Riverina Wines Pty Limited v Tetra Pak Marketing Pty Limited & Ors

DECISION : 1. Leave is granted to permit the plaintiff to further amend the statement of claim strictly in accordance with the Schedule annexed to this judgment.; 2. By reason of the delay in seeking leave to amend the plaintiff is to pay the defendants' costs of the motion.

CATCHWORDS : Leave to amend statement of claim

LEGISLATION CITED : Civil Procedure Act 2001 Trade Practices Act 1974 (Cth)

Burford v Clifford [1932] 2 Ch 122 Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 CASES CITED : McGee v Yeomans [1977] 1 NSWLR 273 New Cap Reinsurance Corporation v Reaseguros Alianza SA (2004) 186 FLR 175 Rodgers v Federal Commissioner of Taxation (1998) 158 ALR 220 Weldon v Neal (1887) 19 QBD 394

Riverina Wines Pty Limited (Plaintiff) PARTIES : Tetra Pak Marketing Pty Limited (First Defendant) Australian Natural Foods Holdings Limited (Second Defendant) Classic Foods Pty Limited (Third Defendant)

SJ Stanton (Plaintiff) COUNSEL : NE Chen (First Defendant) R McKeand SC (Second Defendant) R Cavanagh (Third Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

2003/20308 RIVERINA WINES PTY LIMITED v TETRA PAK MARKETING PTY LIMITED & ORS

The notice of motion 1 By notice of motion filed 8 November 2006 the plaintiff seeks leave pursuant to sections 64 and 65 of the Civil Procedure Act 2001 to further amend a statement of claim first filed on 11 November 2003. On 6 April 2005 an amended statement of claim was filed in which the plaintiff pleaded, in a slightly more elaborated way, the action against the second and third defendants pursuant to s 52 of the Trade Practices Act 1974 (Cth). The original statement of claim and the amended statement of claim were otherwise indistinguishable. 2 The proposed further amended statement of claim, the subject of this application, is annexed to the affidavit of Penelope Jane Cafe, dated 6 November 2006. Quite apart from the delay in the hearing of the motion, the leave that is now sought is four years after the proceedings were first commenced and over two years after the filing of the first amended statement of claim in April 2005. 3 The defendants each point to the fact that this delay is largely unexplained and that, in combination with other matters to which I will presently refer, the discretion to amend should be refused. 4 On a close analysis of the proposed amended statement of claim, the amendments that are sought fall loosely into two categories. There are what I will describe as "substantive amendments" and a second category of amendments that elaborate on the original statement of claim in various ways, for example by furnishing additional particulars, without altering the basis upon which the claim in damages is brought. 5 The plaintiff does not seriously dispute that the substantive amendments that are sought are significant. There is an amendment which is specific to the third defendant and which would have the effect of adding fresh causes of action in contract, in negligence and under s 74 of the Trade Practices Act. Each of these causes of action are statute barred. The third defendant objects to leave being granted to add these causes of action on the basis that they do not arise from the same (or substantially the same) facts as those giving rise to the existing cause of action as required by s 65(2) of the Civil Procedure Act. I will return to consider this submission later in this judgment. 6 All three defendants object to a more significant amendment which would extend the basis of their liability by the addition of an alternate causal element to that which was originally pleaded and particularised as being the sole cause of the damage that the plaintiff claims to have suffered as a consequence of their collective conduct. Although the case that the plaintiff brings against each of the defendants differs in material respects, each of the defendants claim that it will suffer the same irremediable prejudice were leave to be granted at this time to allow the plaintiff to plead an alternate causal basis of liability. 7 By contrast, the second category of amendments were not strenuously opposed by any of the defendants. Having regard to the breadth of the discretion provided for in s 64 of the Civil Procedure Act, I propose to grant leave to file a further amended statement of claim, inclusive of these amendments. In the result, the plaintiff's case will be more fully particularised, even if this was not the plaintiff's intention in seeking the grant of leave. I also note that neither the first nor the second defendants have yet filed a defence, it being apparently agreed between the parties that discovery would occur before the pleadings have closed. These amendments will also allow the defendants to better focus on the case that the plaintiff advances, and the case that they have to meet. This will facilitate the preparation of a defence and in turn advance the progress of the matter to hearing. 8 I have attached to this judgment a schedule of those amendments which have attracted a grant of leave, some of which are referable to the amendments in the uncontentious category. The orders ultimately made will be referable to that schedule. 9 I move now to consider whether leave should be granted to allow the substantive amendments. The facts in summary 10 The plaintiff was a wine maker carrying on business in Griffith, New South Wales. The first defendant was a packaging manufacturer and marketer of a packaging system known as the Tetra Brick Aseptic Packaging System. In 1998 the plaintiff used the first defendant's packaging system to package its wine for sale. 11 For the purposes of marketing that system the first defendant provided the plaintiff with a brochure entitled "Tetra Brick Aseptic Packaging System for Wines" and, by provision of that brochure, made various representations with respect to the suitability of the system as a method of packaging as an alternative to, and as suitable as, wine bottled in glass. The first defendant further represented that in all other respects the packaging system guaranteed a suitable sterile environment in which the wine would be retained for consumption according to recognised standards of hygiene and, ultimately, it was said that the system would preserve the appearance, aroma and flavour of the wine for domestic and export consumption. 12 During August and September 1998 the plaintiff entered into an agreement with the second defendant. The second defendant was a commercial packager of wine who utilised the first defendant's system of packaging in its packaging process. A term of that agreement required the second defendant to package the wine, specifically a one-litre variety, using that particular packaging system. The plaintiff's wine was packaged by the second defendant in October 1998 and September 1999 in this way. Wine of various varieties were packaged in accordance with that arrangement and released for sale. 13 In August 1999, the plaintiff entered into a further agreement with the second defendant, again utilising the first defendant's packaging system to package its wine, only by the terms of this agreement the wine was packaged into 330ml containers. This packaging was undertaken in September 1999. 14 In October 1998, the plaintiff entered into an agreement with the third defendant, who was also a packager of wine, utilising the first defendant's packaging system. The terms of this agreement were that various wine varieties would be packaged, but only in 330ml containers. The packaging of this wine was undertaken between November 1998 and December 1999. 15 By February 2000, wine packaged by the second and third defendants utilising the first defendant's packaging system suffered from oxidation, rendering it unsuitable for sale or consumption. 16 The mechanism that was likely to have stimulated the chemical process whereby sulphur dioxide disappeared from the packaged wines, thereby causing the wines to oxidise, is the subject of expert evidence. It is this aspect of its case against each of the defendants that the plaintiff wishes to amend. Whilst in the original pleading the causal agent was particularised in various ways, in each case it was referable to the presence of hydrogen peroxide. The proposed amendments seek to add a causal element entirely unconnected with the presence of hydrogen peroxide, namely the unacceptable presence of oxygen inside the packaging during the packaging process or the contamination by air subsequent to packaging. 17 After receiving notice of the contamination in 2000, those stocks of the plaintiff's wine that had been distributed in New Zealand were recalled and destroyed. In 2003 the New Zealand distributor destroyed the remaining stocks of unsold wine in its warehouse. In late 2003, somewhat surprisingly, just prior to the commencement of the proceedings, the plaintiff destroyed the contaminated wine that was stored in its warehouse facilities on mainland Australia. 18 As an incident of its packaging procedures and protocols, the second defendant retained samples of each production run of packaged wines for a period of 12 months. This involved taking two samples from the production line at the commencement of the production process which were then labelled and stored. One thousand cartons per run were retained as samples in this way. It would appear that the retained samples would have been available when the contamination of the wine first surfaced in February 2000 but since proceedings did not issue until October 2003 (in fact it would seem no claim or complaint of any kind was made by the plaintiff until that time), the second defendant destroyed the samples and, in the result, does not currently have any samples from the particular production runs that are the subject of these proceedings. 19 There is no evidence as to what systems or protocols were in place for the retention of samples at the premises of the third defendant. For the purposes of dealing with the questions raised by the amendments that the plaintiff now seeks however, I do not regard the absence of this evidence as material. 20 For the purposes of determining whether or not leave should be granted, I am satisfied that as at the date of the filing of the notice of motion, and the supporting affidavit which annexes the proposed further amended statement of claim, there remain only eight packages of the plaintiff's wine that were packaged by either the second or the third defendants in either 1998 and or 1999. I am also satisfied on the basis of the affidavit of Mr Baldwin that these eight packages are wholly inadequate to permit the defendants to test in any rigorous or scientific way the alternate theory that the plaintiff now wishes to advance as to how and why the wine oxidated. They are also too few in number to enable a statistical sample to be established such as might demonstrate or replicate how the plaintiff's wines were packed at the relevant time. I am also satisfied that the reports and the testing that has been performed to date do not enable the issues relating to air space and the presence of oxygen in the subject packaging to be determined since none of the reports were commissioned for that purpose.

Leave to amend - General principles 21 In all cases where leave is sought to amend a statement of claim, the Court is obliged to have regard to the nature of the amendment that is sought and the consequences of the amendment, if granted, in so far as the other parties are concerned, and the consequences of refusing leave in so far as the plaintiff is concerned. Whilst it is appropriate, having regard to the statutory objectives set out in 64(2) of the Civil Procedure Act, to allow all amendments where they are necessary to determine the real issue in dispute between the parties and whilst it is also appropriate, subject to s 65, to permit amendment by the addition of a fresh cause of action, otherwise statute barred, the statutory objectives must be read subject to any feature of the particular case which may operate to limit the general discretion. 22 In McGee v Yeomans [1977] 1 NSWLR 273 at 280, after holding that the equivalent of Supreme Court Rules displaced the settled rule of practice laid down in Weldon v Neal (1887) 19 QBD 394, Glass JA said this of the resulting discretion at that time provided for in the Rules: "The exercise of the discretion is unfettered by any rules of practice… The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action…"

This Court has applied this construction of the equivalent provisions in sections 64 and 65 of the Civil Procedure Act in a line of authority culminating most recently in Greater Lithgow City Council v Wolfenden [2007] NSWCA 180.

Should leave be granted to permit the plaintiff to extend its case so as to include an additional causal element against each of the three defendants 23 In this case, as I have already observed, each of the three defendants (who are variously and differently affected by the amendments that are sought) complain that they will suffer a real, and not simply a putative prejudice were I to allow the plaintiff leave to amend the pleadings by the addition of a new causal element in the way proposed. 24 It is also submitted by each of the defendants that the plaintiff's lack of diligence in seeking to amend the statement of claim in a more timely manner is a circumstance that aggravates the prejudice that they would suffer were the amendments to be allowed and, moreover, that the resultant delay in the plaintiff seeking leave is so egregious in the particular circumstances of this case that, when coupled with the demonstrated prejudice that would result from amendment, leave should be refused. 25 The impact of delay, and the prejudice that the defendants complain of, is said to be shown starkly on analysis of the plaintiff's cause of action as originally pleaded (and then amended), the expert evidence available to it at that time (and upon which it elected to rely in the attribution of liability to each of the three defendants) and the fact that since that time all that has changed is that the plaintiffs have terminated the services of the solicitors who were advising and acting on their behalf when the statement of claim was filed in October 2003.

The original pleadings 26 As against the first defendant, a manufacturer, marketer and promoter of the tetra brick packaging system, the plaintiff alleged a breach of a duty of care with consequential damages and a breach of s 52 of the Trade Practices Act on the basis that the first defendant's conduct in making representations as to the suitability of the system for the packaging of commercial wines was misleading and deceptive. To that general particular, further particulars were added which I am satisfied reflected the plaintiff's expert advice from Professor Wootton to the effect that the sterilisation process preliminary to the packaging had failed because it did not remove hydrogen peroxide, a chemical used in that process. The hydrogen peroxide is said to be a contaminant when used in a wine packaging process because of its impact on sulphur dioxide, a chemical essential to preserving the wine from the effects of oxidation. 27 The case in negligence in the first amended statement of claim was based on the first defendant's failure to warn that the packaging system was hazardous and other particulars of a like kind which, it was alleged, amounted to a breach of the duty of care that the first defendant owed the plaintiff. The plaintiff also claimed damages for breach of contract, again on the basis that there were express and implied terms and conditions to the effect that the packaging process supplied by the first defendant would be suitable for its stated purpose and would not cause deterioration of the plaintiff's wine product after packaging. 28 Calculated loss and damage is said to have resulted. As against the first defendant, the statutory cause of action under the Trade Practices Act and the common law action in tort and contract are pleaded in the alternative. 29 In so far as the second defendant is concerned, it was alleged that it also breached s 52 of the Trade Practices Act and was liable in contract and in negligence in that it is alleged that the second defendant represented that it was equipped to utilise the first defendant's packaging system, and that it would ensure that there was no residual hydrogen peroxide on the packaging it utilised in packaging the plaintiff's wines since it was known, or should have been known, that such a compound had a capacity to cause the wine to deteriorate by oxidation. It is said that the plaintiff entered into a contract with the second defendant on these terms and that it owed the plaintiff a duty of care in the circumstances and that this duty was breached. 30 In so far as the third defendant is concerned, the plaintiff asserts that it made precisely the same representations as those made by the second defendant and, in each case, they were made orally at the second defendant's premises at Taren Point and at the third defendant's premises at Edith Creek in Tasmania. No common law action in either tort or contract was alleged against the third defendant.

31 It is not likely to be in contest that the plaintiff retained the services of the second and third defendants to package its wine. Similarly it is not likely to be in contest that the first defendant represented that the packaging system was suitable for that purpose and that the second and third defendants represented that they were suitably skilled to utilise the system for that stated purpose. What is likely to be controversial is the evidence going to establish the causal link between the packaging system provided by the first defendant and/or the packaging process provided by the second and third defendants and the deterioration of the wine by oxidation. It is this evidence that will serve to either attribute liability to one or other of the defendants or to limit their liability as the case may be.

What caused the wine to deteriorate 32 As noted above, in its original pleading it was the plaintiff's case that the cause of the deterioration in the wine was the retention of hydrogen peroxide in the wine packaging, a chemical which was utilised in the sterilisation phase of the packaging process prior to the wine being introduced into the packages. The amendment the plaintiff seeks will have the effect of nominating the retention of oxygen, or dissolved oxygen, as a contaminant in the packaged wine as an alternative cause of the oxidation. 33 Having considered Professor Wootton's report, I am firmly of the view that it cannot be said that he overlooked the possibility of dissolved oxygen in the wine when packaged as a contributing cause of the wine oxidising, or that this was overlooked prior to the plaintiff commencing proceedings. There is no suggestion that this theory has only recently surfaced. To the contrary, Professor Wootton expressly considered retention of oxygen or dissolved oxygen in his report of December 2002 but excluded it as a major contributor leaving, in his considered view, hydrogen peroxide as the most likely cause of the oxidation. His reasoning was that since hydrogen peroxide was used in the tetra pack filling process to sterilise the packaging material, and since this is a powerful oxidant itself, it is the most likely cause of the oxidation. Having excluded dissolved or retained oxygen in the packaging process as a major contributor, Professor Wootton was satisfied that hydrogen peroxide was the only remaining probable cause of the loss of sulphur dioxide giving rise ultimately to the spoiling effects of oxidation. In one part of his report he described it as the only remaining cause of the sulphur dioxide loss. While it is true that dissolved oxygen was considered by Professor Wootton as a possible cause of the oxidising process, and while the language that the Professor used does not exclude oxygen being retained in the packaging process altogether, and moreover does not exclude it as contributing to the loss of free sulphur dioxide in the wine, he diminished its significance such as to elevate hydrogen peroxide to the single most likely cause of the contamination. It is no doubt for these reasons that the original statement of claim was pleaded so as to make no reference to the impact of the effects of oxygen at all. 34 At the hearing of the plaintiff's motion to amend the statement of claim, the plaintiff offered no explanation for now seeking to rely on oxygen as a contributing cause almost nine years after the relevant events, five years after the expert report from Professor Wootton was available to the plaintiff and four years after the plaintiff's retained stock of wine was destroyed, other than that the plaintiff has retained new solicitors. There is no further or amended report from the plaintiff's expert and nothing to suggest that Professor Wootton has changed or moderated his views. There is little doubt that the proposed further amended statement of claim is a more comprehensive and eloquent pleading which may well be a direct consequence of the plaintiff retaining a new firm of solicitors in April 2006. It is also self evident that the plaintiff's current solicitors have carefully reviewed the pleadings and have proffered advice to the effect that the issue of causation should be expanded to maximise the plaintiff's prospects of recovery. That, however, is not to the point. While the plaintiff is entitled to seek leave to amend its pleading with a view to ensuring that its rights to recover damages are not jeopardised by inattention on the part of those who advised at an earlier time, or by its own a failure to investigate or interrogate the facts that might establish liability, the Court's extensive power to grant that leave has to take into account the rights of the defendants to fairly present their case in seeking to resist liability. If the defendants' rights are irremediably prejudiced either by the nature of the amendment that is sought and/or its timing after the commencement of proceedings, then the plaintiff is obliged to conduct its case without amendment. In this case the prejudice to the defendants is palpable. In my view, they cannot effectively meet the case that the plaintiff now seeks to make where there are so few packages of wine available for testing, and where testing of the alternate causal theory is dependant on there being sample packages available. 35 I am satisfied that the defendants would suffer prejudice were leave granted and accordingly, subject only to the amendments that are reflected in the schedule to this judgment, leave to amend so as to add the alternate causal element is refused.

Should leave be granted to permit the plaintiff to pursue a claim in contract, in negligence and/or pursuant to s 74 of the Trade Practices Act against the third defendant 36 The only cause of action currently pursued as against the third defendant is pursuant to s 51A and s 52 of the Trade Practices Act. This action is based upon representations said to have been made by the third defendant as to the suitability of the first defendant's system of packaging the plaintiff's wine. Each of the new causes of action in contract, tort and under s 74 of the Trade Practices Act are statute barred. Accordingly, the plaintiff is obliged to demonstrate that the provisions of s 65(2)(c) of the Civil Procedure Act are satisfied. That section provides that: "…to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process." 37 In the joint judgment of their Honours Wilcox, Tamberlin and Emmett JJ, in Rodgers v Federal Commissioner of Taxation (1998) 158 ALR 220, it was observed that in Burford v Clifford [1932] 2 Ch 122 at 138, Lord Hanworth MR said: "…the words "substantially the same" which appear in both clauses relate to the facts which have to be examined for the purposes of ascertaining what is the relief or remedy to which the parties are entitled. "Substantially" must have been put in order to embrace within the rule something which was not exactly a repetition of the relief or remedy asked for …. where the same facts have to be conned over in order to ascertain the liability and to give some relief to one or other of the parties, in such a case the rule now provides that it is unnecessary to have separate actions and some separate proceedings, but that a third party notice may be served."

Their Honours then referred to Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 at 674 where Cross J considered Burford's case and explained it as applying to cases where substantially the same facts will have to be gone over to ascertain liabilities arising under different claims. While it is true, as was observed by White J in New Cap Reinsurance Corporation v Reaseguros Alianza SA (2004) 186 FLR 175 at par 91, that the meaning of "substantially the same facts" in Rodgers was in the context of the Federal Court Rules and where the question was whether there was a substantial similarity in the issue and the relief that was claimed by the Commissioner and not the facts upon which that relief was based, he nevertheless regarded the authority of some assistance. I also approach the case in that way. 38 It is not sufficient for the plaintiff merely to point to the fact that the fresh causes of action relate to the same loss, notwithstanding the fact that loss or damage is a necessary element to be established in the substantive proceedings before a right to relief is made out. In order to determine whether the new causes of action arise from the same, or substantially the same facts as those giving rise to the existing cause of action, some comparison between the original proceeding and the proposed further amended statement of claim needs to be made. 39 In the first amended statement of claim, and as a matter of strict pleading, the case made against the third defendant is contained solely within paragraph 21 wherein it is alleged that in October 1998 the third defendant made a series of oral representations to the plaintiff's representative at the premises of the third defendant at Edith Creek in Tasmania. I also note that the third defendant has filed a defence answering that claim. The representations are specific as to time, place and those who were involved in both making the representations and receiving them. It is the making of these representations that is said to constitute conduct in trade or commerce within the meaning of s 52 of the Trade Practices Act. It is further alleged that the representations were misleading or deceptive or, alternatively, likely to mislead or deceive within that same provision. Importantly, it is alleged that the representations were made prior to the third defendant undertaking the packaging of the plaintiff's wines and its utilisation of the first defendant's system for that purpose. That much is clear because of the way in which the representations are pleaded, namely prospectively. 40 While it is true that no claim was made for the damage said to have resulted from any contract providing for the utilisation of the packaging system, or from the process of packaging by the third defendant, no claim for damages from any breach of a duty of care in the employment of those processes, it is also clear from the pleadings that the plaintiff did contend in paragraphs 15-17 that there was an agreement with the third defendant whereby the packaging system of the first defendant was in fact used, and that it was this system that led to the deterioration of the wine, even if that contention was for the purpose of attributing liability to the first defendant. 41 The case in contract that the plaintiff now wishes to pursue involves what are described in the pleadings as multiple and separate agreements with the third defendant pursuant to which the first defendant's packaging system was in fact utilised in the packaging of the plaintiff's wines. It is said that pursuant to these agreements the third defendant packaged the plaintiff's wines in 330ml packages at its premises and that such work was carried out between November and December 1998, and again in or about December 1999. Particulars of what are said to be the packaging runs are provided. It is then contended that there was a breach of an implied term of the agreement to the effect that the services supplied would be rendered with due care and skill and would be services reasonably fit for their purpose, inclusive of them being of a nature and quality appropriate to achieve the stated purpose. It is on the basis of the alleged agreements that the action under s 74 of the Trade Practices Act is pleaded in that it is said the plaintiff was a consumer for the purpose of s 4(b) of the Act. 42 The action in negligence, again pleaded for the first time in the further amended statement of claim, alleges that the third defendant owed the plaintiff a duty of care by offering services on a commercial basis to package the plaintiff's wines and that they would do so with due care and skill. It is said that the defendant breached its duty of care and its agreement with the plaintiff by either allowing hydrogen peroxide to remain on the packaging or oxygen to enter the packaging during that process. It is also said that the third defendant failed to have effective procedures to prevent hydrogen peroxide remaining on (or to prevent oxygen entering) the packaging material during packaging. It is further said that the third defendant did not completely fill the packaging so as to leave no available air space and that oxygen was a cause of the contamination. It is further alleged that the fact that the wine was itself tainted evidences negligence. 43 The plaintiff submits that the new causes of action arise from substantially the same facts as grounding the original action under s 52 of the Trade Practices Act, seemingly because the third defendant has at all times been aware that it was the plaintiff's case that the representations which were made were in fact acted upon, in the sense that the packaging system was in fact utilised by the third defendant to package the plaintiff's wines, and that this happened pursuant to an agreement between the plaintiff and the third defendant (see paragraphs 24B and 25 of the first amended statement of claim). The plaintiff says that in these circumstances, the case will involve an enquiry not simply into whether the representations were made but, because particulars of their misleading or deceptive nature have been provided, that there will also be an enquiry both into whether it was agreed that the work would be undertaken and into the system of work ultimately employed. In this way it is said that the third defendant could have been under no misapprehension that the terms upon which that work was undertaken, and the processes employed, would be the subject of forensic enquiry and that for those reasons there is a sufficient similarity in the evidentiary facts or series of events relating to the existing claim under the Trade Practices Act with the claim that is now sought to be brought in contract and negligence (see New Cap Reinsurance Corporation v Reaseguros Alianza SA (2004) 186 FLR 175 Per White J at par 93). In my view there is force in the plaintiff's submission in that regard. 44 The third defendant complains that since the case was not pleaded to allege a breach of any contract or negligence in the way in which the wine was packaged it should not, nine years after the event, be compelled to commence an investigation and review of what was actually done in the packaging process. The defendant has not submitted that with the effluxion of time the systems or processes that were in place in 1998 are not susceptible to review and investigation. Were this the case, the obvious prejudice that would result would weigh against the grant of leave. 45 Although I am sympathetic to the defendant's position, I regard the question as to whether the discretion under s 65(2)(c) should be exercised in favour of a plaintiff as essentially one of degree and impression (see New Cap Reinsurance Corporation v Reaseguros Alianza SA). In all the circumstances I am of the view that leave should be granted to allow the addition of the proposed action in contract and in negligence and under the Trade Practices Act. I am satisfied, after reviewing the pleadings, that substantially the same factual terrain will need to be traversed to ascertain the third defendant's liability under the Trade Practices Act, as it was pleaded and particularised in the first amended statement of claim, as would be entailed in determining liability for an action in contract or in negligence or under s 74 of the Trade Practices Act.

46 The orders I make are as follows: 1. Leave is granted to permit the plaintiff to further amend the statement of claim strictly in accordance with the Schedule annexed to this judgment. 2. By reason of the delay in seeking leave to amend the plaintiff is to pay the defendants' costs of the motion.

The schedule is drawn by reference to the paragraph numbers in the further amended statement of claim filed in court on 24 August 2007 in the course of the proceedings by way of motion.

Paragraph numbers Amendments by leave 6(f) Not allowed 6(h) Not allowed 6(i) Not allowed 8(a) Allowed 11(i) Allowed 11(ii) Allowed 11 Amendments to the particulars provided in respect of par 11 allowed 12(i) Allowed 12(ii) Allowed 13 Allowed 14 Allowed 15 Allowed 16 Allowed 17 Allowed 18 Allowed 19 Allowed 20 Allowed 21 Allowed 22 Allowed 23 Allowed 24 Allowed 25 Allowed 26 Allowed 27 Allowed 28 Allowed 29 Allowed 30 Allowed 31 Allowed 32 Allowed 33 Allowed 34 Allowed 35 Allowed 36(a) Allowed 36(b) Allowed 36(c) Not allowed 36(d) Not allowed 36(e) Allowed 36(f) Not allowed 36(g) Not allowed 36(h) Allowed 36(i) Allowed 36(j) Allowed 36(k) Allowed 37 Allowed 38 Allowed 39 Allowed 40 Allowed 40(a) Allowed 40(b) Not allowed 41 Allowed 42 Allowed 43 Allowed 44 Allowed 45(a) Allowed 45(b) Allowed 45(c) Allowed 45(d) Allowed 45(e) Allowed 45(f) Not allowed 47 Allowed 48 Allowed 49 Allowed 50 Allowed 51 Allowed 52 Allowed 53 Allowed 54 Allowed 55 Allowed 56(a) Allowed 56(b) Allowed 56(c) Not allowed 56(d) Not allowed 56(e) Allowed 56(f) Allowed 57(a) Allowed subject to the paragraph reading: "the packaging of the wine was not conducted with due care and skill as it allowed hydrogen peroxide to remain on the packaging" 57(b) Allowed subject to the paragraph reading: "the second and third defendants failed to have any effective procedures to prevent hydrogen peroxide remaining on the packaging" 57(c) Not allowed 57(d) Not allowed 58 Allowed 59 Allowed

14/09/2007 - Plaintiff's name changed in heading - Paragraph(s) Not applicable 05/02/2008 - Leave granted to vary Schedule of judgment - Paragraph(s) 36, 44 and 45 of Schedule

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