SA GOVT FINANCING AUTHORITY v BANK OF NZ & ORS No. SCGRG-99-1428 [2000] SASC 264

1 B T Financial Group Ltd ("BTAL") and B T Australia (HK) Ltd ("BTAHK"), the second and third defendants in this action have each appealed against the decisions of a Master made on 17 February 2000 and 16 March 2000 refusing to strike out the statement of claim in its entirety and refusing to separately strike out discrete paragraphs.

2 The Master made an order for particulars and they have been included in the Further Amended Statement of Claim ("Statement of Claim"). The appellants accept the adequacy of the particulars provided except for those relating to paragraphs 31 and 61.

3 The Notice of Appeal (as amended) seeks orders that the entire Statement of Claim be struck out, and in the alternative, that paragraphs 31, 55, 57, 58, 60, 61, 62 and 63 be struck out. The Notice of Appeal further complains, in the alternative, of the failure of the Master to order particulars in respect of certain paragraphs, those remaining in issue being paragraphs 31 and 61.

4 The Notice of Appeal has been filed late but the plaintiff does not oppose an extension of time.

5 The Statement of Claim pleads events occurring in 1985. The South Australian Government Financing Authority ('SAFA') sought to raise funds by issuing bonds. It engaged BTAL and BTAHK to advise and prepare documents in that regard. Following extensive negotiations, an agreement was reached and SAFA executed documents concerning the bond issue conditional upon Treasury approval and government ratification.

6 BTAL and BTAHK, pending ratification and approval, discussed with BNZ its purchase of the bonds. BNZ sought a variation to the terms of the bonds. It wished SAFA to agree to defer its right to redeem until April 2000. The variation was the subject of an agreement and a common intention alleged by paragraph 47 to be as follows:

"The side letter would provide that in consideration of the waiver by SAFA of its right to redeem the Bonds pursuant to Condition 5 (C) of the Terms and Conditions thereof of up to but not including 25 April 2000, SAFA's funding costs on the deferral of the Optional Redemption Date (being the Optional Payment Date referred to in paragraph 23.2.4 hereof) would be calculated for each such deferral by reference to the Commonwealth of Australia Treasury Bond Yield (Market Determined Rate) for (or commensurate with) the period of deferral less 0.2 percent per annum margin whether such redemption occurred at the option of BNZ as holder or at the option of SAFA as issuer."

7 A side letter was executed by SAFA, but that side letter did not record the alleged common intention.

8 The Statement of Claim pleads that BTAL and BTAHK owed duties of care to SAFA in contract and tort. It is further pleaded that the BTAL and BTAHK breached those duties by failing to give proper advice or prepare appropriate documentation in regard to the side letter. The claims of the plaintiff include a claim for rectification of the side letter so that it accords with the agreement and the common intention.

9 The appellants' primary attack was not that the plaintiff's claim was untenable, but that there was such a departure from the rules and practice of pleading, that the Statement of Claim should be struck out in its entirety and the plaintiff given the opportunity to replead. However, it was submitted that in a number of respects the pleading was simply untenable.

10 This submission prompts an enquiry as to the purpose and function of pleadings. As was said by King CJ in Williams v Australian Telecommunications Commission [1]:-

"The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give to the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise. ... that general principle which governs the application of all procedural rules, namely that 'rules and the forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice'."

11 Against the background of these guiding principles, it is important to identify the relevant rules of the Court. They are as follows:-

'46.04 (1) A pleading shall: Brief (a) be as brief as the nature of the case permits; Contain summary of material facts and not of evidence (b) contain a statement in a summary form of the material facts on which the party relies, but not the evidence by which the facts are to be proved and when necessary be divided into paragraphs, numbered consecutively, with each matter, so far as convenient, put in a separate paragraph; State relief claimed (c) state the specific relief claimed; .... Contain sufficient particulars (f) subject to Rule 46.15 contain sufficient particulars of the claim, defence or other matter pleaded.... No Technical objections (2) (a) No technical objection shall be raised to any pleading on the ground of alleged want of form. Separate causes of action to be distinctly stated (3) (a) Where a plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct facts they shall be stated, so far as may be, separately and distinctly. (4) (a) Relief not to be confined to that claimed At the trial, subject to subrule (b) hereof, the court: (i) shall grant all such relief on any cause of action to which the parties might be entitled on the evidence whether or not the relief granted is expressly requested in the pleadings; (ii) will apply the rules as to admissibility of evidence, insofar as they require a consideration of the issues raised on the pleadings, without undue technicality and with regard to the substantial merits of the case, and, while having regard to the issues raised on the pleadings, will not refuse to admit an item of evidence solely on the ground that it relates to facts or matters not expressly pleaded; (b) nothing in subrule (a) hereof allows the court to grant relief or admit evidence if to do so would infringe the principles of caseflow management as set out in Rule 2 or if by reason of surprise, the course of the trial or for any other reason, it would otherwise be unfair to do so."

12 Lander J further considered the application of the Rules in Arthur Young & Anor v Tieco International & Ors [2] when he said:-

" Although the purpose of pleadings is clear, the pleadings themselves must not become a burden. Whilst recognizing the due importance of pleadings and their role in the litigation process, they are not to be understood to be any more than statements of the case of the party; statements made with sufficient particularity to identify that case. The rules of procedure do not require a party to include particulars of any more than the case to be made. The rules require the pleader to be as brief as the nature of the case permits and further require that the material facts ought to be pleaded but specifically preclude the pleading of the evidence upon which those facts are to be proved. It is therefore necessary, as only the material facts are to be pleaded, that some judgment has to be made in respect of any particular pleading as to whether or not the facts which are said to be omitted are material facts for the purpose of the party against whom the pleading is directed understanding the case, which is identified against that party. It follows that having regard to the injunction that the pleadings be as brief as possible and that only material facts be pleaded, the law recognizes that some facts will not be pleaded because those facts do not identify the case that is raised against the party against whom the allegation is made, or further do not identify any issues or sub-issues to which that party ought to apply that party's mind. The rules do require that the pleading will contain particulars of the claim, and particulars under the Rules must be understood to be part of the pleadings. However, the rules make it plain that what is required is that there be sufficient particulars of the claim. It follows therefore, as well, that the rules contemplate that not all particulars which may be identified by a party need to be pleaded. In essence therefore it seems to me that a proper pleading will contain the material but not all facts and will contain sufficient particulars. Whether the material facts and whether sufficient particulars have been pleaded must depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case. None of those matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation. When the Court considers a pleading it will not consider the pleading with the same degree of scrutiny which the courts are required to give to an Act of Parliament. With the complexities of modern litigation, a pleader can usually point to some deficiency in the opponent's pleadings. One can usually, if one approaches the matter with a critical eye, identify some failing in a pleading. But that is not the approach that in this age ought to be adopted. A court would not sit down in the manner of a nineteenth century pleader seeking to find an error capable of sending a party away to re-plead his claim or defence. Such a technical approach is inconsistent with modern litigation and inconsistent with the court's function which is to try to arrive at a just result. A successful result, if arrived at, after too great an expense may not be considered by even the successful party to be a just result. A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise."

13 I also draw attention to what Mullighan J said in The Duke Group Ltd (In Liquidation) v Pilmer & Ors (No. 2) [3]:-

"Strict interpretation of the Rules could lead to absurd consequences, particularly if each and every fact, the combined force of which could deny or reduce an aspect of the plaintiff's claim were required to be pleaded, for example, that the plaintiff engaged in various physical activities on many occasions where the issue is loss of earning capacity. The Rules must be interpreted in a sensible manner and applied in such a way as to promote the just resolution of disputes in the circumstances of each case."

14 In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords[4] the High Court made comment about the test which is to be applied in regard to a strike out application. Gummow J said at 293:-

"The strike-out application was made under the summary procedure provided in r 46.18 of the Supreme Court Rules 1987 (SA). It was accepted that this procedure should be reserved for a plain case, in accordance with the principles identified in General Steel Industries Inc v Commissioner for Railways (NSW)."

"The power to strike out pleadings under r 46.18 cannot be exercised unless 'the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' In General Steel, Barwick CJ warned that the power to strike out a pleading must be sparingly exercised; the mere fact that the plaintiff's prospects of success are slim is not enough to strike out a pleading."

15 In support of the submission that the entire Statement of Claim should be struck out, reference was made to Rule 46.04(3)(a). It was submitted that the Statement of Claim "rolled up" material facts in regard to different causes of action, without separately pleading the facts relevant to each cause.

16 I reject this submission and decline to order that the Statement of Claim be struck out. The Statement of Claim raises separate causes of action. There is a common body of material fact relevant to each, as well as discrete facts relevant to the separate causes of action. Insofar as there are separate and distinct facts they have been separately pleaded. Each cause of action, as pleaded identifies the material facts relied upon to support that cause. I see no embarrassment arising by the mode of pleading in this regard. In my view r46.04(3)(a) has been complied with adequately.

17 In my opinion, the plaintiff's case cannot be said to be so clearly untenable that it cannot possibly succeed. I reject the submission that the entire statement of claim should be struck out.

18 I now turn to the alternative submission that discrete paragraphs of the Statement of Claim should be struck out. Counsel first criticised paragraph 31. That paragraph pleads an agreement as to the terms of the side letter. Paragraph 31.5 contains particulars of agency as ordered by the Master. The particulars assert that the agency relationship arose from Mr Bell's employment with BTAL, as an Associate Director of its Corporate Finance Division. It is pleaded that the terms of his employment gave him express authority to negotiate the agreement referred to in paragraph 31. Alternatively, ratification by letter is pleaded and the effect of the letter specified. In my view, those particulars sufficiently comply with the order.

19 Paragraph 31 pleads material facts relevant to causes of action addressed later in the Pleading. In my view, this paragraph gives fair notice of the agreement concerning the side letter. The effect of the conversations has been pleaded and the relationship between the persons named.

"(1) The effect of any document or conversation referred to in a pleading shall, if material, be briefly stated, but the precise words of the document or conversation shall not be stated except insofar as those words are themselves material. (2) Implication of contract or relation to be stated generally**.** If a contract or any relation between any persons is sought to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact and to refer generally to such letters conversations or circumstances without setting out details thereof. If the person so pleading relies in the alternative upon more contracts or relations than one to be implied from such circumstances he shall state them in the alternative."

20 In my view, paragraph 31 conforms adequately with the rules as to pleadings and with R 46.05. I consider this paragraph to be adequately particularised.

21 Paragraph 55 alleges the existence of a contract and asserts that it arises from conversations referred to in paragraph 7. I consider paragraph 7 adequately identifies the conversations, the parties to them, and the effect of the conversations as required by the Rules. In so far as implied terms are pleaded there has been an identification of the circumstances sufficient for the defendants to have fair notice of the case they have to meet. The facts pleaded to paragraph 55.2.2 are quite specific.

22 Paragraph 57 is a plea of an express agreement, said to arise from the facts in paragraphs 18 and 19. Those paragraphs assert an offer and acceptance by letter. The documents are identified and as required, their effect briefly stated. An implied term is pleaded in paragraph 57.2 and the circumstances are identified in paragraph 57.2.2. They are the same circumstances as referred to in paragraph 55.2.2 and again, I consider that they are adequate.

23 Paragraph 58 asserts an implied contract between SAFA, BTAL and BTAHK. The pleader has identified the pertinent circumstances by express reference to earlier paragraphs in the Statement of Claim. Rule 46.05 has, in my view, been complied with. Counsel for the appellants contended that the pleader was obliged to specify precisely how it is alleged that an implied contract arose from the identified circumstances. He submitted that the pleading should disclose the reasoning by which the plaintiff said a contract was to be implied. This is not the role of a pleading. In my opinion, to require that this be done is to impose an unnecessary burden on the plaintiff. The defendants have adequate notice of the case they have to meet.

24 Paragraph 62 of the Statement of Claim pleads the duty of care in tort. It identifies the material facts that are said to give rise to the duty, by identifying earlier pleas, and by alleging further facts. In my view, sufficient has been pleaded to enable the defendants to understand the case against them. As the duty of care is said to arise out of the relationship between the parties, the history of that relationship is a material fact. It is alleged that a duty of care arose between advisers, merchant and investment bankers, and their client SAFA. The matters pleaded relate to the circumstances of the relationship between the parties; undertakings given and expectations held, the provision of advice and documents; intention for there to be, and knowledge of reliance; forseeability and of neighbourhood and proximity. Paragraphs 62.2.2 to 62.2.6 plead factual matters relevant to the formulation of a duty of care. These are proper and sufficient pleas, having regard to the decision of the High Court of Australia in Perre v Apand Pty Ltd [5]. Paragraph 63 asserts that the duty of care was breached. In my view sufficient relevant facts have been pleaded.

25 In regard to relief, the primary claim of the plaintiff is for rectification. If rectification is ordered, then the plaintiff will be entitled to monetary relief against BNZ. In those circumstances, the claims for breach of duty against BTAL and BTAHK would not lead to any substantial loss or damage. If rectification is refused, then the plaintiff would pursue its claim for loss and damage sustained by reason of the pleaded breaches of duty.

26 As pleaded, the bonds were issued and held by BNZ. It is common ground that on redemption, SAFA has had to pay the sum of $60,617,615.48. SAFA claims in Paragraph 60 that the loss it has sustained is the difference between the sum paid and what it would have paid to redeem, had the side letter been as agreed and accorded with the common intention. This is an amount of $46,374,641.63.

27 Counsel for the defendants submitted that there is an obligation to plead as a material fact what BNZ would have done had the side letter been in the terms SAFA asserts. This is said to be a matter critical to establishing any loss. I do not agree. The case put against the defendants is that in reliance on the advice of and documents provided by BTAL and BTAHK, it issued bonds to BNZ. The advice and documentation was deficient in circumstances that amounted to a breach of duty. As a result it had to redeem at a sum of $14,242,973.85 more than it should have and that sum is the measure of its loss. I do not consider such a claim to be plainly untenable. It may well be possible to formulate the claim differently, or in other alternative ways, but the plaintiff has chosen to plead on a particular basis. That in my view is sufficient.

28 As has been already observed, the plaintiff has pleaded causes of action in contract and tort and has sought rectification against the defendant BNZ. It asserts that all claims have been brought within time. However it has sought, if necessary, an extension of time in which to bring the proceedings pursuant to section 48 of the Limitation of Actions Act 1936 (S.A). ("the Act"). Relevantly section 48 of the Act provides:-

"(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for-

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied -

(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff;

and that in all the circumstances of the case it is just to grant the extension of time."

29 Paragraph 61 of the Statement of Claim has been the subject of a proposed amendment. The following extract includes parts of the proposed amendment.[6]

"61. Insofar as it may be alleged that the limitation period relating to the breaches of contract by BTAL and BTAHK alleged in paragraph 59 hereof has expired, SAFA claims an extension of time pursuant to Section 48 of the Limitation of Actions Act, 1936 (SA).

61.1 Facts material to SAFA's case were not ascertained by it until a time after the expiration of the period of limitation but less than twelve months before the commencement of these proceedings, namely on 2 and 3 December 1998.

61.2 The material facts so ascertained were the terms of a statement given by Mr Bell to a solicitor acting for SAFA on 2 and 3 December 1998 as to:

61.2.3 the circumstances of the agreement alleged in paragraph 31 hereof;

6.1.2 the terms of the agreement alleged in paragraph 31 hereof;

and in all the circumstances of the case it is just that the extension be allowed.

30 For reasons that I set out hereunder, I consider that the proposed plea is sustainable, although further particulars should be provided. In these circumstances, I will allow the proposed amendment to paragraph 61. My reasons address the proposed paragraph 61.

31 I was provided with a copy of Mr Bell's statement as a document referred to in the pleading and forming part of the pleading.

32 Paragraph 61, together with Mr Bell's statement, left me with the clear impression that the plaintiff was asserting that a number of facts material to the plaintiff's case were not ascertained by him within the 12 month period prior to the issue of proceedings ("the material facts").

33 In the course of submissions, this was confirmed by counsel for the plaintiff. He indicated that there were three categories of material facts. First, material facts of which the plaintiff was totally unaware. He instanced matters between BT and BNZ. Second, material facts where the plaintiff had inferred that certain events had occurred but it was now aware, from Mr Bell's statement, that the events had occurred. The third matter identified was Mr Bell's availability as a witness for the plaintiff and that he could speak to matters as known to the defendants. Counsel indicated that the plaintiff was prepared to provide further particulars specifying the material facts within each of the categories mentioned above.

34 During the course of this hearing the plaintiff indicated that it would provide particulars and it did so in terms of proposed paragraphs 61.2A and 61.3. These paragraphs, as referred to above, set out the material terms of the statement referred in paragraph 61.2.

35 The defendants denied that Mr Bell's statement or anything within it were new material facts. However, the defendants accepted that for the purposes of their application, the truth of the allegations are to be assumed and evidence to contradict them is inadmissible in a strike out application.

36 In Lovett v Le Gall[7] the Court considered the expression "facts material to the plaintiff's case". Although the Court dealt with a repealed version of the Limitation of Actions Act, it was in materially similar terms to the section now under consideration. Bray CJ said at (482):

"It is hard to see what reason there could be for that, in view of the ample power given to the court to protect defendants from prejudice under the discretion. Another very common case would be the late discovery of a witness previously unknown or untraceable. Such a witness might be able to depose to something in the absence of evidence of which counsel might well have advised that the action was hopeless or unduly hazardous. There are all sorts of reasons unconnected with the bare necessary pleading allegations which might reasonably deter an injured man from taking action in time, and I should have thought that subsequent discoveries tending to remove or weaken the force of those reasons would have been regarded by Parliament as very good ground for removing the time barrier."

"Similarly, the word 'case' has a much wider purview than the expression 'cause of action'; it comprehends, in my opinion, all evidence, law and argument to be relied on in court by the party concerned."

37 The matter was considered by the High Court in Sola Optical Australia Pty Ltd v Mills[8]. Lovett v Le Gall was approved. The High Court said at (635-636):

"Section 48(1) confers, subject to the section, a general and unfettered power upon a court to extend the time prescribed by any Act (including the Limitation of Actions Act 1936 itself) or piece of subordinate legislation for instituting an action, or for doing any act in an action or with a view to instituting an action. The wide general power so conferred is limited by sub-s. (3) That sub-section denies to a court the power to extend the time within which an action may be instituted unless it is satisfied of the existence of the circumstances set out in either par. (i) or (ii). The contrast between the matters described in par. (i) and the 1963 Act is significant. The former is not limited to material facts which relate to a cause of action and satisfy the exhaustive enumeration in s.7 of the 1963 Act. The subject-matter of par. (i) is facts which are material to the plaintiff's case, with no attempt to provide any definition of the categories to which such facts must conform. The reference to the plaintiff's case supplies a broader canvas than the reference in the 1963 Act to the cause of action. Unlike the 1963 Act, there is no requirement that the material facts be of a decisive character, no reference to constructive knowledge, no obligation to have used due diligence in seeking to discover at an earlier time the facts in question and no mention of seeking appropriate advice. The effect of the paragraph was described by Bray C.J. in Napolitano in words which we are glad to adopt:

'A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases may not be of great significance, has left all the rest to the discretion of the court.' "

38 At (638) the High Court addressed the particular circumstances in the following terms:

"Finally, it was contended for the appellant that the Full Court erred in holding that the discovery by the respondent of Mr. Morgan's second report was, in the circumstances, the ascertainment of a fact material to her case. It was submitted that the dissenting view of Johnston J. was correct; the Court should have held that the fact found to have been ascertained by the respondent on 20 March 1985 was not a fact material to her case for the reason that Mr. Morgan in his second report was only putting a percentage on the disabilities which she had described and demonstrated to him and of which she must necessarily have been aware at the time of his second examination. But the second report was doing more than that. It was expressing a specialist medical opinion as to the effect of the disabilities upon the functional capacity of the respondent's arm. The respondent certainly had a knowledge of the physical disabilities that she suffered but it was material to her case to learn that a medical assessment of the effect of those disabilities upon her capacity to function was expressed in terms of 80 per cent loss of function. Such a fact was material to the issue of damages. Whilst the cogency of the evidence was undoubtedly affected by the fact that the assessment was made in the light of an examination carried out in February 1983 and that it mentioned the possibility of some further improvement, we do not think that the passage of time destroyed its materiality completely. It remained a significant benchmark pointing to a very substantial disability that was still present in 1983 several months after surgery. In any event, the fact of the existence and contents of Mr Morgan's report was also capable of being material to the respondent's case in the sense that the report represented available evidence that could be called in support of her case."

39 It can be seen that the High Court considered the expression of a specialist medical opinion as being a fact material to the issue of damages. Additionally, the High Court was of the view that the existence and contents of the medical report were capable of being material to the respondent's case in the sense that the report represented available evidence that could be called in support of her case.

40 In Pomeroy v Thwaites Witham Pty Ltd & Anor[9] this Court further considered the issue. Martin J, speaking for the Court, described the relevant principles as being settled by the High Court in Sola Optical. His Honour said at [21]:

"In my opinion, if his Honour regarded the appellant's knowledge of the distinction between replacement cost and market value as knowledge which prevented the valuation by Mr Kearns from being a fact material to the appellant's case, his Honour was in error. The knowledge of the distinction was knowledge of the legal position. It was not knowledge of the market value of the goods. Although the appellant had a knowledge that the goods possessed a market value, prior to the valuation by Mr Kearns she had not gained any information as to the amount of that market value. The market value of the goods was a fact material to the issue of damages. In addition, the existence and contents of the valuation was material to the appellant's case 'in the sense that the [valuation] represented available evidence that could be called in support of her case'".

41 The Court considered the existence of the valuation report to be a fact material to the plaintiff's case in the sense that the valuation represented available evidence that could be called in support of the plaintiff's case.

42 It is alleged that the existence and contents of Mr Bell's witness statement were material to the appellant's case in the sense that the witness statement represented available evidence that could be called in support of the plaintiff's case. In these circumstances, accepting the accuracy of the plaintiff's assertions, the test enunciated by Sola Optical has been satisfied.

43 Counsel for the defendant submitted that the High Court had not intended to treat a witness statement dealing with facts already known to a plaintiff as a new material fact. I reject this submission. In my opinion, the High Court was treating the fact of the availability of evidence as being a material fact. Such a view accords with the remarks of Bray CJ and Wells J in Lovett v Le Gall and accords with the application of Sola Optical in Wright and Pomeroy.

"In all the circumstances of the case it is just that the extension be allowed."

45 The plaintiff accepted that the ultimate onus of making out a case for an extension of time lay with the plaintiff but argued that the defendant bore the evidentiary onus to establish any special matters of prejudice. The plaintiff accepted that in making out its case for an extension it would need to establish there was no undue prejudice. In this regard, the plaintiff indicated that it was prepared to provide full particulars to support the plea that, "it is just that an extension be allowed."

46 In my view, it cannot be said that the plaintiff's claim for extension of time is wholly untenable. However I do consider that further particulars of Paragraph 61 should be provided.

1. that there be a grant of extension of time for the filing of the notice of appeal against the order of Judge Kelly of 17 February 2000;

2. that the plaintiff have leave to amend paragraph 61 in terms of their notice by letter dated 12 May 2000 being Exhibit NDB 3-1 to the affidavit of Nicholas David Bampton sworn the 22nd day of June 2000.

3. that the application to strike out the Statement of Claim be dismissed;

4. that the alternative application to strike out Paragraphs 31, 55, 57, 58, 60, 61, 62 and 63 of the Statement of Claim be dismissed.;

5. that within 28 days the plaintiff do provide further particulars of Paragraph 61 of the amended Statement of Claim specifying each and every fact material to the plaintiff's case said to arise from Mr Bell's statement or any matter referred to in that statement;

6. that the plaintiff do provide particulars of its plea in Paragraph 61 that, "In all the circumstances of the case it is just that the extension be allowed.";

1 (1988-90) 52 SASR 215 at 216

2 (1995) 182 LSJS 367 at 369-370

4 (1996-97) 188 CLR 241

5 [1999] HCA 36; (1999) 73 ALJR 1190

6 Notice of this proposed amendment was given during the course of the hearing of this Appeal. The full test of the amendment is not set out.

7 (1975) 10 SASR 479

8 [1987] HCA 57; (1987) 163 CLR 628

9 Judgment No. [2000] SASC 44. See also Wright v Donatelli (1995-96) 65 ASR 307 to the same effect.

(1988-90) 52 SASR 215 at 216

[2] (1995) 182 LSJS 367 at 369-370

[3] Judgment No S4905 20 December 1994 Mullighan J

[4] (1996-97) 188 CLR 241

[5] [1999] HCA 36; (1999) 73 ALJR 1190

[6] Notice of this proposed amendment was given during the course of the hearing of this Appeal. The full test of the amendment is not set out.

[7] (1975) 10 SASR 479

[8] [1987] HCA 57; (1987) 163 CLR 628

[9] Judgment No. [2000] SASC 44. See also Wright v Donatelli [1995] SASC 5291; (1995-96) 65 SASR 307 to the same effect.