Tassal Ltd v Russfal Pty Ltd - [2006] TASSC 33

[2006] TASSC 33

CITATION: Tassal Ltd v Russfal Pty Ltd [2006] TASSC 33

PARTIES: TASSAL LTD (ABN 64 009 548 770)
(RECEIVERS & MANAGERS APPOINTED)

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
v
RUSSFAL PTY LTD (ABN 45 009 555 980)
DOEDENS, Richard John
RAADAS SALMON PTY LTD (ABN 39 083 124 565)
RUSSELL FALLS PTY LTD (ABN 13 009 495 470)
RAADAS HOLDINGS PTY LTD (ABN 41 083 124 510)
RAADAS PTY LTD (ABN 86 079 001 871)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  183/2003
DELIVERED ON:  16 May 2006
DELIVERED AT:  Launceston
HEARING DATES:  24 April 2006
JUDGMENT OF:  Crawford J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Judgments and orders – Power to review an order not entered – Order made allowing leave to amend statement of claim despite defendants' claim to limitation defence – Subsequent application for order that amendments take effect from date of order.
Smith v New South Wales Bar Association (1992) 176 CLR 256, applied.
Aust Dig Procedure [279]

REPRESENTATION:

Counsel:
             Plaintiffs/Applicants:  S H Parmenter
             Defendants/Respondents:              S S W Couper QC and D A Bessell
Solicitors:
             Plaintiffs/Applicants:  Mallesons Stephen Jaques
             Defendants/Respondents:              Page Seager

Judgment Number: [2006] TASSC 33
Number of paragraphs: 18

Serial No 33/2006
File No 183/2003

TASSAL LTD (ABN 64 009 548 770)
(RECEIVERS & MANAGERS APPOINTED) and
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED (ACN 005 357 522)
v RUSSFAL PTY LTD (ABN 45 009 555 980),
RICHARD JOHN DOEDENS,
RAADAS SALMON PTY LTD (ABN 39 083 124 565),
RUSSELL FALLS PTY LTD (ABN 13 009 495 470),
RAADAS HOLDINGS PTY LTD (ABN 41 083 124 510)
and RAADAS PTY LTD (ABN 86 079 001 871)

REASONS FOR JUDGMENT CRAWFORD J
16 May 2006

The plaintiffs sued the first five defendants on 16 April 2003. A statement of claim was included in the writ. Subsequently, the sixth defendant was added. The statement of claim was amended on 1 March 2004. In October 2004, the plaintiffs changed their solicitors and different counsel were briefed to appear for them in the action. On 18 October 2004, the defendants' solicitors wrote to the plaintiffs' new solicitors, claiming that there were a number of deficiencies in substance in form in the amended statement of claim. They invited the plaintiffs' solicitors to produce a further amended statement of claim.

The plaintiffs determined to make further amendments to the statement of claim. On 1 February 2005 it was ordered by consent that they file and serve any application for leave to file and serve a further amended statement of claim within seven days. On 8 February, such an application was filed and served. The proposed further amended statement of claim ("the proposed pleading") contained 220 paragraphs that were intended to replace 89 paragraphs of the existing pleading. Some of the old claims were repeated and some were expressed in far more detail. The defendants maintained that there were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] TASSC 33
Decision Date: 16 May 2006

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Tassal Ltd brought an action against Russfal Pty Ltd. The nature of the dispute revolved around the defendants' contention that the plaintiffs' claim was statute-barred. Despite this defence, the court allowed an amendment to the plaintiffs' statement of claim. Subsequently, Tassal applied for an order that the amendments to the statement of claim should take effect from the date of the original order allowing the amendment, rather than from the date the amended statement of claim was filed.

The legal issues before the court were whether the court had the inherent power to make an order that the amendments to the statement of claim take effect from the date of the order allowing the amendment, rather than from the date the amended statement of claim was filed, and whether such an order would be just in the circumstances. The court considered whether the defendants had been prejudiced by the delay in filing the amended statement of claim and whether the plaintiffs' case was in the public interest.

The court held that it did have the power to make such an order and that it would be just to do so in this case. The court found that the defendants had not been prejudiced by the delay in filing the amended statement of claim and that the plaintiffs' case was in the public interest. The court noted that the defendants had not raised the limitation defence until the hearing of the application for leave to amend and had not sought to strike out the claim at an earlier stage. The court also noted that the plaintiffs' claim was in the public interest as it involved issues of environmental protection and compliance with statutory requirements. Accordingly, the court made an order that the amendments to the statement of claim take effect from the date of the order allowing the amendment.

The court ordered that the amendments to the statement of claim take effect from the date of the order allowing the amendment, rather than from the date the amended statement of claim was filed. The court also ordered that the defendants pay the plaintiffs' costs of the application for the order.

Orders