Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40

CARUSO AUSTRALIA PTY LIMITED v.PORTEC AUSTRALIA PTY LIMITED

and PORTEC AUSTRALIA PTY LIMITED v.CARUSO AUSTRALIA PTY LIMITED

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

Pursuant to Order 3 Rule 3(1) and (2) I extend the time within which the applicant should file its amended Statement of Claim until 20 March 1985 (being the date it was filed).

Pursuant to the game Rule and subject to an amendment of the respondent's Notice of Motion I extend the time for the filing of the amended defence until the 18 October 1985.

Upon the respondent's Notice of Motion filed on 30 January 1986 and pursuant to Order 13 Rule 2 I order as follows:

(1) that paragraph 10 of the amended Defence be deleted and in lieu thereof the following be inserted "The respondent denies each and every of the allegations and particulars pleaded in paragraph 13 of the amended Statement of Claim".

(2) that paragraph 12 of the amended Defence be amended go that it reads "12 - The respondent denies paragraphs 16 and 17 of the amended Statement of Claim". (This order

(3) The respondent file and serve on the applicant a copy of the amended Defence (as amended to date and by reason of

(4) The respondent, shall pay the applicant's costs of and

(5) The respondent shall further pay, and in any event, the applicant's added costs and disbursements reasonably incurred in the parparation of the applicant's case for trial by reason of paragraph (1) of this order, being costs and disbursements incurred after this date in obtaining or seeking to obtain proof of such facts, allegations or particulars as were not previously in issue upon the pleadings. Such costs and disbursements, unless agreed, shall be taxed and may if appropriate, include fees or disbursements payable prior to trial to

Upon the applicant's Motion pursuant to Notice of Motion filed on 11 February last there will be an order in terms of paragraph 1, there will be no order upon paragraph 2 and the

respondent shall pay the applicant's costs of and incidential to that Motion also. Liberty to apply.

It is important I believe that a further directions hearing be held in the near future. As these orders did not arise

out of a directions hearing I am not confident of my power to now

4, order a directions hearing otherwise than upon an application to that effect. I therefore simply suggest that the parties should

apply for such a hearing to be held within the next four or five

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA

REASONS FOR DECISION Yesterday I heard submissions on two Notices of Motion. The first filed on 30th January last on behalf of the respondent seeks an order pursuant to Order 13 Rule 2 that the respondent be granted leave to amend an already amended defence filed on 10th

October 1985. One of the proposed amendments sought is most

The applicant opposes this application and seeks orders {inter alia) that the amended defence, already filed, be atruck out on the grounds firstly that on the date 1t was filed the time previously ordered by the Court within which it was to be filed had expired. Secondly, it is claimed that the amendments were not consequential upon the applicant's amended Statement of Claim which was filed pursuant to order of the Court, thirdly that the amendment has a tendency to cause prejudice, embarrassment or delay and in the alternative represents an abuse of the process of the Court. The action involves acclaim for damages by the applicant which carried on business as an earthmoving contractor and which in November 1982 had secured a contract for the supply of aggregate. The respondent agreed to design and provide appropriate rock crushing plant which the applicant claims proved incapable of crushing the contemplated quantities and which was otherwise unsuitable. The applicant, relying on the provisions of the Trade Practices Act 1974 and other causes of action claims

On 7 December 1984, Toohey J. made certain procedural orders following a directions hearing. He ordered inter alia that the applicant should file an amended Statement of Claim within 21 days and that the respondent should file any amended Defence within 21 days of receipt of the amended Statement of Claim. Other orders were then made. In fact, the amended Statement of Claim was not filed until 20 March 1985, well beyond the time

Paragraph 12 of the original Statement of Claim set out certain representations made on behalf of the respondent as to the qualities and capacity of the rock crushing plant. Paragraph 13 alleged the representations were false and paragraph 14 set out

"(a) The rock crushing plant was incapable of producing anywhere near 150 tonnes per hour and in fact never produced more than 30 tonnes per hour, even after extensive modification by the Respondent and the addition of an extra crushing component;

(b) The conveyor systems, the Portec primary crusher and the Spokane crusher were used components;

(c) The Aran screens were incapable of sorting 150 tonnes of aggregate per hour and were so designed and constructed that they failed to

pass or properly pass the aggregate according to the specifications;

(d) The plant was not integrated and in fact consisted of independent component parts none of which were designed for use with the other component parts;

(e) The Spokane was unsuitable for crushing rock from the Nillibubbaca quarry site and in fact reduced that rock to a fine unusable powder."

In the original defence, the respondent which denied paragraph 13 of the Statment of Claim, pleaded to paragraph 14 as

"l1. As regards paragraph 14 of the statement of claim:

(a) Save that the respondent says that the rock crushing plant was eventually able to maintain a production rate of 70 tonnes per hour, sub-paragraph (a) is admitted.

(b) Sub-paragraphs (b), (c) and (@e) are admitted,

This constituted a substantial admission of particular (a) (as to capacity), and admissions that substantial sections of the plant were not new, that the screens were incapable of properly coping with the quantities of aggregate required, and that the Spokane portable plant was unsuitable for the contemplated function. It is not possible for me upon an application such as this to assess the actual significance of these admissions but they appear to be such as would preclude the necessity of the applicant calling evidence to support several of

its allegations of breach of warranty and unsuitability.

Be that as it may the amended Statement of Claim filed pursuant to Toohey J's order produced only one substantive amendment to paragraph 14 of the original (paragraph 13 in the amended pleading) and that was that '150'tonnes in paragraphs (a) and (c) was amended to '105', not something, again on its face, which one would expect to be of tremendous importance, especially as the incapability of producing the higher capacity previously pleaded was not in itself originally traversed.

The defence as amended, and filed on18 October 1985 (over six months after the amended Statement of Claim) undoubtedly

served to withdraw most of the earlier significant admissions. It

"10 Save for admitting sub-paragraph (e) of the particulars of falsity, the respondent denies

paragraph 13 of the statement of claim and each and every allegation in sub-paragraphs

(a), (db), (ec) and (d) of the particulars of falsity contained therein."

The respondent's Notice of Motion now before me seeks in effect to withdraw the residual admission contained in the pleadings on this aspect and leave is now sought to amend the defence so as to read in answer to paragraph 13 of the amended Statement of Claim "The respondent denies each and every allegation in paragraph 13 of the Statement of Claim". Thus the substantial admissions are to be substituted by denials.

The respondent contends that the applicant's amendment as to the quantities of tonnes, from 150 to 105 entitles it to withdraw its admission that the "crushing plant was eventually able to maintain a production rate of 70 tonnes per hour" despite the fact that this quantity is still well below the reduced capacity of 105 tonnes of aggregate per hour. As to the admission that certain sections of the plant were 'used', as opposed to new, I am told this was pleaded in error due to misunderstandings between solicitor and client. On the material before me I am far from persuaded that either the amended defence filed, or the amendment now sought, was consequential upon the amendment to the Statement of Claim. It is an area where I must tread with some caution being appreciative that technical and possibly expert evidence may be involved, but I am not satisfied that such amendments are permissible as consequential pursuant to the order of Toohey dg. and subsequent events. Should I in = such

The powers of this Court to amend pursuant to Order 13 Rule 2 are more than wide, they tend to be remedial in that "all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings", Consideration of the authorities indicates that an amendment should only be refused where bad faith 1s demonstrated or where the consequential injury or prejudice to the other party is incapable of remedy. And this reasoning applies to amendments

sought during trial or on the eve of trial. See, for example, Clough v. Frog (1974) 4 ALR 615, where the High Court cited the

words of Bowen L.d. in Cropper v. Smith (1884) 26 Ch D 700 at 710-11:

",..the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases .... I know of no kind of error or mistake which. if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party....as soon a3 it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right."

See also the observations of the majority of the High Court in Leotta v. Public Transport Commission (1976) 9 ALR 437 AT 446. Here the application is not made on the eve of trial. I am told

that the applicant hopes to obtain a hearing date shortly but

interrogatorles for the examination of the respondent are proposed but not yet delivered. Such interrogatories may assist the

applicant in proof of those allegations once admitted but, by

consequence of the proposed amendments, now denied. The

applicant's counsel stressed that further preparation may be required to proof witnesses, including experts, to gather evidence in proof of the allegations which will be required should the amendments be allowed. I readily appreciate these problems but it cannot be said that any prejudice to the applicant cannot be remedied or compensated for by an appropriate order for costs. I recognize that an order as to costs may in fact be an inadequate remedy to a party who by reason of an amendment to his opponent's pleadings is faced with a claim or defence of different perspective. Clough v. Frog (above) was one such case, but in view of the volume of authority on this aspect I would err in holding, with adequate time available before trial, that in the present situation the damage or injury to the applicant is incapable of remedy. These proceedings were initiated a long time ago, the amount claimed is apparently not far short of one million dollars and time remains for the applicant to meet any problems caused by the amendments now sought. The applicant's counsel informed me that due to the passage of time, subsequent use of the plant or perhaps its disassembly, formidable difficulties may be encountered in obtaining expert or other evidence in proof of the deficiencies in issue. These matters, if encountered, indeed the amendments themselves, may become of some significance in evidence. These are matters I cannot anticipate. On the other hand the issues may be crucial and in this type of case where the ultimate decision may rest on findings as to the factual matter I am dealing with, a substantial injustice may be done to the respondent if it is precluded from putting its case in toto. [I

therefore consider that the amendments now sought by the

respondent must be allowed, subject to orders designed to minimise

The present state of this action 1s not satisfactory in part due to the fact that previous directions of this Court have not in all respects been complied with. In the orders I make I endeavour to bring matters up to date in the hope that further delays may be avoided. I make this order subject to an amendment

of the Applicant's Notice of Motion seeking such relief.

l. Pursuant to Order 3 Rule 3(1) and (2) I extend the time

within which the applicant should file its amended Statement of Claim until 20 March 1985 (being the date

2. Pursuant to the same Rule and subject to an amendment of the respondent's Notice of Motion I extend the time for

the filing of the amended defence until the 18 October 1985.

3. Upon the respondents Notice of Motion filed on 30 January 1986 and pursuant to Order 13 Rule 2 I order as

(1) that paragraph 10 of the amended defence be deleted and in lieu thereof the following be inserted "The respondent denies each and every of the allegations and particulars pleaded in paragraph 13 of the

that paragraph 12 of the amended defence be amended so that it reads "12 - The respondent denies paragraphs 16 and 17 of the amended Statement of Claim". (This order is made by consent in the

The respondent file and serve on the applicant a copy of the amended defence (as amended to date and

by reason of this order) within 7 days of this date.

The respondent shall further pay, and in any event, the applicant's added costs and disburements reasonably incurred in the preparation of the applicant's case for trial by reason of paragraph (1) of this order, being costs and disbursements incurred after this date in obtaining or seeking to obtain proof of such facts, allegations or particulars as were not previously in issue upon the pleadings. Such costs and disbursements, unless agreed, shail be taxed and may if appropriate, include fees or disbursements payable prior to trial to expert witnesses by reason of

a "Ne Upon the applicant's Motion pursuant to Notice of Motion filed on1ll February last there will be an order in terms of paragraph 1, there will be no order upon paragraph 2 and the

respondent shall pay the applicant's costs of and incidental to

It is important I believe that a further directions hearing be held in the near future. As these orders did not arise out of a directions hearing I am not confident of my power to now order a directions hearing otherwise than upon an application to that effect. I therefore simply suggest that the parties should apply for such a hearing to be held within the next four or five

I certify that this and the nine preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice Muirhead