be said in the present case. Finally, in Aon, the majority of the High Court noted at [102] that even where r 21 of the Court Procedure Rules, or a rule to that effect, applied, not every application for an amendment should be refused because it will involve the waste of some cost, and some degree of delay. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. …
Some, although not all, of these differences can be found in the present case.
Turning to the facts of the present case, on or about 22 October 2013, the respondents’ solicitors served a copy of a proposed further amended defence and a copy of the proposed notice of cross-claim on the applicant’s solicitors. On or about 1 November 2013, a copy of an amended proposed further amended defence was served. I shall hereinafter refer to the latter document by the acronym “PFAD”.
The PFAD raises two completely new grounds of defence, which the applicant describes as “radical in nature”. First, in para 49 it asserts that the applicant has carried out unnecessary or excessive work in repairing the defects in the EWPs; that such work has in fact improved the EWPs and made them better than what the first respondent was obliged to supply; and/or that the applicant would not have needed to carry out the repairs it did if it had a different system of fleet maintenance. I shall hereinafter refer to these as the “betterment amendments”. I agree with the applicant that this new ground raises many factual and technical issues none of which have been addressed in the applicant’s evidence in chief. Second, in paras 50–84, it is pleaded that four New Zealand corporations are concurrent wrongdoers which are proportionately liable for the applicant’s loss. I shall hereinafter refer to these as the “proportionate liability amendments”. These amendments assert for the first time that in the event the EWPs are defective, the respondents are obliged only to pay a proportionate share of damage, and must look to the New Zealand companies for the balance. Those New Zealand companies are alleged to have designed, manufactured and/or sold the EWPs to the respondents for on-sale to the applicant. While these amendments are raised for the first time, the factual base upon which the amendments are raised was known to the applicant prior to the commencement of each proceeding (see [5] above).
The applicant opposes the respondents’ applications for leave to amend and file a cross-claim on four principal grounds, although some grounds are comprised of more than one limb:
(1)First, the “advanced” stage of the proceedings to use the expression from Aon (at [112].
(2)Second, no logical or coherent reasons why both the betterment amendments and the proportionate liability amendments could not have been raised earlier.
(3)Third, no adequate explanation for the delay in raising the amendments; indeed, in the case of the proportionate liability amendments, there is more than a suggestion that there was a deliberate decision not to raise those amendments earlier, for commercial reasons.
(4)Fourth, prejudice to the applicant in a number of respects, including:
(a)Loss of the hearing dates;
(b)By reason of the nature of the proportionate liability amendments and the respondents’ delay in raising them, the applicant is vulnerable to limitation defences preventing it from claiming against the New Zealand companies.
As to the first ground, it may be correct to say that the proceedings have reached an “advanced” stage to use the expression from [112] of Aon, but that expression is more notable for allowing a spectrum of application than its definitive qualification; and the proceedings in the present case are nowhere near as “advanced” as they were in Aon, and the other cases in this Court referred to above, at the time the pleadings were sought to be amended. The hearing dates are still four months away although, as in the other cases, they will be lost if the applications for leave are granted.
As to the second ground, it may be difficult to counter the argument there was no logical or coherent reason why both the betterment amendments and the proportionate liability amendments could not have been made earlier. It may be accepted that there was no hurdle, obstacle or other impediment to the amendments being made earlier but, in cases such as this, that will invariably be the case. It does not assist the balancing exercise that has to be undertaken to say that the applications could have been made at an earlier point in time. The real issue is whether the raising of the amendments has been left until it is too late to warrant an exercise of the discretion in the respondents’ favour.
As to the third ground, as Aon makes clear at [102], [103] and [114], an explanation for the delay in making the amendments can be critical if the discretion is to be exercised in the moving party’s favour and to the disadvantage of the other party. While the plurality do not refer to a requirement that the explanation be “adequate” (cf., French CJ at [30]), indeed at [114] they refer to “some explanation”, it is implicit that unless the explanation is adequate it does not neutralise the delay as a consideration counting against an exercise of the discretion in the moving party’s favour.
The explanations given by the respondents are somewhat elusive, but appear to amount to the following. In the case of the “betterment amendments”, these grounds only manifested themselves in the light of conferences recently held with lay and expert witnesses to be called on behalf of the respondents and following review by these witnesses of the lay and expert evidence filed on behalf of the applicant. So much may be accepted, however, these tasks themselves are, as already indicated, infected with delay for which no explanation was forthcoming (see [16] above). In the case of the “proportionate liability amendments”, the explanation was that apparently Mr Sherrin was initially reluctant to consider joining TRT because he did not believe the applicant’s case in negligence to be strong and he had a commercial relationship with TRT which he did not want to unnecessarily complicate.
In my judgment, neither of these explanations neutralises the delay as a consideration counting against an exercise of the discretion in the respondents’ favour.
As to the fourth ground, the loss of the hearing dates and consequential future delay are undoubtedly matters of prejudice to the applicant. The suggestion that by reason of the nature of the proportionate liability amendments and the respondents’ delay in raising them, the applicant is vulnerable to limitation defences preventing it from claiming against the New Zealand companies, is more difficult to assess and weigh in the balancing exercise. A factor mitigating against attaching too much weight to this consideration is that the applicant has been aware, since before commencing the proceedings, that the EWPs were designed and manufactured by TRT and its affiliates and on-sold to the respondents. For that reason, while I would attach some weight to this consideration counting against the exercise of the discretion in the respondents’ favour, it would not be significant.
In summary then, the considerations which, in my opinion, carry significant weight against exercising the discretion in favour of the respondents’ applications are:
(1)The delay in raising the proposed amendments and the proposed cross-claim.
(2)The absence of adequate explanations for the delay in raising them.
(3)The loss of the hearing dates and consequential future delay to enable the applicant to plead by way of reply to the PFAD; to put on evidence in relation to the “betterment amendments”, none of which have been addressed in the applicant’s evidence in chief; and to enable the proposed cross-respondents to plead their defences to the cross-claim and put on their evidence. There is a significant risk that the proceedings will not be ready for hearing until the second half of next year at the earliest, assuming the Court can accommodate a four-week hearing or longer in that period.
In relation to the consideration of past delay, I have to say that, in my view, that delay was not great. On 24 May 2013, I gave the applicant leave to file and serve its Further Amended Statement of Claim in both proceedings by 31 May 2013 and the respondents were directed to file and serve their Defences to the Further Amended Statements of Claim by 21 June 2013 (see [10] above). Both those orders were complied with by the respective parties. In my view, it would have been open to the respondents to raise the betterment amendments and the proportionate liability amendments in their Defences to the Further Amended Statements of Claim and the applicant would have had no basis to object other than to seek time to put on further evidence to deal with these amendments, its evidence in chief having been filed by that point in time. At worst, the past delay complained of is no more than four months.
Against the considerations of past delays, lack of explanation or inadequate explanation for the past delay, loss of hearing dates and consequential future delay, all weighing against the discretions being exercised in the respondents’ favour, lie the considerations of the nature and importance of the amendments to the respondents’ case in the context of the overarching purpose of s 37M of the FCA Act, including the objectives therein referred to, as outlined in [25] above, weighing in favour of the discretion being exercised in the respondents’ favour.
The respondents point out that the applicant seeks more than $4 million in damages alone for, inter alia, negligence in the design and manufacture of the EWPs it says it acquired from the respondents. The respondents contend, and always have, that they had very little to do with the design and manufacture of those products and wish to plead that they cannot be liable for more than their proportionate share of any damages should they be found to be liable at all. In order to avail themselves of the benefit of the proportionate liability regime, the respondents must amend their defence. The alleged concurrent wrongdoers also need to be joined to the proceedings by way of cross-claim. The importance of these amendments to the respondents’ case is self-evident.
The respondents submitted that the facts of the present case differ from those in Aon in several important respects. By way of contrast, they point to what the plurality said at [104] concerning the new claims being so substantial as to require Aon, in effect, to defend again, as from the beginning, and raise the following as differences:
(1)First, this application is not made on the eve of the trial, or during the trial; the trial is some four months away.
(2)Second, the nature of the proposed amendments and cross-claim raise discrete issues that will not require the applicant substantially to re-litigate or re-plead its case from the beginning. The respondents will bear the onus of establishing that the proceedings give rise to apportionable claims, that the proposed cross-defendants are concurrent wrongdoers, and that the respondents, to the extent that they may be found liable, should only be liable for their proportionate share of the damages. This is not a situation such as that in Aon where the proposed amendments fundamentally re‑shaped the issues at the heart of the litigation. The applicant has known since well before the proceedings commenced that the EWPs were designed and manufactured by TRT. The applicant chose to pursue the respondents alone (including in negligence on the basis that the respondents owed a duty of care as “designer” and “manufacturer”). It is not unusual for a respondent in proceedings involving technical issues such as the present case to find, on the basis of new information obtained in responding to expert evidence served by the applicant, that another party may be at fault.
(3)Third, the amendments are of fundamental importance to the respondents and their potential liability.
(4)Fourth, the respondents have furnished a credible explanation for the timing of the application to amend. It was not unreasonable that TRT’s role would come into sharper focus following the service of the applicant’s evidence. The respondents accept responsibility for some of the delay that has occasioned, however, as Mr Venus’ evidence makes clear, the delay was caused in part by the relevant third party TRT’s intractable and dilatory responses to providing documents and information that the respondents repeatedly requested.
(5)Fifth, permitting the amendments avoids the need for a separate trial between the respondents and the proposed cross-respondents, and thus saves the wasted costs associated with such a duplication. It also avoids the risk of inconsistent findings and ensures that the Court in these proceedings has all the available evidence before it.
Not without some hesitation, I have come to the conclusion that the considerations in favour of the discretion being exercised in the respondents’ favour, in particular the nature and importance of the proposed amendments to the respondents’ case in the context of the objectives of the overarching purpose as articulated in s 37M of the FCA Act, especially the just determination objective, outweigh the considerations against the discretion being exercised in their favour, in particular, the loss of the hearing dates and the consequential delay in the final resolution of the dispute. I am very conscious that I am here looking at a delay of months, not weeks, and from 6 to 12 months.
I therefore propose to grant the respondents leave to file a further amended defence which includes the betterment amendments and the proportionate liability amendments. I also propose to grant the respondents leave to file and serve a cross-claim on the four New Zealand corporations referred to in the amended interlocutory application as cross-respondents.
Apart from the order extending the time for the respondents to file all expert evidence until 29 November 2013, I do not propose to make specific orders in response to the amended interlocutory application. I am not absolutely certain as to the forms of the further amended defence and the cross-claim in respect of which leave is to be granted – they were not in evidence, as distinct from being available, on the hearing of the amended interlocutory application – and there was no agreement or argument on the dates by which the filings and service should be effected in the event that leave was granted. I therefore propose to direct the parties to bring in draft short minutes of order to deal with these matters and any other matters which it is thought desirable in the management of the proceedings going forward.
COSTS
The costs of the interlocutory application/amended interlocutory application should be costs in the cause.
The respondents should pay the applicant’s costs:
(1)Thrown away, if any, by the grant of leave;
(2)of pleading a reply to the further amended defence filed pursuant to the leave granted; and
(3)of adducing evidence in respect of all amendments to the amended defence filed 20 June 2013 effected by the further amended defence filed pursuant to the leave granted.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 15 November 2013
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