CONSIDERATION
23 Order 13 rule 2 of the Federal Court Rules permits the Court, at any stage of any proceeding, to order that any party have leave to amend any document in the proceeding in such manner as the Court thinks fit. A notice of motion brought by a party to litigation to amend pleadings close to the hearing date requires a very careful consideration. It is trite to observe that dismissal of the notice of motion will invariably affect the manner in which the moving party presents its case at final hearing, potentially to the prejudice of that party. However it is equally clear that an order in favour of the moving party potentially prejudices the other party to the litigation, which party is now required to meet an amended case.
24 The balance the trial judge is required to bring in considering such an application close to the trial was considered in detail by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. In summary, the Court in Aon found as follows:
An award of costs to compensate the other party for the inconvenience of the trial dates being vacated as a consequence of the amendment to the pleadings is not a panacea: [5], [100];
The Court should recognise any ill-effects of resultant delay upon the parties to the proceedings and the effects on other litigants who are also seeking a resolution to their proceedings: [101];
The nature and importance of the amendment to the party applying for the amendment cannot be overlooked: [102];
The exercise of the discretion requires an explanation to be given where there is delay in applying for amendment: [102]-[103]. The party seeking the amendment 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: [103];
The nature of the amendment requires consideration, including whether they introduce new and substantial claims: [104];
An inference drawn by the Court that the raising of new claims not previously agitated is because of a deliberate tactical decision not to do so militates against the grant of leave to amend pleadings: [4];
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: [102]. Issues of case management in the judicial system are not to be disregarded - it is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings: [5]-[6], [113];
The timing of the application for amendment is a salient issue: [106]. Limits will be placed on the ability of parties to effect changes to their pleadings, particularly if litigation is advanced: [112];
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: [111].
25 Aon has been the subject of extensive consideration in this Court. So, for example, in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 the Full Court observed at [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. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.
26 This observation was endorsed by a Full Court, differently constituted, in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118.
27 In the present case the amendments sought by the respondent to para 16 and para 18 of the Defence, and which remain in contention, are quite distinct. Proposed amended para 16 and para 18(b)(iv) are clearly referable to evidence of Mr Con Mitris, in particular evidence in Mr Con Mitris' witness statement filed 24 January 2011. Proposed amended para 18(d)(ii) raises separate issues of care and control of the prawns at a relevant time, the preciseness with which the proposed amendment is drafted, and is also relevant to the issue whether the Court should grant leave to issue a subpoena to Versacold.
28 In this case I am prepared to grant leave to the respondent to amend paras 16, 18(b) and 18(d) of its Defence in the terms it has sought. I have formed this view for the following reasons.
29 First, while the trial is relatively imminent, the circumstances of this case are not comparable with those in Aon where the relevant party sought extensive amendment of the pleadings after the commencement of a lengthy trial. A four day trial in these proceedings is listed to commence on 14 March 2011, five weeks from now. The applicant has made submissions that, in summary, the effect of leave being provided would result in the vacation of the trial dates, however while adjournment is a distinct possibility, at this stage I am not persuaded that it is an inevitable consequence of a decision in the respondent's favour. This is because:
The evidence of Mr Con Mitris, to which the proposed amendments to para 16 and para 18(b)(iv) relate, was filed on 24 January 2011. Presumably, the applicant has been in a position to give instructions to its solicitors in respect of Mr Mitris' evidence since then, should it choose to do so.
Similarly, the further and better particulars to which the proposed amendment to para 18(d)(ii) relates were filed on 18 November 2010. While Mr Cowen for the applicant made lengthy submissions before me, both on 1 December 2010 and 1 February 2011, to the effect that the proposals are vague to the point of meaningless and potentially could apply to any third party, it appears from both the material before the Court and the submissions of the parties that the only parties possibly in possession of the prawns at the relevant time (other than the applicant and the respondent) were Woolworths and Versacold. Depending on the nature of records in the possession of Versacold and the information which Versacold is in a position to disclose, the applicant may wish neither to file an amended reply nor file additional evidence.
30 Second, even if it becomes clear that the vacation of the trial dates in these proceedings is necessary, I am not persuaded that this consequence would either unduly prejudice the applicant or affect the case-load of the Court so as to impact adversely on other litigants before the Court. I make this observation in light of the facts that:
This is a trial of only four days. Unlike, for example, in Aon, it is not a hearing scheduled over several weeks, the relisting of which would invariably cause difficulties both to the Court, and to the parties.
The order of Dowsett J adjourning the trial on the previous occasion was made in circumstances where the then-listed dates were inconvenient to both the applicant and the respondent (TS 1 November 2010 p 21 ll 20-24). Accordingly, I draw no adverse inference from the previous vacation of the trial dates in considering the possibility that the trial could again be postponed.
As the docket judge, I am in a position to hear the matter in June or July 2011.
The events the subject of the litigation occurred in late 2007 and early 2008. Notwithstanding this, the substantive application was not commenced by the applicant until mid-2010. While the applicant having commenced proceedings is indubitably entitled to its day in Court, time does not appear to have been a critical factor to the applicant in respect of prosecuting its claim. There is no material before the Court to support a finding that the injustice would accrue to the applicant should the trial be postponed.
In any event, at the hearing before Dowsett J on 1 November 2010, while the applicant expressed a preference for the matter to be heard as soon as possible, the applicant was unable to point to any particular prejudice to the trial being held mid-2011 (TS 1 November 2010 p 22 ll 22-23).
31 Third, I accept the submission of Mr Drew for the respondent in respect of the proposed amendments to para 16 and para 18(b)(iv) that the amendments actually reflect the case of the respondent, as indicated in the witness statement of Mr Con Mitris which has already been filed. It is desirable, if possible, that the respondent's Defence actually reflect the position it maintains.
32 Fourth, that it was not possible to obtain evidence from Mr Con Mitris at an earlier stage of the proceedings, and seek amendment to the Defence, is perhaps surprising in light of the fact that Mr Con Mitris is the son of the sole director of the respondent. However this explanation is consistent with the timing of the filing of the witness statement of Mr Con Mitris. I accept the submission of Mr Drew that Mr Con Mitris has been overseas at relevant times and that it has been difficult to obtain his evidence until recently.
33 Fifth, while in my view there is merit to the submission of the applicant that the proposed amendments to para 18(d)(ii) could encompass a wide range of parties and circumstances, nonetheless the respondent has submitted that, following production of documents by Woolworths pursuant to subpoena, it now knows that the prawns were in the possession of Versacold during the six months after sale (TS 1 February 2011 p 16 ll 20-29). In light of that submission, while the proposed amendment could be drafted with more precision, I am not persuaded that it contemplates as infinite a set of either parties or circumstances as submitted by the applicant, or that it is so vague as to be meaningless. In my view however, the respondent should clarify its position once it has the opportunity to examine material produced by Versacold and accordingly I will order the respondent to again file and serve further and better particulars in relation to para 18(d)(ii) of the Defence at that time.
34 Further, while in my view the possibility that Versacold had possession of the prawns at the relevant time has been information apparently available to the parties during the course of these proceedings, particularly in light of evidence before the Court, nonetheless I note the respondent's submission that this circumstance was only confirmed following production of documents by Woolworths in December 2010. While a formal application for leave of the Court to issue a subpoena to Versacold would in my view have been both proper and preferable rather than an oral application at the hearing last week, this does not of itself disentitle the respondent to either a hearing in respect of the subpoena or an order.
35 Sixth, there is in my view no inference to be drawn that the timing of the respondent's application to amend the Defence is a deliberate tactic on the part of the respondent, or in any way motivated by anything other than a wish by the respondent to present a comprehensive Defence in these proceedings.
36 Seventh, I consider that any prejudice suffered by the applicant on these facts in respect of leave granted by the Court to allow amendments to the Defence would be significantly outweighed by the prejudice to the respondent by a refusal to grant such leave. In my view, the circumstances of this case do not warrant such a refusal, although I will seek submissions by the parties as to where the costs of the respective notices of motion should fall.
37 Finally, the applicant has made extensive submissions claiming that the conduct of the respondent in relation to seeking information from both Woolworths and now Versacold is no more than a fishing exercise. On balance, however, I consider that the conduct of the respondent (including its present application for leave in respect of a subpoena) does not constitute "fishing", in the sense of the respondent having made bare allegations without the necessary basis to support them and the subpoena being the mechanism whereby the respondent hopes to find something which will enable it support those allegations (cf Jilani v Wilhelm (2005) 148 FCR 255 at [113]). The reason I take this view is because, in summary:
The respondent denies liability for breach of contract or the TPA in respect of the condition of the prawns it supplied.
The prawns were not in the possession of the respondent at all relevant times.
There is evidence before the Court that an agent of the applicant had examined a sample of the prawns in November 2007 - that is, before the prawns left the possession of the applicant - and that they exhibited no signs of deterioration.
The issue of temperature control of the prawns is potentially an issue of importance. It appears that the only party with relevant temperature records is Versacold.
While the respondent seeks information from Versacold to substantiate this aspect of its Defence, in my view it is not a hopeful exercise on the part of the respondent to support a bare allegation.
38 At the hearing Mr Drew for the respondent submitted that the respondent had sought records from Versacold but that Versacold required a subpoena before it was prepared to provide such records. The material sought by the respondent is described in the draft subpoena, attached to the Respondent's Outline of Argument submitted to the Court on 1 February 2011, as follows:
(A) Records and documents, delivery notes, storage records, temperature records, reports, inspection records, invoices, correspondence and memoranda relating to the storage of prawns sold by the Applicant to Woolworths Limited in or about December 2007 for the period December 2007 until August 2008.
39 In my view it is appropriate that the Court grant leave for the issue of a subpoena in these terms, and make orders for production of documents and inspection, because:
The documents sought are identified with reasonable particularity.
The category of documents is not so wide as to be oppressive.
The material sought is of relevance to the issues in the principal proceedings.
The respondent has demonstrated a legitimate forensic purpose for the production of the relevant documents.
It appears that the respondent has already communicated to Versacold that the respondent would be seeking production of these documents, and to that extent Versacold has been put on notice as to the possibility of service with a subpoena.
40 However, as the trial is currently listed for next month, and as I understand from Mr Drew's submissions that Versacold has indicated a preparedness to provide relevant documentation upon production of a subpoena, I will make orders requiring both prompt service of the subpoena and prompt production of the relevant documentation by Versacold.