Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66 - WASC 2000 case summary

Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66 - WASC 2000 case summary — Zoe

[38]

9 The plaintiff is a substantial public company with extensive resources. Many of the defendants are individual wages employees with no particular means and the other defendants are trade unions. This extensive application to further amend was first made well over six years after the statement of claim was last amended and over seven years since the events which gave rise to the action. The plaintiff has, by affidavit, explained this very considerable delay on the basis that it was considered preferable that there should be one consolidated or omnibus application to amend rather than many applications made progressively over the years as the need for individual amendments became apparent to those having the conduct of the action for the plaintiff. While this attitude may be commendable from a number of points of view, it was a conscious decision by the plaintiff not to seek amendments or to give notice of them as and when the need for them became apparent. In many cases an amendment proposed reflects information of which the plaintiff became aware as a consequence of discovery or interrogatories. Some such information was known to the plaintiff as early as 1993 and the rest progressively over the intervening years, yet the consequential amendment has not been sought nor notice of it given until July 1999. The plaintiff must bear the consequences of the risk which this approach to amendment necessarily involves especially where, by virtue of the delay, the defendants are now likely to be embarrassed in their pursuit of appropriate factual enquiries. It is generally the case that until this application the defendants have undertaken the preparation of their defences on the basis that the live issues between them and the plaintiff are those identified in the existing statement of claim and the consequent pleadings. Necessarily, many interlocutory applications have been fought and decided on the basis of the issues so identified. To the extent that the plaintiff was aware at any earlier time of the need to amend its claim it was the deliberate choice of the plaintiff not to amend, or give specific notice timeously, which now gives rise to the prospect that if some proposed amendments are allowed a great deal of cost and effort would be wasted and the hearing delayed even further. A number of the amendments are the consequence of more detailed preparation by the plaintiff's advisors. In some part, but far from entirely, this is in light of additional evidentiary material which has become available to the plaintiff from discovery and interrogatories. In some instances further evidence has put paid to some factual issues, but in others it has given rise to new ones. The proposed amendments also reflect in part a review by the plaintiff of legal and evidentiary issues. It submits this has only been feasible since the conclusion of the very extended process of discovery. These matters will be considered further in these reasons.

[40]

11 One issue which is raised in response to a number of the proposed amendments is an objection that in truth they give rise to a new cause of action and that they seek to do so beyond the limitation period of six years which is applicable. The plaintiff relies on Rules of the Supreme Court O 21 r 5(5). The discussions by the Full Court of the relevant concept of a "cause of action" in that rule to be found in Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404A; 23 July 1998 and Morgan v Banning, unreported; FCt SCt of WA; Library No 990199S; 21 April 1999 have clarified that the notion comprehends a factual situation which will entitle a person to approach the Court for relief rather than the old categories of action ie, the "form of action". See, in particular, the discussion by Wheeler J in Morgan v Banning at 13 - 19. It is in this sense of describing the factual basis on which the plaintiff approaches the Court for relief as being the cause of action that O 21 r 5(5) empowers amendment where it is just to do so, notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, provided that the new cause of action arises out of the same facts or substantially the same facts as those raised by the existing claim. As has been made clear O 21 r 5(5) is not intended to, and cannot, override the operation of the Limitation Act 1935. It is available, however, as a matter of power, in circumstances where the existing pleading depends upon the same or substantially the same facts as those upon which the proposed amendment relies. Hence, O 21 r 5(5) may be available even though some of the facts out of which the new cause of action arises are peculiar to it and some of the facts out of which the existing cause of action in the pleading arises are peculiar to that cause of action. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old one; Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 240 - 241. Hence, whether a claim is "new" or whether it arises substantially from the same facts as those presently pleaded are largely and often questions of degree; Dye v The Griffin Coal Mining Co Pty Ltd (supra) per Owen J at 5.

[113]

A. The proposed particulars 1(c) and (e) of obstruction at Tom Price are entirely new. They would allege that on 20 June 1992 two identified commercial vehicles were turned back from the plaintiff's premises by picketers and on 25 or 26 June a third. The existing particulars allege that two other identified commercial vehicles were turned back on 21 June 1992, however the plaintiff now seeks to amend that allegation to remove reference to one of those two vehicles. The proposed amendments would identify three new vehicles, different from those previously alleged, each of which was turned back on other than the one day previously alleged. The plaintiff submits that the existing allegations in 49 ought to have led to the defendants' solicitors investigating and securing proofs of evidence from all their potential witnesses as to events at the alleged picket lines on all days. Hence, it is submitted the defendants should not be embarrassed at meeting these new particular factual allegations. The existing 39(a) alleged "a continuous obstruction and interference with the movement of persons and vehicles to and from the plaintiff's premises" from 20 June 1992. In the face of such an allegation it would be surprising indeed had the solicitors for the various defendants confined themselves to the one particular then given of two commercial vehicles turned back on 21 June 1992. These proposed particulars, in part, arise from information revealed by discovery. They were not proposed as soon as the information became known to the plaintiff's solicitors, so that there has been delay by the plaintiff. Given the scope of the principal allegation and the investigation which that allegation ought to have warranted, I am not persuaded that there should be embarrassment or difficulty in their defence of any real significance to those defendants that are affected by this allegation. Nor is there reason to think that any difficulty a defendant may now experience with its preparation to meet the proposed particulars would be more difficult in any significant way than was the position when the relevant discovery was completed. While there was some affidavit evidence offered in support of such a proposition it has in my assessment fallen short of doing so. It is also raised that there is a discovered document of the plaintiff which contradicts each of these allegations. While that appears to be borne out, in part at least, that is hardly a justification in itself for refusing leave. Acknowledging there are such documents, the plaintiff's case is that, nevertheless, it has evidence to support the allegation. The amendments proposed to particulars 1(c) and (e) of obstruction at Tom Price will be allowed.

[149]

101 In very brief terms the proposed 42D alleges knowledge by the defendants of an extensive variety of detailed aspects of the plaintiff's business and contractual activities and their implications. While to some degree these matters reflect allegations in the existing 23, in other respects they raise new matters. The proposed 42E alleges the conduct in 27 - 37B and 39 interfered with the plaintiff's contractual relations in respect of long term supply contracts, third party contracts and the service contract. In so far as this relates to 39, this in part reflects existing allegations in 41(c) and 41(d), although in that context, as will be discussed later, the allegation was limited to direct interference which would introduce new issues of causation. Further and different factual issues would arise from its proposed extension to indirect interference. The proposed particulars to 42E would also repeat by reference allegations in 37C(d), (e), (f) and (g). Once again these present allegations are in the context of direct interference. The proposed amendment would raise them in the different factual context of indirect interference. The proposed 42F alleges the conduct in 22 - 37B and 39 to be an offence against the Government Agreements Act. This is now proposed as an allegation of unlawfulness to support a case of indirect interference by unlawful means. The substance of the unlawfulness alleged is, however, that which had been raised in the existing pleading in 47. There, however, it was in support of a bare claim for breach of statutory duty. While the existing claim is of an allegation of hindering execution of the Hamersley Iron Act and did not go on specifically to refer to the Government Agreements Act, that is a legal consequence rather than an allegation of fact. In any event the provisions of the Government Agreements Act appear to have been directly contemplated in 47 which refers to hindering, preventing or obstructing the Hamersley Iron Act. Those allegations reflect the terms of s 4(2) of the Government Agreements Act. Essentially, therefore, the facts raised by the existing 47 are relied on in support of the element of unlawfulness so that the defendant should not be embarrassed in their defence by the proposed 42F. The proposed 42G and 42H relate to Beales and these have been discussed earlier; see 24 - 26.

Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66

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Judgment (204 paragraphs)

Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66 (17 March 2000)

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Legislation Cited (1)

Cases Cited (14)