Waratah Quest P/L v Scania Australia P/L

[1994] FCA 987

JUDGMENT No. ........ .*....~ 9757 "l 9, --

m FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY No NG 818 of 1993

GBNBRAL DIVISION

BETWEEN :

WARATAH QUEST PTY LIMITED

Applicant

AND I

SCANIA AUSTRALIA PTY	LIMITED
Respondent

SACKVILLE J.

PLACE	t	SYDNEY
D N m a	6 DECEIIBER, 1994

HIS HONOUR: There is an application before me by Mr Cutler

on behalf of the respondent to amend the amended defence. The

application is that the amended defence be further amended by the following plea: "the applicant has failed to mitigate its loss of income, loss of profit and loss of use of profit as

claimed in paragraph 26 of the amended statement of claim".

Mr Maconachie QC who appears with Miss Foord for the applicant

has resisted the application to amend. He pointed out in

earlier argument on the application that it would be necessary

for the respondent to particularise the claim by way of

alleged failure to mitigate loss in order for the applicant to

be able to meet that claim.

In further argument, Mr Cutler indicated that he would wish to

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particularise the plea by reference to matters which he

frankly acknowledged were not in evidence or canvassed by the

evidence. This was subject to one exception that I shall

mention in a moment. In relation to the, as yet

unparticularised matters that go beyond the evidence, it seems to me that leave to amend ought not to be granted. Indeed, it is very difficult to see how the application can be proceeded

with without the particulars of alleged failure to mitigate

loss being provided.

Only when that is done can it be seen whether further evidence is required and what effect the gathering of that evidence might have, if any, upon the conduct of the litigation. In view of Mr Cutler's frank acknowledgment on that part of the application to amend, it seems to me that leave to raise those unspecified issues should be refused.

The only question that seems to me to arise on the application

is whether leave should be granted to amend the defence so as

to raise a particular issue that is adverted to in the

affidavit of Sharyn Cipollone. That affidavit has not yet

been read but I refer to it for the purposes of this

application.

In her affidavit MS Cipollone refers to the fact, as asserted by her, that to obtain a vehicle by way of refinancing would

have required the outlay of a deposit of some $20,000. She

goes on to depose that the deposit was not an amount which the

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company had at the time of swearing her affidavit. Although

Mr Cutler has not formulated particulars in writing of the

proposed amendment the substance of it as I apprehend the

matter is that the applicant failed to take reasonable steps

to mitigate its loss by failing to obtain another vehicle

through a process of refinancing of the kind referred to in

paragraph 59 of MS Cippolone's affidavit.

I put to Mr Maconachie the proposition that an amendment

raising this issue might relate to evidence already prepared

for the proceedings. Mr Maconachie in response submitted that

the amendment, even limited in the way described, would

require further investigations and further evidence. He

pointed out that the vehicles involved in this case were

specialised vehicles. An assessment of their availability in

the market would require evidence as to the state of the

market place and the circumstances in which finance might or

might not be obtainable for a replacement vehicle.

He also submitted that evidence would be required as to the coat of obtaining such a vehicle, and as I understood his submission, suggested that that evidence would need to go well beyond that which is referred to in paragraph 59 of MS Cippolone's affidavit. Mr Maconachie also submitted that the very reason why the material in MS Cippolone's affidavit had not been elaborated was because there was no plea of failure to mitigate and accordingly the evidence was not developed.

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He has pointed out that expert evidence has been adduced by both sides. That expert evidence does not address the questions that would be raised by the foreshadowed amendment. Had the amendment been proposed or notice given of it at an earlier time then the experts, among other things, are likely to have addressed the issue in their reports. He indicated that, if the defence were amended as suggested, the applicant would have to apply for an adjournment to obtain further evidence.

In my view it is of considerable importance that litigation be conducted in an orderly fashion. It is unsatisfactory from the point of view of courts with their crowded schedules and the competing demands of other litigants that important issues

are sought to be raised only at the last minute. While there

are circumstances in which amendments at the last minute are

unavoidable and there are also circumstances in which

amendments can be made without disturbing the conduct of the

litigation this in my view is not such a case.

It seems to me that the points made by Mr Maconachie have

substance. If the amendments were to be allowed it will be necessary to adjourn these proceedings and vacate the three days that have been set aside. This would come at a cost not

only to the parties but to the Court which has to deal as I

have said with the demands of large numbers of litigants most,

if not all, of whom have strong demands on Court time.

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I did not understand Mr Cutler to dispute that an adjournment

might be necessary in order to enable an investigation of the

factual issues to which Mr Maconachie had referred. Rather,

he submitted that the interests of the applicant could be

protected by an adjournment with an order for costs. It does

not seem to me that that submission takes account of the other

factors that are properly to be considered in determining

whether an application for an amendment to the pleadings

should be made at this stage. For the reasons that I have

given it does not seem to me that the proposed amendment is

one that is compatible with the orderly conduct of litigation

and is not a matter that can be adequately accommodated by an

adjournment and an order for costs.

I should make one other point. Mr Cutler referred to

prejudice to the respondent. The fact of the matter is that

the case has been set down for three days for some time.

Expert reports have been put on by each side. The question of

damages is plainly one that is in issue between the parties.

Had there been affidavit or other evidence of good reasons for

the failure to plead the mitigation point then it might have

been an important factor in determining whether leave should

be granted. Mr Cutler was not able, however, to point to any

convincing reason as to why the pleadings were not in order

before the hearing commenced. He said that there had been

some canvassing of the matter at a directions hearing but it

fell short of any notification of a plea of the kind that has

been embodied in the application for leave to amend.

Accordingly, having regard to the matters to which I have referred, I decline to grant leave to the respondent to amend the defence.

I certify that this and the preceding 5

pages are a true copy of the Reasons for

Judgment of the Honourable Justice

Sackville. 1 n

ssociate: - ~4 -

Dated: 16 December, 1994

Heard:

6 December, 1994

Placer

Sydney

Decision:

6 December, 1994

Appearances:

Mr J. Maconachie QC and Me Foord,

instructed by Shaw McDonald, Solicitors,

appeared for the applicant.

Mr D. Cutler, instructed by Stephen

Crofton Uniacke, Solicitor, appeared for

the respondent.