The absence of error
31 Notwithstanding the care and detail of the reasoning process set forth by her Honour, Senior Counsel for Samsung seeks to bring the application for leave to appeal within the constraints set forth in House v R by reliance upon the following errors said to have been committed, set out in their written submissions as follows (without alteration):
(a) not understanding or addressing the nature of the evidence and failing to consider its probative value and central relevance to key issues in the case;
(b) confining the analysis of the issues to those to which Apple now seeks to confine its case, and not taking into account the issues raised by Samsung's pleaded case;
(c) failing to consider the serious prejudice and substantial injustice to Samsung if the evidence is excluded;
(d) ignoring Samsung's reasons for delay in serving the evidence, and elevating a perceived absence of such reasons into an overarching test for admission;
(e) failing to consider Samsung's evidence and submissions as to the absence of any real prejudice to Apple if the evidence were admitted;
(f) confining consideration to matters pointing against the grant of leave and failing to take into account matters in favour of leave, and thus failing to carry out the required balancing exercise; and
(g) confusing the application for leave with a foreshadowed application to amend the pleadings, and taking this irrelevant consideration into account.
Each of these arguments should be briefly addressed - albeit not necessarily in the above order.
32 In concluding that leave to rely upon the two further witness statements should be refused, her Honour committed no error of principle of the kinds advanced on behalf of Samsung. The criticisms expressed in both the proposed grounds of appeal and the written submissions missed their target. The reasons for so concluding may be expressed as follows.
33 First, the gravamen of the proposed evidence was to change and expand the nature of the case sought to be made by Samsung in respect to both the manner in which the negotiation as to licence terms had been pursued and the claim as to any abuse of market power.
34 It is true, as the primary judge recognised, that Apple relies in its case upon an alleged failure by Samsung to offer it a licence of the relevant technology upon fair and reasonable terms and that Apple's pleading refers to continuing conduct on the part of Samsung ([2013] FCA 1142 at [36]). However, as her Honour's reasons make clear ([2013] FCA 1142 at [37]), there is nothing in the pleading of either party (that is to say, including Samsung's pleadings) to alert either party to the proposition that ongoing negotiations for the period after the end of 2011 were relevant to the case. Notwithstanding Samsung's criticism of this statement by her Honour, the statement - properly understood - is unquestionably correct. There was nothing in the case as pleaded - and as particularised - to alert the parties that any such ongoing discussions were relevant; and there had been nothing which had been expressly conveyed from Samsung to Apple to alert Apple to the prospect that evidence of what had been said and done at any meeting after July 2011 would be relied upon.
35 Yet, as the primary judge's reasons demonstrate ([2013] FCA 1142 at [110] to [114]), the evidence of one of the proposed witnesses (Mr Korea) was intended to introduce as a critical part of Samsung's case numerous parameters discussed by the parties in the context of the settlement of international litigation and ongoing commercial arrangements that post-date the negotiations that are in issue in the pleadings. Her Honour further found that the proposed evidence seeks to import considerations beyond the subject matter of the Australian litigation. It would be difficult, as submitted on behalf of Apple in this Court, to "disentangle" from the international negotiations that which was of relevance to the Australian negotiations. Rather than her Honour not addressing the potential relevance of the proposed further evidence to the legal issues sought to be canvassed by Samsung, her Honour's reasons - with respect - directly address that very issue.
36 Although it was submitted on behalf of Samsung that these reasons exposed a failure to appreciate the manner in which it sought to advance its case and (in particular) its reliance upon a "global market", it is considered that no error is exposed. Her Honour's reasons provide a complete answer to the proposition that the exclusion of the evidence of Mr Korea would cause proceedings on the central issues in the case to proceed on a false basis. This is because, as her Honour recognised, the evidence sought to be addressed went far beyond the licensing of the three "standard essential patents" in issue. The negotiations introduce other patents, other species of property and the question of disputes with at least one other entity which is not a party to the proceeding.
37 It is no answer to the difficulties raised by the breadth of the evidence to say that the market in issue in the present case is a "global market". Her Honour correctly recognised that it was not apparent on the face of the proposed evidence that it related directly to the matters in issue. It therefore followed that the exclusion of the evidence will not shut Samsung out from adducing critical evidence. Her Honour was correct in finding that, at least so far as this body of evidence was concerned, it was of low probative value.
38 In any event, it is not at all clear that Samsung will be prejudiced by the exclusion of the two proposed further witness statements because it intends to tender the correspondence contained therein and cross-examine witnesses about this topic.
39 Second, as the High Court has made clear, there are limits to the opportunity that a court will afford to a litigant to agitate a case not previously raised, particularly if the litigation is well advanced. This principle applies not only to applications to amend pleadings but to all interlocutory rulings that bear upon the timely resolution of proceedings (see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [51]). There is, as the High Court has recognised, no "right to amend": Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175. Gummow, Hayne, Crennan, Kiefel and Bell JJ there observed:
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
On behalf of Samsung it is, of course, contended that the proposed further evidence goes to a case that has been long "pleaded". But that was not the conclusion of the primary judge. When the general allegations of continuing conduct are read in the light of the absence of particulars, no error emerges from her Honour's reasons. No doubt that is why Samsung proposed to further amend its pleadings. The application to lead additional evidence was merely a precursor to an application to amend.
40 Although the primary judge's reasons do not expressly set out the number of the conversations deposed to by Mr Korea - or particulars of them - his proposed evidence includes a detailed account of conversations alleged to have taken place at 15 different meetings on 20 different days attended by 14 different individuals on behalf of Samsung and 12 different individuals on behalf of Apple. Given the advanced state of the preparation of the case for hearing, evidence was scarcely necessary to demonstrate that if his statement were to be admitted the hearing would be delayed with no real certainty as to when the case may be concluded.
41 Third, it is wrong to say that her Honour failed to consider the prejudice to Samsung if the evidence is excluded. Her Honour weighed the obvious prejudice to Apple against the probative value of the evidence sought to be adduced. She articulated and applied the correct principles and took into account any prejudice asserted by Samsung. This weighing process was predicated upon her Honour's finding that the additional evidence was of very low probative value.
42 There is another broader aspect of Samsung's complaint concerning the primary judge's assessment of its claimed prejudice. It relates to Samsung's concern, which is said to be based on a letter dated 5 November 2013 from Apple's solicitors, that the effect of the primary judge's decision precludes it not only from relying on the witness statements but also tendering the various business records annexed to those statements. The construction of Apple's letter is not accepted. Moreover, and as Apple correctly submits, Samsung's concerns are premature as the admissibility of the annexed material will be a matter for the primary judge at trial. That issue may arise if Samsung seeks to tender some or all of the material or rely on it in cross-examination as it apparently proposes to do. Nothing in this judgment should be taken as indicating a view one way or the other as to the admissibility of those annexed materials.
43 Importantly, her Honour's judgment was a discretionary decision on a matter of practice and procedure involving a refusal to permit late evidence to be relied upon in circumstances which would have permitted Samsung to expand its case with considerable prejudice to Apple resulting in disruption to the proceedings. These matters also informed her Honour's ruling in respect of s 135 of the Evidence Act. Had her Honour not considered the potential significance and relevance of the two proposed further witness statements, it would not have been necessary for her Honour to have separately considered s 135.
44 Fourth, it is wrong to contend that her Honour ignored Samsung's reasons for delay and elevated the perceived absence of reasons into an "overarching test". Her Honour correctly found that no real explanation was offered. She referred ([2013] FCA 1142 at [143]) to the fact that the High Court has stressed the importance of an explanation by the party seeking the exercise of the Court's discretion. Her Honour took into account, as she was entitled to, that an important factor against the exercise of the discretion in Samsung's favour was its failure to give any good reason for its inordinate delay. Her Honour did not treat the deficiency in Samsung's explanation as determinative. Clearly enough, her Honour was not impressed with either the failure to file evidence by August 2012 or the failure to more fully explain the failure to do so. Senior Counsel for Samsung, again with the greatest of respect, does a disservice to the careful reasons for decision to submit that the reasons for delay were "ignored". The conclusion which was in fact reached was that there was "no real explanation for the delay" ([2013] FCA 1142 at [74]) or, differently expressed, "no satisfactory explanation of the delay" ([2013] FCA 1142 at [155]). But the assumed "explanation" was also expressly identified: [2013] FCA 1142 at [74]. Put simply, such "explanation" was not considered to be persuasive. The proposed notice of appeal asserts (inter alia) that the delay in the filing of the further witness statements was explained "having regard to the evidence that there was a mutual understanding between the parties …". This was a matter expressly addressed. It also does disservice to the careful reasons for decision to submit that the relevance of an absence of reasons was misconceived as an "overarching test for admission" or that "the perceived absence of an explanation of delay by Samsung was effectively treated as a disqualifying factor". Albeit a matter of significance to her Honour's decision, the absence of any "real explanation" remained a matter of relevance to the discretion to be exercised and remained but one of a number of considerations taken into account. The manner in which Samsung approached the necessity for it to comply with directions for the filing of evidence is, perhaps, only underlined by its written submission to this Court that "the original deadline for Samsung's evidence of August 2012 is not particularly relevant". It may be that in some cases an explanation, albeit an unsatisfactory one, will not be considered by a court to be a bar to the favourable exercise of a discretion: cf. Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101, 187 FCR 261. But here the absence of a satisfactory explanation was a factor that her Honour was entitled to take into account, particularly where her Honour weighed in the balance the probative value of the evidence sought to be admitted.
45 As the primary judge's reasons state ([2013] FCA 1142 at [145]), her Honour weighed all matters relevant to the exercise of the discretion. The matters included the delay of almost 12 months by Samsung, which was, and still is largely unexplained. Evidence as to events that occurred in September and December 2012 and January 2013 could not, obviously enough, have been filed by August 2012. Reference relied upon by Senior Counsel for Samsung to statements made in (for example) assumptions to experts, are not sufficient notice. Such references provide no unequivocal notice to Apple that events post-July 2011 were to be relied upon by Samsung. This Court, it has long been recognised, deplores "any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue": cf. White v Overland [2001] FCA 1333 at [4] per Allsop J (as his Honour then was). This concern is not confined to this Court: Nowlan v Marson Transport Pty Ltd (No 2) [2001] NSWCA 346 at [28] to [29], 53 NSWLR 116 at 128 per Heydon JA (Mason P and Young CJ in Eq agreeing). And there was no express statement made by those appearing for Samsung - in correspondence or elsewhere - prior to mid-2013 that evidence would be adduced and relied upon as to anything that was said and done and as to offers made at meetings post-July 2011. And no express statement was made that any such evidence would be sought to be adduced and relied upon by Samsung going to any of the three legal issues identified, namely: the appropriateness of injunctive relief; whether negotiations were conducted in good faith; and market power. Given the manner in which the case had been prepared for hearing, such express notice should have been provided by Samsung. The passage of time has eroded any such message as may have been left in the sand by Samsung.
46 Samsung's separate contention that the primary judge erred by taking into account its proposed amendments is also without substance. Contrary to Samsung's contention, the proposed amendments were not an irrelevant consideration. Her Honour made reference to the proposed amendments in [40] in the context of comparing them with Samsung's existing pleadings. That simply served to highlight that Samsung was seeking to raise new issues, including Samsung's conduct which occurred after the original conduct the subject of Apple's complaints. The proposed amendments reinforced her Honour's earlier observations regarding the disconnection between the proposed witness statements and the existing pleadings.
47 None of the asserted errors relied upon by Samsung warrants a grant of leave to appeal.