Thompson v Hodder

[1989] FCA 493

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	N0.6330 of 1989

1

GENERAL DIVISION 1

BETWEEN:  NELSON TOBACCO CO PTY
LIMITED

First Applicant

NELSON TRADING (QLD) PTY

LIMITED

Second Applicant

AND:  ROTHMANS OF PALL MALL

AUSTRALIA) LIMITED

First Respondent

JOHN DAVID DEVINE

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Order 13 Rule 2 of the Federal Court Rules provides:

"(l) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceedlng be amended, or that any party have leave to amend any document in the proceedlng, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determlnlng the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. , . '. ,

In the present matter, the respondents seek leave to file an amended statement of defence of which they first gave notice about two weeks ago. The matter was on 30 June 1989 fixed for hearing in the week commencing today. The amendments, if allowed, certainly require the refixing of the matter a considerable time in the future as they would enlarge significantly the issues to be determined. Even without amendment, the matter appears now likely to occupy more time than the week allotted to it. However, if the question of amendment had never been raised it may have been possible to find the relatively small amount of additional time required in the fairly near future.

Senior counsel for the respondents does not proffer any analysis of the factors which led to the admissions involved in the previous pleading and to the failure to plead matters which it is now desired to raise. However, it must be acknowledged that delays on the part of the applicants (however justified) produced a situation in which the proceedings were seen as urgent. The statement of claim, dealing with complex issues, was filed in court on 28 June 1989; the court on 30 June 1989 set the

dates for hearing; and the statement of defence was filed on 6	July 1989. I think the speed with which the respondents'
advisers must have attempted to assimilate the issues puts the case in a different category from those cases where a dilatory defendant at the last moment attempts to raise issues he should have raised long before. In the present case, both parties have been far from dilatory.
The amendments are fundamental. So long as the court can provide against prejudice which may arise for the applicants,
I think it would be a wrong exercise of discretion and a
repudiation of the principles enshrined in Order 13 Rule 2 to force the respondents to fight this case on issues other than those which they now wish to put forward as their true defences. At the same time, the court should be vigilant to ensure that the applicants are not unfairly prejudiced as a consequence of the way in which the respondents have gone about the pleading of their case.
I have concluded that the respondents should have leave to amend their statement of defence in the manner proposed, and thereby to withdraw the admissions made in the statement of defence as originally filed, but subject to their submission to the following terms:
1. Respondents should pay any costs thrown away as a consequence of the amendment.

The respondents should pay the costs of the motion for

amendment. ( I do not accept that Public Trustee v. Nash

38 WN (NSW) 142 at 143 applles to what is here proposed, which involves the dislocation of a number of complicated interlocutory arrangements.)

The interlocutory regime established on 29 June 1989 must continue subject only to the variations made by these orders and any variation pursuant to the liberty to apply which I shall grant; the variations made by these orders are the following:

a. The applicants are to be released from the

undertaking contained in paragraph six of the short minutes of 29 June 1989 so far as that undertaking relates to service allowances paid to them by the first respondent on and after 25 September 1989, but subject to the applicants giving the usual undertaking as to damages in respect of the interlocutory relief embodied in those short minutes and in these orders as from 25 September 1989.

b. The undertaking of the applicants contained in

paragraph seven (as amended pursuant to an order subsequently made by me increasing the sum of $600,000.00 to $900,000.00) of the said short minutes may be varied to correspond with the variation of the undertaking in clause 6 effected by these orders. As a consequence, the last

sentence of paragraph seven may be deleted subject to the applicants, in the event of any appeal,

giving a further undertaking as to damages.

c. Liberty to apply.

I make orders accordingly. I take it the undertaking as to damages is given and the undertaking in paragraph seven is given in the amended form. [The undertakings were given by Mr Sweeney Q . C . , and the hearing date was fixed for 5 March 1990.1

I certify that this and the

preceding four ( 4 ) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Dated: 28 August 1989

Counsel for the Applicants:	Mr C. Sweeney Q . C . with Mr C . C . Hodgekiss and Hr I. Harvey
Solicitors for the Applicants:	Baker & McRenzie
Counsel for the Respondents:	Mr D.A.  Staff Q . C . with
MS H.J. Beazley
Solicitors for the Respondents:	Clayton Utz
Date of hearing:	28 August 1989