CONSIDERATION OF APPLICATION
(a) The Principles
38 There is no dispute about the principles to which the Court should have regard in considering the application. The orders under consideration concern rulings made on matters of procedure. Gibbs CJ, Aickin, Wilson and Brennan JJ said in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177:
" … appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure."
Whilst their Honours eschewed as unnecessary and unwise laying down rigid and exhaustive criteria to be applied by appellate courts in considering such applications, as the "circumstances of different cases are infinitely various", they cited with approval the following statement of Sir Frederick Jordan in In re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318 at 323:
"… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
In this Court, that approach has of course been followed: see e.g. Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor).
39 The Court (Sheppard, Burchett and Heerey JJ) in Décor at 398 - 400 pointed out that "an appropriate litmus test for the general run of cases" in which leave to appeal from an interlocutory decision is sought includes whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court, as well as whether substantial injustice would result if leave were refused and if the decision from which leave to appeal is sought was erroneous: see Niemann v Electronic Industries Ltd [1978] VR 431. Their Honours pointed out that no rigid rules could or should be laid down, and that such considerations provide "general guidance" only. They also recognised the "important distinction" between the exercise of the discretion to grant leave to appeal from an interlocutory decision on a point of practice and procedure from one which involves determining a substantive right.
40 Each application for leave to appeal must be considered in the light of its individual circumstances, guided of course by consideration of the sort of factors referred to above. It is not of benefit, in our view, in this matter to review the authorities to endeavour to refine or limit the relevant considerations. The approach of all parties was consistent with the observations of French J in Bomanite Pty Ltd v Slatex Corp. Australia Pty Ltd (1991) 32 FCR 379 at 391 that the Court will not:
" … interfere with the exercise of judicial discretion [in the making of interlocutory decisions] unless it is satisfied that there has been some error of law or logic or some unfairness which is either apparent on the face of the reasons or implicit in an unreasonable result."
41 The likelihood of leave to appeal being granted is usually a consideration relevant to whether to extend time within which to seek leave to appeal: Deighton v Telstra Corp. [1997] FCA 1568. (Full Court, Lee, Heerey, and RD Nicholson JJ). The reasons for the delay will also generally be a relevant consideration: Croker v Phillips Electronics Australia Ltd [2000] FCA 1731, Stone J
42 In relation to this application the applicant has sought to establish both an error of principle in each of the orders from which leave to appeal is sought, as well as substantial injustice to it flowing from the making of each of those orders. It also contends that, in respect of the orders made on 15 October 2001 covering discovery, the learned judge at first instance failed to consider the unchallenged evidence about the discovery necessary to do justice in the particular case.
43 The error of principle is said to be the failure to appreciate or to apply the case management principles explained by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 (J L Holdings). It is contended that the learned judge at first instance erred in treating the trial date as the primary consideration for each of the orders now sought to be reviewed, and "subordinated all other case management considerations to the maintenance of the trial date". Thus, so the argument ran, the judge had given "presumptive weight" to the trial date and had failed to balance all relevant considerations in deciding to make the orders complained of. It was further contended that J L Holdings required the interests of justice to be the "pre-eminent" consideration in considering whether to make the orders complained of.
44 The applicant's contention in support of its application for an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001 is somewhat circuitous. It is that such leave should be given, because its proposed attack on Orders 1 and 2 of 26 September 2001 necessarily involves an attack on the foundation of Orders 1 and 2 made on 12 June 2001. It therefore submits that it should be granted the extension of time sought to avoid the risk of inconsistency in those orders.
45 It is necessary to address those general submissions severally in relation to the orders now sought to be challenged. It must, however, be pointed out that the joint judgment of Dawson, Gaudron and McHugh JJ in J L Holdings does not support the proposition in the applicant's contentions that the Court, when confronted with interlocutory issues such as those which arise in complex litigation such as this, must acquiesce in any application by an applicant to amend its pleadings, even if that be at the price of a prolonged delay in the proposed trial date. It was put that "an amendment is a matter of right 'for the sake of deciding matters in controversy' and not 'a matter of grace and favour'", based upon comments of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 711, a decision cited with approval in J L Holdings. However, his Lordship did not say that a party should, as a matter of right, be entitled to amend its pleadings, irrespective of the circumstances including any prejudice to the other party which might be occasioned thereby. At 711, Bowen LJ said:
"It seems to me that as soon as 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.
…
The question seems to me to be this, Can you by the imposition of any terms place the other side in as good a position for the purpose of having the question of right determined as they were in at the time when the mistake of judgment was committed?
…"
Indeed, as his Lordship's subsequent observations at 711 reveal, in his judgment the party opposing the amendment would not have incurred any additional costs had the amendment been allowed as the case had been fought in exactly the same way as it would have been fought had the amendment been allowed. In J L Holdings their Honours said at 154:
"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."
As the discussion at 154 following those observations reveals, their Honours had regard to the facts that the application for leave to amend was made before a date was fixed for hearing, that it did not appear to give rise to any complex issues of fact, and even if it did that those issues should be able to be accommodated in the lengthy hearing time allowed, that the issue raised by the proposed amended defence might not be avoided at the trial in any event, and that the respondent in the action ought not be prevented from putting forward an arguable defence which would present a complete answer to the claim. Their Honours then concluded at 155:
"Justice is the paramount consideration in determining an application such as the one in question. … Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."
There was, in that case, no basis for considering that an award of costs would not be an adequate remedy for any prejudice caused by allowing the proposed amendment to the defence.
46 Moreover, as appears from the consideration of the reasons for decision in relation to the orders made on 12 June 2001 and 26 September 2001, Gyles J did not attach to the hearing date (formally fixed only on 26 September 2001 but foreshadowed from 8 September 2000) the pre-eminence attributed to him by the applicant. For instance, in the course of the reasons of Gyles J of 4 June 2001 for allowing the use of certain documents relating to damages, his Honour recognised that the respondents might wish to explore each or a number of the incidents to which those documents referred. Gyles J remarked:
"If, as a result of this, the hearing date needs to be abandoned, then so be it."
That does not demonstrate the pre-eminent commitment to preserving the hearing date which the applicant alleges. In our view, his Honour had regard to a range of relevant considerations, including the nature of the prejudice to the respondents and to the applicant in the making of the orders now complained of. It is necessary to address those orders to indicate why that is so.
(b) Orders 1 and 2 of 12 June 2001
47 In the course of hearing this application, the Court ruled that it refused to extend time to enable the applicant to seek leave to appeal from these orders. The following section of this judgment explains our reasons for that ruling.
48 As noted above, it is an important step in the applicant's attack on these orders that the decision of Gyles J of 20 April 2001 as to the meaning and effect of the 7 March 1997 Order is in error.
49 Although it was put by senior counsel for the applicant that no complaint was made about the decision of 20 April 2001 at the time (or indeed after the Orders 1 and 2 of 12 June 2001 were made and until 19 October 2001) because the reasons did not culminate in the making of orders from which leave to appeal could be sought, it is unsatisfactory that a reasoned decision of the judge charged with the management of such complex litigation as the present should be permitted to be the subject of collateral but fundamental attack some six months after it was made, and after the parties had apparently conducted the ongoing preparations of the matter for trial on the basis of the decision during that period.
50 What is apparent is that the applicant at the time accepted that decision, and proceeded to seek orders enabling it to rely upon those parts of Mr Poche's statement which concerned the LCRs and the LCRs themselves (and which concerned customer incidents not referred to in the FASC or in the witness statements filed by 3 October 1997 as illuminated by the AIPS). When Gyles J, on 12 June 2001, refused to permit that extended use of Mr Poche's statement and the LCRs, again the applicant initially and until 19 October 2001 appears to have accepted that ruling. It did not then seek leave to appeal from Orders 1 and 2 of 12 June 2001. It proceeded to seek an order which would have the effect of extending its pleadings and particulars, that is by treating its witness statements filed after 3 October 1997 as setting fresh boundaries for those pleadings. It was only when it was refused that leave on 26 September 2001 that it sought to challenge directly Orders 1 and 2 of 12 June 2001, and indirectly the decision of 20 April 2001.
51 No real explanation for the applicant's delay in seeking leave to appeal from Orders 1 and 2 of 12 June 2001 has been proffered. Its conduct of the proceeding indicates that initially it accepted the rulings then made. It sought to avoid the consequences of those orders by its application for leave to extend the particulars of its claim, by having the witness statements filed after 3 October 1997 treated as resetting the scope of those particulars. It was only when that application was refused, by Orders 1 and 2 made on 26 September 2001 that it sought to challenge the earlier orders. The absence of any satisfactory explanation for that change of attitude, particularly in circumstances where the parties have proceeded upon the basis of an acceptance of those earlier orders, might itself constitute a sufficient reason to decline to extend the time within which leave to appeal from Orders 1 and 2 of 12 June 2001 might be sought.
52 To that consideration might be added the further factor that the applicant's desire to attack Orders 1 and 2 of 12 June 2001 is but a different route to secure its ultimate objective on this application. That objective is to be able to have its witness statements filed after 3 October 1997 reset the boundaries of the particulars of its claim. In a practical sense, particularly having regard to the elapse of nearly four years between the time when those particulars were fixed by the witness statements filed up to 3 October 1997, and to the very extensive preparation for trial over that period in relation to the case as so particularised, the appropriate course was to consider whether to grant leave to amend the particulars of claim in the way the applicant seeks. The result of that consideration was Orders 1 and 2 of 26 September 2001. The applicant now seeks leave to appeal from those orders. The alleged error of principle asserted on behalf of the applicant, and the balancing of discretionary considerations, arises for consideration on that part of the present application. If that application were to be successful, there would be little need to revisit Orders 1 and 2 of 12 June 2001. If it were to be unsuccessful, there would be little justification in revisiting Orders 1 and 2 of 12 June 2001 as the contentions regarding those orders are much the same as the contentions regarding Orders 1 and 2 of 26 September 2001. Those considerations also provide a reason why the applicant should not now be given an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001.
53 However, we prefer to base our decision to refuse that extension of time upon the ground that the applicant has not demonstrated that the decision of 4 June 2001, which matured into Orders 1 and 2 of 12 June 2001, is attended with sufficient doubt. Indeed, we agree with the reasons for decision of Gyles J delivered on 20 April 2001 and 4 June 2001.
54 The ruling on 20 April 2001 was that the applicant was bound by the case it had pleaded in the FASC and as particularised through its witness statements filed by 3 October 1997. The AIPS provides a resource from which the detailed nature of the claim and its particulars can be discerned. It further meant that (putting aside experts' reports, which Gyles J regarded as outside the operation of his ruling) any witness statements of the applicants filed after that date would fall into three categories:
1. statements which fell within the parenthetical reservation in the 7 March 1997 Order and which contained material relevant to the case as pleaded and particularised: they could be filed without leave and relied on at the hearing;
2. statements which fell within the parenthetical reservation in the 7 March 1997 Order but which were not relevant to the case as pleaded and particularised: they could not be relied upon at the hearing unless the pleadings or particulars were widened, so that they then became relevant to the case as then pleaded; and
3. statements which did not fall within the parenthetical reservation in the 7 March 1997 Order: whether or not they were relevant to the case as then pleaded and particularised, leave was required to rely upon them. Counsel for the respondents acknowledged on the hearing of this application that, provided such witness statements are relevant to the case as pleaded and particularised, it would be a proper exercise of the Court's discretion to permit such evidence to be given at the hearing unless the time of their filing was such as to cause unfair prejudice to the respondents.
55 The applicant contends that that ruling as to the effect of the 7 March 1997 Order was wrong. It submits that the 7 March 1997 Order entitles it, after 3 October 1997 and indeed up to the present time, to file and rely on any witness statements which fall within the parenthetical reservation in the 7 March 1997 Order whether or not they relate to the case as then pleaded and particularised, as reflected in the AIPS of 2 January 1998. It further contends that such statements, once filed, have the effect of resetting and extending the particulars of its case. Thus, it is submitted, the applicant might effectively extend or vary the nature of the particulars by the filing of such statements, even in an extensive way. It places particular reliance on the words "for the time being" and on the parenthetical reservation itself in the 7 March 1997 Order as well as the context in which that was made.
56 The context in which the 7 March 1997 Order was made is enlightening. The proceeding had then been on foot for some 28 months. The applicant had yet to file and serve a statement of claim in satisfactory form. The FASC was the third version of the statement of claim, and the respondents had substantial concerns about its particularity. The applicant's outline of contention on this application acknowledged an "evident lack of particularity" in the FASC. The context in which the 7 March 1997 Order was made was also that the issues the proceeding raised related back to conduct from 1987, and to conduct in respect of which, to a significant degree, the TPC had already commenced and completed separate proceeding. Those matters point to the need to have the applicant's pleadings and particulars closed at a finite point, rather than to be left open ended. They justify the imposition of a deadline (as it happened, 3 October 1997) for the close of the applicant's pleadings. We consider that, in that context, the 7 March 1997 Order was "in lieu of particulars for the time being of the FASC" and its annexed Schedule of Incidents, as Gyles J observed in his reasons of 20 April 2001, to short-circuit further prolonged pleading disputes by having the applicant's witness statements serve as identifying the metes and bounds of the applicant's case. We also agree with Gyles J that the expression "for the time being" was intended to preserve to the respondents the opportunity to seek those particulars in a more structured or formal way if that proved necessary. In the event, no such application was made. It appears that the AIPS served as a suitable document to identify the pleaded facts and particulars by reference to the FASC including its annexed Schedule of Incidents, and the witness statements filed to 3 October 1997.
57 The purpose of the reservation in parentheses in the 7 March 1997 Order was so that the applicant was not disentitled from relying upon information acquired through discovery or inspection, or by investigations made after its first tranche of witness statements were filed. It does not follow, as the applicant contends, that information gleaned after 3 October 1997 would automatically entitle it effectively to amend and extend the particulars of its claim by the filing of further witness statements. The orderly conduct of litigation does not normally work in that way. Pleadings are closed; discovery and inspection are given by reference to the pleading; and the matter prepared for trial. Amendment of the pleading after the close of pleadings is by leave, whether the basis of the application for leave to amend is information acquired after the close of pleadings, or for some other reason. There is no reason to think that Burchett J contemplated a different regime in this matter. Indeed, as the parameters of discovery and inspection would be fixed by the pleadings and particulars, in this case his Honour had reason to consider that the extent of discovery and inspection and would not throw up material for new factual claims. It is contrary to common sense to think that his Honour intended to leave the applicant's case open for expansion at the unfettered option of the applicant, which option could be exercised perhaps many years later. The focus of the management of the proceeding since the AIPS has been to advance towards trial by reference to the issues as so delineated by the pleadings and particulars. Of course, as Gyles J recognised, an application for leave to amend the pleadings or particulars can be made at any time. But that does not support the applicant's contention about the effect of the 7 March 1997 Order. Accordingly, we agree with the reasons for decision of Gyles J given on 20 April 2001 as to the effect of the 7 March 1997 Order.
58 Gyles J held on 20 April 2001 that the topic of the use of the LCRs did not arise out of the parenthetical reservation in the 7 March 1997 Order. Mr Poche's statement was that LCRs had been maintained for many years, including customer statements of the reason why the applicant's services were no longer being used. The LCRs had been discovered by the applicant prior to 3 October 1997, certainly those up to 30 June 1995 to which time the applicant now alleges loss and damage.
59 The application for leave to rely at the hearing upon the challenged parts of the statement of Mr Poche and the LCRs was the subject of the reasons for decision given on 4 June 2001 and Orders 1 and 2 of 12 June 2001. If that leave were to have been given, its effect would have been very significantly to extend the applicant's particulars. In the course of arguments, the Court was told that the particular events referred to in the AIPS (in excess of 800) would be increased by about 1000.
60 In considering that application, Gyles J referred to Mr Poche's proposed evidence the subject of objection. He referred also to the Applicant's Summary of its Case on Loss and Damage, filed on 25 May 2001, and to the annexed "methodology report" of the applicant's proposed expert. His Honour, it is accepted, properly appreciated the purpose of the challenged evidence of Mr Poche and the LCRs, as going both to the applicant's case on liability, as part of the proof that the applicant lost customers to the respondents by reason of the alleged unlawful "predatory" conduct, and to its case on damages.
61 His Honour then found, again a matter not disputed by the applicant, that the proposed use of that further material on the issue of liability would have "massive consequences" for the future hearing of the proceeding. He observed that further investigation which would be prompted would be likely to involve statements "from probably hundreds of witnesses" and the discovery process (which, as noted above, had taken in excess of three years) would "need to effectively commence again". In considering whether to grant the leave sought, his Honour said:
"In my opinion, there is no doubt that the respondents will suffer irredeemable prejudice if the applicant is permitted to use this material in the way it seeks. It is more than three and a half years since the expiry of the time limited by Burchett J for particularising a case which had by then been on foot for two years, and which relates, for the most part, to the period between 1987 and 1994. The loss of documents, the loss of relevant personnel and the fading of memories cannot be remedied by any order the Court can make."
He was satisfied on the evidence "together with commonsense" that, in relation to the LCRs now sought to be relied upon (in excess of 2500), there would be customers to whom the LCRs relate who the respondents could not now locate, or who have ceased to exist since 3 October 1997, or whose relevant officers either will no longer be able to be traced or whose memory will have significantly faded. In addition, the respondents themselves will have "severe difficulty" in obtaining instructions as to their dealings with those customers because of the loss or destruction of records and the turnover in personnel which has occurred since 3 October 1997. The applicant through counsel contended that, to some degree, those findings may overstate the effect of the evidence adduced by the respondents on those matters. We do not think that that contention (even if correct, a matter which it is not necessary to pursue) demonstrates that the conclusion that to allow the use of the proposed evidence on the issue of liability would seriously prejudice the respondent was erroneous. The material relied upon by the respondents, particularly having regard to the passage of time extending over some 13 years, was a sound basis for his Honour's finding on the score of prejudice to the respondents.
62 His Honour also addressed the reasons advanced by the applicant as to why the material in issue had not been put forward earlier. He concluded that Mr Poche's disputed evidence, including his reference to and reliance upon the LCRs, could have been filed by 3 October 1997. Thus, in accordance with his ruling given in the reasons for decision published on 20 April 2001, it was necessary for the applicant to seek leave to rely upon that proposed evidence. The potential effect upon the applicant's case on liability by refusing the leave sought was also considered. It was not that the applicant would be shut out from pursuing any case which it wished to pursue. It was that the applicant would be unable to rely upon some evidence which it alleges would support its case. But its case was, in essence, one which had been the subject of the TPC proceeding and was sought to be proved by establishing the extensive factual allegations contained in the FASC and its annexed Schedule of Incidents and in the witness statements filed by 3 October 1997, as explained in the AIPS. That process identified the material relied on, including against the fourth respondent and in relation to the causes of action based upon contravention of s 46 of the TPA and for conspiracy. As his Honour said:
"The case which it set out to make is still available to it. The applicant was not, of course, and still is not, limited to the Trade Practices Commission's evidence. The AIPS is far reaching. It must be borne in mind that the applicant was a participant in the relevant industry at the relevant time, and between the time that the TPC proceeding was commenced and October 1997 the applicant had ample time to consider evidence available from its own resources, including, as we now know from Mr Poche's statement, the LCRs."
63 His Honour then addressed the use to which the applicant sought to put the challenged evidence on the issue of damages. On that topic, his Honour regarded the use of the LCRs on a "macro level", i.e. as part of the proof of the applicant's overall rate of customer loss at a relevant period and not as individual instances of predation by one or other of the respondents, as important to the applicant's case. At the level of individual instances of alleged customer loss by predatory conduct, such evidence was not necessary as there were many such examples already identified in the AIPS. On the other side of the scales, the intended use of the LCRs would not, his Honour concluded, have such serious consequences for the respondents as he considered that the respondents would not need to investigate each of the customer losses identified in the LCRs as they would necessarily have done if those LCRs were received as evidence going to liability.
64 Hence Orders 1 and 2 made on 12 June 2001 treated differently the reception of the disputed evidence of Mr Poche and the LCRs in relation to the issues of liability and damages.
65 Those reasons for decision given on 4 June 2001 do not indicate that his Honour treated the proposed trial date as pre-eminent, so that the balancing of relevant considerations was inappropriately distorted. His Honour is not shown to have erred by failing to take into account relevant considerations, or by taking into account irrelevant considerations, in the exercise of his discretion on that issue. He addressed the issues of injustice to the applicant and to the respondent by refusing or granting the leave sought. It is correct, as senior counsel for the applicant contended, that the evidence of the respondents as to the prejudice they might suffer if the leave sought were to have been granted is not overwhelmingly strong. But, that does not demonstrate error on his Honour's part in accepting that such prejudice would exist. Indeed, certain of his Honour's observations in his reasons for decision of 17 August 2001 referred to below indicate that he had not unthinkingly accepted that evidence. The prejudice to which his Honour adverted was, as he said, also a matter of commonsense having regard to the elapse of time and to the consideration that the prolonged process of discovery would have to be undertaken anew with yet further extensive delays in the matter coming to trial. It is not a matter for adverse criticism, but of obvious common sense, to observe (as his Honour did) that the admission on the issue of liability of the disputed parts of Mr Poche's statement and the LCRs generally was "likely to have a significant effect upon the preparation for and hearing of" the case (reasons of 20 April 2001) and would have "massive consequences for the future hearing of" the case (reasons of 4 June 2001).
66 We accordingly do not consider that Orders 1 and 2 of 12 June 2001 are orders which were made through some error of principle or by some failure to have regard to the prejudice to the applicant by the terms of those orders or by some other error which would warrant leave to appeal, even if the application for leave to appeal had been made within time. It also follows that, in the light of the principles to be applied in considering whether to extend the time within which leave to appeal from Orders 1 and 2 of 12 June 2001, we are firmly of the view that such an extension of time should be refused.
(c) Orders 1 and 2 of 26 September 2001
67 These orders concern the refusal of Gyles J to permit the applicant to expand the particulars of its claim. They were made in relation to material contained in witness statements filed after 3 October 1997, other than that material in the statements of Mr Poche and the LCRs with which his Honour had dealt in Orders 1 and 2 of 12 June 2001. As Orders 1 and 2 of 26 September 2001 indicate, his Honour ruled only on the reception as particulars of those parts of the witness statements referred to in the Leave List and the 18 subsequent statements which referred to individual lost customer incidents going beyond those particularised by 3 October 1997. Any other issues concerning the reception into evidence of those statements, to the extent to which the respondents objected to them, were deferred to the hearing.
68 His Honour's reasons for Orders 1 and 2 of 26 September 2001 are contained in the judgment given on 17 August 2001.
69 Consistently with his ruling in respect to the disputed parts of Mr Poche's statement and the LCRs generally, he considered that from the respondents' point of view there could not be a fair trial of lost customer incidents first raised in the witness statements filed by the applicants in 2001 but relating to incidents extending back many years. For reasons we have already given, we do not consider that his Honour is shown to have erred in taking that view. Once that view was taken, it clearly was an important factor to which his Honour should have had regard, and did have regard, in the exercise of his discretion whether to grant the leave sought.
70 His Honour also had regard to the absence of any "satisfactory or adequate explanation" from the applicant as to why the particular lost customer incidents were not brought forward as part of its allegations at a much earlier stage. It is not contended by the applicant that this factor was one to which his Honour ought not to have had regard, or that it was not open to him to find that no satisfactory or adequate explanation for the delay had been given.
71 The third and fourth considerations to which his Honour had regard are to a degree interrelated. They concern the consequences to the parties of allowing the additional lost customer incidents to form part of the applicant's particulars of its claim, and then in turn the consequence to the proposed hearing date for the trial. As noted above, his Honour accepted that the respondent would need to investigate in detail, and give discovery and inspection in relation to, each further individual customer incident particularised. Whilst being somewhat cautious about accepting the respondents' assessment of the amount of work so required, it is clear that he accepted that the additional work would be extensive. He also regarded that work as necessarily diverting attention and resources from work towards preparation for the trial, which had from September 2000 been proposed to commence in early 2002. The reasons why such additional work would be necessary are explained in greater detail in the reasons for decision given on 4 June 2001. It was also explained then by his Honour why the undertaking of that additional work would imperil the trial date then proposed. His Honour regarded the proposed widening of the case, with that consequence of delay, as being "an affront to justice" having regard to the facts that the events to which it relates occur from the late 1980s and that the proceeding had been on foot since 1995.
72 It was appropriate, in our view, for his Honour to have had regard to those considerations. His Honour was aware of the need to do justice between the parties. He said:
"I am well aware that in many quarters the pendulum has swung against taking case management into account when considering discretionary interlocutory decisions and stress is laid upon the primary duty of the Court to do justice. On occasion, this seems to be translated into doing justice to the party which is seeking the procedural interlocutory indulgence without regard to the many facets of justice, including the interests of the other parties to the litigation, of other litigants and of the public."
His reasons for decision given on 4 June 2001 illustrate also that his Honour was of the view that the proposed widening of the applicant's claim by reference to lost customer incidents did not give rise to a claim which it could not otherwise pursue but merely involved further evidence to support its existing claim, and further that its existing claim was already proposed to be made out in part by many lost customer incidents referred to in the AIPS.
73 In our view, these are matters to which his Honour was entitled to have regard in considering the application to extend the particulars. It is not the case that the Court must acquiesce in any application to amend a claim, however belatedly it is made. The litigants and the community are entitled to expect that disputes brought before the Court will be dealt with fairly and efficiently. The resources of the Court are not unlimited. They must be made available to all litigants, so as to ensure as far as is reasonably possible that justice is delivered in as speedy a manner as the particular circumstances of the case warrant. His Honour did not, as contended, treat the proposed hearing date as "sacrosanct". Rather, as we read his Honour's reasons, he was conscious of the desirability of this complex litigation coming to trial in the near future. That was entirely appropriate having regard to its history, and the period of years to which the events the subject of the proceeding relate. The applicant accepted that, by allowing the proposed extension of its particulars by giving leave to rely upon the witness statements filed after 3 October 1997 to the extent that they deal with lost customer incidents, there would have been a very significant delay before the matter would again approach readiness for trial.
74 We are not persuaded that, in deciding to make Orders 1 and 2 of 26 September 2001, his Honour in fact gave pre-eminence to the need to preserve the trial date. The desirability of the matter coming to trial in the relatively near future, having regard to the time when the events the subject of the action first occurred and to the extent and complexity of the detailed allegations, was a matter proper for his consideration. But his Honour's reasons disclose that that was but one of the factors to which he had regard, and he did not subordinate those other factors to the adherence to the proposed trial date. In reaching his conclusion, we do not consider that his Honour failed to have regard to the nature and the extent of the prejudice to which the applicant might be exposed if it were not permitted to rely on the statements filed after 3 October 1997 referring to lost customer incidents not previously referred to in its particulars. Nor do we consider that his Honour was in error in his perception of the nature and extent of that prejudice. Indeed, we did not understand that the applicant's counsel ultimately contended that he was. Moreover, as we have also indicated above, we are not persuaded that his Honour regarded the trial date as immutable, irrespective of the circumstances. When giving the applicant leave to rely on that part of Mr Poche's statement which referred to previously unparticularised lost customer incidents and the LCRs referring to them, relating to the quantification of its damages, his Honour specifically recognised that one consequence might be that the trial could not proceed at the time then contemplated if the respondents were unable fairly to investigate and respond to those new allegations and otherwise to be ready for trial at the time proposed.
75 For these reasons, we do not consider that the exercise of his Honour's discretion miscarried in refusing to allow reliance upon those statements as specified in Orders 1 and 2 of 26 September 2001.
76 We are also of the view that there is no error in his Honour's deciding that, apart from refusing to permit the proposed extension of the applicant's particulars by giving leave to prove individual customer incidents not referred to in the AIPS, the question of whether the applicant should have leave to rely on any statement of evidence filed after 3 October 1997 should be left to the trial. At that time, his Honour will address whether that material is relevant having regard to the applicant's case as pleaded and particularised. If it is relevant, he will consider whether leave is necessary in the light of the reservation in parentheses in the 7 March 1997 Order. If leave is necessary, the respondents' counsel acknowledged that his Honour will largely be guided by whether the respondents are prejudiced in any real and material way by being served with the particular witness statement after 3 October 1997.
77 In all the circumstances, including his Honour's consideration of the interests of justice to the applicant, and the respondents, and generally, his Honour is not shown to have fallen into error. We therefore refuse leave to appeal from Orders 1 and 2 of 26 September 2001.
78 It should also be observed that his Honour has made no order which finally precludes the applicant from seeking to add to its pleading and particulars any further specific allegations at any time. His Honour's rulings relate to the proposed extension of the applicant's particulars by adding new lost customer incidents in an endeavour to further establish its primary allegations as already particularised, including by a number of lost customer incidents referred to in the statements filed to 3 October 1997 and in the AIPS. If there are particular and significant facts which the applicant wishes to prove at the hearing, not presently covered by its pleading and particulars as identified from the FASC with its attached Schedule of Incidents, and from the statements filed by 3 October 1997, as referenced in the AIPS, the applicant may still formulate any proposed amendment and apply for leave to amend its particulars in that respect.
(d) The Trial Date Order
79 The applicant accepts that it was appropriate for Gyles J, in September 2000, to fix a provisional commencement date for the trial and that that date should have been early 2002. It complains, however, that the formal fixing on 26 September 2001 of 11 March 2002 as the date upon which the hearing would commence involved reviewable error.
80 The basis of its contention is that it was or should have been apparent to his Honour on 26 September 2001 that the matter would not be ready for trial by that date. The applicant refers to the ongoing process of discovery, including the orders made subsequently on 15 October 2001 which would result in further discovery by the respondents up to 14 December 2001, and to the further order made on 26 September 2001 which would result in discovery by a third party related to the first respondent by 31 December 2001. That discovery was aimed principally at procuring access to documents sought by the expert accountant engaged by the applicant for the purposes of a proposed expert report on the applicant's damages. The timetable fixed for that report by an order made on 26 September 2001, in the light of the subsequent discovery orders, was the end of January 2002. The timetable then for the respondents' expert reports in response extended virtually to the eve of the trial date. The applicant also points to its claims that it is entitled to considerable further discovery, and that those claims will yet further extend the time needed to prepare its case for trial properly.
81 We do not consider that it has been shown that Gyles J erred in principle in making the Trial Date Order by allowing case management considerations to prevail at the expense of other considerations, including the need to provide to the parties a fair trial. His Honour proposed that trial date in September 2000, and it is clear that subsequent interlocutory directions were aimed at ensuring that the parties would be ready for trial at that time. In our view, that is a proper and sensible approach to the management of complex litigation. It is common now, in the case of complex litigation, to fix a trial date tentatively and then to work backwards by giving directions from time to time aimed at securing the preparedness of the parties for that trial date. It is also a common experience that in cases of urgency, even in complex litigation, the parties can prepare for trial in a relatively brief period of time and conduct the trial in a fair and satisfactory manner. It is also a not uncommon experience, especially in cases of complex litigation where the trial might be expected to last many months, that the parties commence the trial even though their preparation has not been fully completed. Judges, in such circumstances, have demonstrated a capacity to secure a fair trial for the parties by steps such as allowing a break after the opening, or a break in the course of the evidence from time to time, by allowing the opening to be given in stages (for example, separate openings on liability and damages) and by other procedures.
82 There is no reason to think that Gyles J would not consider and, if appropriate, be responsive to any request by the applicant to adopt one or more of such procedures if he were satisfied that it was necessary or desirable in the interests of justice. It should not be assumed that his Honour's fixing of the trial date to commence on 11 March 2002 involved the applicant being required fully to open its case, irrespective (for example) of whether the respondents had then complied with orders for further discovery by them; and to proceed without any respite to adduce all of its evidence and then the respondents also presenting their openings and evidence without any interruption. Nor should it be assumed that his Honour, in the light of further matters which might come to light hereafter, might not later entertain the deferral of the commencement of the hearing. He has already set back the hearing by one month from the commencement date he first proposed in September 2000.
83 It is important to recognise that the issue now to be addressed is whether the Trial Date Order was made in circumstances which would justify this Court in granting leave to appeal from that order. For the reasons given, we are not persuaded that the Trial Date Order is attended with sufficient doubt as to its correctness through some error of law or that that order would work substantial injustice upon the applicant if leave to appeal from that order were refused.
84 Accordingly leave to appeal from the Trial Date Order should be refused.
(e) Orders 1 to 3 of 15 October 2001
Order 9 of 15 October 2001
Order 10 of 15 October 2001
85 In our view, these aspects of the current application can be dealt with relatively shortly.
86 The applicant contends that the evidence is undisputed that its independent expert accountant requires greater discovery from the first, third and fourth respondents than that for which Orders 1 to 3 of 15 October 2001 provide. It draws attention to comments of Gyles J in his reasons for decision of 17 August 2001 to the following effect:
"1. Discovery on an urgent basis should be given of all records at the macro level (if any) which are essential for the completion of the applicant's expert report as to damages on the primary basis advanced by the applicant's expert; discovery of records at the macro level which relate to the alternative check method should be made promptly; there is to be no further discovery based on the evidence of Mr Jansen without further specific application."
It also points out that, at his Honour's direction, the accounting experts for the parties had conferred and that there was disagreement between those experts, reported to his Honour, as to whether or not it was necessary for the first, third and fourth respondents' discovery of the documents the subject of those orders should be "at Business Entity level and above".
87 It is only that limitation upon the discovery made by the first third and fourth respondents by Orders 1, 2 and 3 of 15 October 2001 respectively in respect of which the applicant complains.
88 In our view, leave to appeal from those orders should be refused. The terms of each of those orders included that the further discovery so ordered be "in the first instance". That expression indicates that his Honour was not foreclosing an application for discovery of the categories of documents referred to below the level of the Business Entities as defined. His Honour may well grant such an application if made. He has decided only that, in the first place, further discovery at that level should be given. He may expect that once such discovery has been given, and the discovered documents inspected, that will suffice for the preparation of the expert's report by the expert accountant engaged by the applicant. But the orders from which leave to appeal is sought do not preclude a further application for more extensive discovery of material if that expert then still considers it necessary.
89 In approaching that issue in that way, we do not consider that Gyles J has been shown to have fallen into some arguable error of principle or has made orders which produce substantial injustice to the applicant so as to warrant the consideration of those orders by the Full Court. Accordingly, leave to appeal from Orders 1 to 3 of 15 October 2001 should be refused.
90 The dismissal of pars 4 and 6A of the applicant's motion of 28 June 2001 by Order 9 of 15 October 2001 also does not foreclose the applicant from renewing an application for further discovery, if that proves necessary, in the future. In our view, his Honour's orders of 15 October 2001 were directed to "clearing the decks" of the outstanding motions for discovery. His Honour's orders of 15 October 2001 imposed upon the respondents the obligation to give further discovery "in the first instance" in relation to outstanding discovery issues.
91 In that context, in our view, Order 9 of 15 October 2001 is not shown to give rise to any matter of principle which the applicant has shown might be erroneous or to work injustice to the applicant so as to warrant the attention of the Full Court. We consider that the application for leave to appeal from Order 9 of 15 October 2001 should also be refused.
92 It also follows that the application for leave to appeal from Order 10 of 15 October 2001, the costs order, should also be refused.
Orders
93 In our judgment, the following orders should be made:
1. The application for an extension of time within which to seek leave to appeal from Orders 1 and 2 of 12 June 2001 be refused.
2. The application for leave to appeal from Orders 1 and 2 of 26 September 2001 and from the Trial Date Order be refused.
3. The application for leave to appeal from Orders 1, 2 and 3 of 15 October 2001 insofar as those orders limit the further documents to be discovered by the first, third and fourth respondents to "documents at Business Entity level and above" and from Order 9 of 15 October 2001 insofar as that order dismissed pars 4 and 6A of the applicant's Amended Notice of Motion of 28 June 2001 and from Order 10 of 15 October 2001 be refused.
4. The notice of motion of the first and fourth respondents of 22 October 2001 be dismissed.
5. The notice of motion of the third respondent of 25 October 2001 be dismissed.
6. The applicant pay to the first, third and fourth respondents their costs of and incidental to the above applications.