ShoreForm (Qld) Pty Ltd v Millennium Coal Pty Ltd

REASONS FOR JUDGMENT 1 These are my short reasons in relation to the applicant's application to amend its pleadings, the application being brought under r 16.53 of the Federal Court Rules 2011 (Cth). 2 In broad summary, the substantive respects in which the applicant seeks leave to amend are to plead that either or both of the respondents represented that it or they would consider contracting directly with the applicant, ShoreForm, to ensure that all work done by ShoreForm would be paid for by the respondents, or either of them. This is the proposed paragraph 20A. A further proposed amendment, paragraphs 39 through to 44, seeks to plead that ShoreForm relied on these representations as to a future contract by deciding not to suspend work and by continuing to provide formwork services to the respondents. 3 The application to amend was said to have arisen out of the service, late on 20 March 2014, of an affidavit on behalf of the respondents affirmed by a Mr Mortenson which affidavit annexed emails dated 17 January 2006. I accept that the application did so arise. The application to amend was made promptly thereafter. 4 The application was argued on 31 March 2014, the first day of the trial. 5 For the purposes of the present application I do not assess the merits of the proposed amendments but find that they are arguable. Also I note that the respondents contended that the amendments involve a new cause of action which is now statute barred, but in my opinion it is not appropriate to form any view about that plea for the purposes of this application to amend. 6 I also do not embark on the merits of whether or not the emails should have been disclosed earlier: it is common ground that they were not disclosed earlier. I was not taken in any detail to whether or not the emails of 17 January 2006 should have been discovered. The applicant says the emails should have been disclosed but there is some evidence from the respondents, in the affidavit of Mr Morrissey, that the emails were not among the respondents' documents that were reviewed for the purposes of discovery. 7 The dispositive issue is the question of prejudice to the respondents. 8 I note that at a factual level allegations of conversations as to whether or not there was to be a contract between ShoreForm and one or other or both of the respondents have been the subject of (presently unread) affidavit evidence of Mr Saba since late November 2012 and that some, at least, of those conversations are alleged to have taken place between Mr Mortenson and Mr Saba and a Mr Vorias and Mr Saba. Mr Vorias appears to have been the Managing Director of one of the respondents. In any event both he and Mr Mortenson appear to have been in senior positions and have had direct involvement in the relevant events on behalf of one or other of the respondents. I note that Mr Mortenson and Mr Vorias are to be called on behalf of the respondents and are due to give evidence later this week. I also accept that neither of them is presently employed by either of the respondents. Mr Saba is also due to give evidence on behalf of the applicant. 9 I take into account that the proposed amendments refer to events that occurred in late 2005 or early 2006 but, as I have said, the statements on which the applicant seeks to rely are not totally or relevantly new. 10 I accept and take into account that the amendments may require the respondents to seek to have Mr Mortenson and Mr Vorias turn their minds to these matters. 11 I also accept that in the course of this week it will not be possible for the respondents to contact and obtain proofs of evidence from the relevant personnel who at the time had responsibility for contractual matters at the respondents' head office in Brisbane, none of whom now works for the respondents. 12 I further accept that in the course of this week it will not be possible for the respondents to conduct searches to identify relevant documents either at all or to be provided to the witnesses to be called, Mr Mortenson and Mr Vorias, or to those potential witnesses to whom I have just referred. 13 However it is not presently clear to me that, in order to deal with the proposed amendments, the respondents will need to take those steps. 14 I raised with the parties whether one available course might be to postpone ruling on the application to amend until after I had heard the evidence of at least some of the witnesses. The respondents, I understood, opposed that course and on reflection it seems to me to bring an unsatisfactory level of procedural uncertainty to the conduct of the trial. 15 Taking these matters into account, I allow the proposed amendments. If it does become clear that the respondents are in fact prejudiced I will need to consider at that point what procedural steps then become necessary. At present I would observe that I would be unlikely, for example, to entertain any Jones v Dunkel submission arising from the amendment based on any absence of respondents' witnesses and, on what I have been taken to for the purposes of the application to amend, I would be similarly unlikely to draw any inference adverse to the respondents from any absence of relevant documents. In so saying, I do not rule out that the parties may wish to make submissions on those questions for purposes other than the application to amend. 16 The respondents should file a defence to the statement of claim as amended. That is to be done by 5 pm on 8 April 2014. I reserve costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.