Waste Recycling & Processing Corporation v Global Renewables Eastern Creek Pty Limited

[2009] NSWSC 444

CITATION:	Waste Recycling & Processing Corporation v Global Renewables Eastern Creek Pty Limited [2009] NSWSC 444
HEARING DATE(S):	18/05/09 - 21/05/09
JUDGMENT DATE :	29 May 2009
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Application to reopen dismissed.
CATCHWORDS:	Leave to reopen - Principles - Weighing exercise - Importance of regular moving forward of final hearing
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 Bellevarde Constructions Pty Limited v CPC Energy Pty Limited [2008] NSWCA 228 Dennis v Broadcasting Corporation [2008] NSWCA 37 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
PARTIES:	Waste Recycling & Processing Corporation (Plaintiff) Global Renewables Eastern Creek Pty Limited (Defendant)
FILE NUMBER(S):	SC 50020/09
COUNSEL:	Mr M Walton SC, Mr J Potts (Plaintiff) Mr F Gleeson SC, Mr R Foreman (Defendant)
SOLICITORS:	Clayton Utz (Plaintiff) Watson Mangioni (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 29 May 2009

50020/09 Waste Recycling & Processing Corporation v Global Renewables Eastern Creek Pty Ltd

JUDGMENT

The application for leave to reopen

1 Following the reasons given making clear that there was no need for any pleading by the defendant denying paragraph 41C of the plaintiffs amended pleading, Mr Walton sought leave to reopen his case to call Mr Kanofski. The application was heard and in due course dismissed, the court indicating that it would give reasons as soon as practicable. These are those reasons.

2 The application made in its entirety from the bar table was that if leave were permitted, the questions would be limited to Mr Kanofski's reliance on the pattern of deliveries in entering into the council contracts referred to in the particulars letter of 18 May 2009.

3 Although put as an application for leave to reopen and therefore requiring to be separately dealt with, the essential gravamen of the reasons given in the earlier judgment remained pervasive.

4 The matter inheres in question of prejudice to the defendant and the high significance of holding a party to the express position it has taken early in the litigation: being the price extracted by the defendant for not opposing the grant of leave permitting the plaintiff to file its amended commercial list statement.

5 As I made clear in the earlier judgment Mr Walton acceded to the proposition that the pleading could be allowed as long as the plaintiff did not depart from the particulars provided to the defendant by the letter. That was the occasion when the plaintiff, if it would be seeking to adduce further evidence would have had to indicate what that further evidence would be. Had that occurred the defendant's position [in the situation where Mr Kanofski had not given any evidence in his 17 April affidavit going to the reliance issue] would have had to be taken into account.

6 During the argument on the application to reopen Mr Gleeson made clear that such a course of events would have led to an application from the defendant for appropriate discovery of all relevant documents going to the formation of a decision to enter into council contracts having regard to whatever evidence Mr Kanofski, presumably in a new affidavit, would have given as to some assumption that he may have claimed to have made presumably said to induce him to enter the council contracts in the terms in which the contracts were entered into. In that regard Mr Gleeson's submissions included the following:

So, for example… we would then have been entitled to discovery of all board papers, all recommendations from management, all reports and… or legal advice obtained by WSN at the time of entering into a supply contract with the councils. We would need that material to test the proposition that Mr Kanofski was acting in reliance upon an alleged assumption when he entered into particular contracts.

7 Mr Gleeson further contended that the plaintiffs were left in the dark if the plaintiff was now to be permitted to recall Mr Kanofski and to proffer him up as the voice of the plaintiff in establishing reliance. The defendant would be left in the dark as to what was the ‘connect’ between the man doing the work at the ground level and the man who was the CEO of a large organisation.

8 He added the following:

One has to draw the lines between the person who’s dealing at the coalface and the person who’s dealing at the board level in making important decisions and that’s the area of prejudice …we don’t have available to us for cross-examination to test and to seek to expose any flaws in any evidence that might be led by Mr Kanofski. We would be bound by his answers if he says this is the process, if he comes into the witness box and says I made the decision and I did everything, Mr Richards had nothing to do with it, just preparing tenders, I make all the decisions.

Then we are prejudiced because we can’t really test that proposition with the other witness who had given affidavit evidence to say, well I was the person involved in the preparation of the tenders with the councils and I know all about the dealings with the councils, et cetera. Then likewise the reason we can’t test the proposition just as we can’t test it through Mr Richards, we can’t test it through any documents because we won’t know in advance of anything Mr Kanofski says. [What will] tell us what is the internal decision making process within WSN on important commercial matters. Do they [confer] upon you power to make these decisions on your own? Do they go to a board meeting? If their board meetings, are their board papers et cetera.

9 The decision to reject the further application to reopen takes account of the necessary weighing exercise as between:

i. the prejudice to the defendant if the application would be allowed;

ii. the prejudice to the plaintiff if the application would be disallowed.

10 Also importantly the decision took into account the entitlement of the defendant to hold the plaintiff to its clear acceptance of the condition imposed at the time when the amended pleading was permitted: that the plaintiff not depart from the particulars which it had given in its letter of 18 May 2009.

11 Litigation is not a plaything. The parties are expected to take care before making concessions and a party which does make a concession may well not to be permitted to restore the position ante. In this case a deal of additional case management would likely have been necessary in the further steps to be taken for the defendant to be in a position to adjust to any further evidence called from Mr Kanofski. Quite likely Mr Richards would also have had to be recalled.

12 Hence not only was the prejudice to the defendant something which in all of the circumstances outweighed the prejudice to the plaintiff: but also the dictates of the importance of the regular moving forward of a piece of litigation was taken into account.

13 In this State, State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms – “must seek” – to give effect to the overriding purpose – to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” – when exercising any power under the Act or Rules cf Dennis v Broadcasting Corporation [2008] NSWCA 37.

14 The previous reasons quoted from the observations made by Allsop P in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243, Allsop P [at 159 and following]

15 Of special significance was his Honours treatment of the clear statutory duty to assist the Court, and, in a practical way, to co-operate to bring forward the real issues in dispute, which his Honour make clear encompassed the requirement to be clear and precise in the illumination of the issues for trial. As his Honour added:

[At 163] The occasion for this is not merely pleading (using the word broadly to encompass the modern commercial list summons and defence), it extends to all aspects of the engagement in the Court’s processes. For similar responsibilities in the conduct of references, see Bellevarde Constructions Pty Limited v CPC Energy Pty Limited [2008] NSWCA 228 at [55]-[56].

[At 164] [The relevant] responsibility will encompass parties and their legal representatives making clear what is being put and also what they regard as not legitimately part of the controversy, if it is apparent to them that an issue not pleaded or presented is being relied on.

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