BETWEEN : WESTRAINT RESOURCES PTY LTD (ACN 009 083 783)

Civil procedure - Amendment of pleadings - Application to amend writ of summons and statement of claim - Whether proposed amendments are precluded by the Full Court decision on a previous application by the plaintiff to amend its pleadings in these proceedings - Whether proposed pleading that a document is a deed is arguable - Whether there has been acknowledgement of liability by the defendant - Turns on own facts

1 LE MIERE J: The plaintiff applies for leave to amend its statement of claim in terms of the minute of proposed re-amended statement of claim dated 10 September 2008. The plaintiff also applies for leave to amend the writ of summons in terms of a minute filed on 19 June 2008. It is common ground that the application to amend the writ of summons will stand or fall on the success of the application to amend the statement of claim. The defendant opposes the applications. Before outlining the proposed amendments to the statement of claim I will outline the current statement of claim.

2 The current statement of claim is the plaintiff's amended statement of claim filed on 10 December 1998.

3 In [3] of the current statement of claim the plaintiff pleads that by an agreement in writing made between Hancock Mining Ltd (HML), Pennant Pty Ltd and the defendant made on 6 June 1988 (6 June 1988 Agreement) the defendant agreed with HML, amongst other things:

(a) to procure the sale and delivery of 14 million tons of Mt Newman iron ore to MIMEX (a body established by the Socialist Republic of Romania) in satisfaction of the obligations of HML to supply iron ore pursuant to a contract between HML and MIMEX dated 3 November 1986 as varied from time to time (Romanian Ore Sales Contract); and

(b) to purchase from HML 350 complete sets of Ore Wagons free into store Port Hedland for a price of $26 million on terms whereby property in such Ore Wagons was to pass progressively to the defendant as and when payments was made, such payments to be by periodic instalments as and when ore was delivered by the defendant in satisfaction of HML's obligations under the Romanian Ore Sales Contract, at a fixed dollar rate per ton equal to $26 million divided by 14 million tons provided that 75 of such wagons were to be delivered and paid for (in the sum of $5,571,000) irrespective of whether or not ore was delivered by the defendant in satisfaction of HML's obligations under the Romanian Ore Sales Contract.

4 In [6] the plaintiff pleads that by a document dated 17 May 1989 HML and the defendant more fully and formally recorded the terms of their agreement with respect to the sale and purchase of the Ore Wagons (Ore Wagons Sale and Purchase Agreement).

5 In [9] the plaintiff pleads that in breach of the 6 June 1988 Agreement on 16 August 1990 the defendant refused and at all material times thereafter continued to refuse to supply any Mt Newman ore on behalf of HML to MIMEX in satisfaction of HML's obligations to supply iron ore to MIMEX pursuant to the Romanian Ore Sales Contract.

6 In [10] the plaintiff pleads that by reason of and in consequence of its breach of the 6 June 1988 Agreement the defendant also breached the Ore Wagons Sale and Purchase Agreement in that it has failed to purchase any of the remaining 275 ore wagons for the sum of $20,429,000 remaining to be paid pursuant to the terms of the 6 June 1988 Agreement and the Ore Wagons Sale and Purchase Agreement.

7 By [12] the plaintiff pleads that by a deed dated 1 April 1992 and executed by the plaintiff, the defendant and HML, HML assigned to the plaintiff all of its rights, title and interest in the Ore Wagon Sale and Purchase Agreement together with any and all accrued rights or claims to damages or any other interest of HML as against the defendant arising from or in respect of any non-performance or breach of:

(b) the 6 June 1988 Agreement in so far as it obliged the defendant to supply Mt Newman ore in satisfaction of the Romanian Ore Sales Contract to the extent that such performance or breach affected the defendant's obligations under the Ore Wagons Sale and Purchase Agreement;

with the express consent and acknowledgement of the defendant (Deed of Novation).

8 The plaintiff claims damages for the defendant's breach of the 6 June 1988 Agreement and the Ore Wagon Sales and Purchase Agreement.

The plaintiff's application to amend the statement of claim in 2000

9 In December 2000 the plaintiff sought to amend its statement of claim so as to introduce new causes of action. The new causes of action then proposed consisted of new causes of action for breach of contract and new equitable claims. The defendant opposed the amendments. The defendant contended that some of the amendments introduced claims which were barred by the operation of the Limitation Act 1935 (WA) and that others failed to disclose a triable issue. On 8 May 2001 Scott J gave the plaintiff leave to amend except for amendments which were described as the 'Lygren amendments'. Those amendments introduced a claim for damages arising out of a contract described as the Lygren Agreement and made on about 11 December 1987 between the plaintiff and a shipping company, IMR Transport Corporation.

10 The defendant applied for leave to appeal against the decision granting the plaintiff leave to amend. The Full Court granted leave to appeal and allowed the appeal (BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18) (Westraint). The principal judgment was delivered by Steytler J, with whom Anderson J agreed.

11 The current pleadings raise the following issues. First, under the 6 June 1988 Agreement was the defendant obliged to supply Mt Newman iron ore to satisfy obligations owed by HML to MIMEX under the Romanian Ore Sales Contract and if so, did it repudiate the 6 June 1988 Agreement on 16 August 1990? Secondly, under the Ore Wagons Sale and Purchase Agreement was the defendant obliged to purchase ore wagons from HML on terms whereby property in the ore wagons was to pass progressively to the defendant on payment, such payment being made only when ore was delivered by the defendant in satisfaction of HML's obligations under the Romanian Ore Sales Contract? Thirdly, did HML validly assign to the plaintiff all of its rights to sue for damages for breach of the 6 June 1988 Agreement and the Ore Wagons Sale and Purchase Agreement? Fourthly, is the plaintiff entitled to damages and interest?

12 In [7] of her affidavit sworn 17 July 2008, Jennifer Johnson, a solicitor assisting in the conduct of the matter on behalf of the defendant, swore that the proposed statement of claim raises the following new factual and legal issues:

(a) it is alleged that the 6 June 1988 Agreement is a deed (the indorsement of writ and paragraph 2.29 of the Proposed Statement of Claim);

(b) it is alleged that the defendant promised to maximise the defendant's sale of Mt Newman iron ore under the Romanian Sales Proposal (paragraph 2.31(2) of the Proposed Statement of Claim);

(c) it is alleged that the defendant promised that where there was a disagreement as to price, the defendant would meet with HML to discuss and resolve the fulfilment of the defendant's obligations under the Romanian Sales Proposal (paragraph 2.31(4) of the Proposed Statement of Claim);

(d) it is alleged that the defendant promised HML that the defendant would use its best endeavours to implement and give full effect to the arrangements contemplated by the 6 June 1988 Agreement (paragraph 2.32(1) of the Proposed Statement of Claim);

(e) it is alleged that the defendant promised HML that the defendant would act in good faith and with due regard to HML's interests pursuant to the 6 June 1988 Agreement (paragraph 3(1) of the Proposed Statement of Claim); and

(f) it is alleged that the defendant promised HML that the defendant would do all things reasonably within its powers to give HML the full benefit of the 6 June 1988 Agreement and do nothing to interfere with or prevent the full benefit thereof from accruing to HML (I refer to paragraph 3(2) of the Proposed Statement of Claim) which included the arrangements contemplated thereby, including the Ore Wagon Agreement (paragraph 9.7 of the Proposed Statement of Claim).

13 In [8] of her affidavit Ms Johnson says that the proposed statement of claim raises the following new causes of action:

(a) that the defendant did not use its best endeavours to procure the sale to Mimex of 14mt of iron ore or spot cargos at a price which, after deduction of counter trade costs, was competitive with C&F Rotterdam so as to implement and give full effect to the arrangements contemplated by the 6 June 1988 Agreement (paragraph 9.1 of the Proposed Statement of Claim);

(b) that the defendant did not maximise its sale of iron ore under the Romanian Sales Proposal (paragraph 9.2 of the Proposed Statement of Claim);

(c) that the defendant did not use its best endeavours to implement and give full effect to the arrangements contemplated by the 6 June 1988 Agreement (paragraph 9.2 of the Proposed Statement of Claim);

(d) that the defendant did not act in good faith and with due regard to HML's interests pursuant to the 6 June 1988 Agreement (paragraph 9.2 of the Proposed Statement of Claim);

(e) that the defendant breached the implied term to do all things reasonably within its power to give HML the full benefit of the 6 June Agreement and do nothing to interfere with or prevent the full benefit thereof from accruing to HML (paragraph 9.2 of the Proposed Statement of Claim);

(f) that the defendant did not sell and deliver 14mt of iron ore under the Romanian Sales Proposal (paragraph 9.3 of the Proposed Statement of Claim);

(g) that the defendant, having agreed on price, from August 1989 refused to supply iron ore to Mimex (paragraphs 9.4 and 9.5 of the Proposed Statement of Claim);

(h) that the defendant, having agreed on price, from August 1989 refused to supply iron ore in breach of the express term to maximise the defendant's sale of Mt Newman iron ore under the Romanian Sales Proposal (paragraph 9.5 of the Proposed Statement of Claim);

(i) that the defendant, having agreed on price, from August 1989 refused to supply iron ore in breach of the express term that, where there was a disagreement as to the price of iron ore, the defendant would meet with HML to discuss and resolve the fulfilment of HML's obligations under the Romanian Sales Proposal (paragraph 9.5 of the Proposed Statement of Claim);

(j) that the defendant, having agreed on price, from August 1989 refused to supply iron ore in breach of the express term that the defendant would use its best endeavours to implement and give full effect to the arrangements contemplated by the 6 June Agreement (paragraph 9.5 of the Proposed Statement of Claim);

(k) that the defendant, having agreed on price, from August 1989 refused to supply iron ore in breach of the implied term that the defendant would act in good faith and with due regard to HML's interests pursuant to the 6 June 1988 Agreement (paragraph 9.5 of the Proposed Statement of Claim)

(l) that the defendant, having agreed on price, from August 1989 refused to supply iron ore in breach of the implied term that the defendant would do all things reasonably within its power to give HML the full benefit of the 6 June 1988 Agreement and do nothing to interfere with or prevent the full benefit thereof from accruing to HML (paragraph 9.5 of the Proposed Statement of Claim);

(m) that the defendant did not act I good faith and with due regard to HML's interests (paragraph 9.6 of the Proposed Statement of Claim); and

(n) that the defendant did not do all things reasonably within its power to give HML the full benefit of the 6 June 1988 Agreement and the arrangements contemplated thereby, including the Ore Wagon Agreement (paragraph 9.7 of the Proposed Statement of Claim).

14 Senior counsel for the plaintiff agrees that the proposed statement of claim raises the new causes of action identified by Ms Johnson. Senior counsel for the plaintiff agreed that the proposed amendments to the statement of claim are in substance the same as the amended contract claims unsuccessfully sought to be introduced by the proposed amendments in 2000. However, senior counsel submits that the factual matters and issues raised by those new causes of action are already raised by the current statement of claim, further and better particulars of statement of claim and of reply dated 19 November 1997, the defendant's substituted defence dated 30 June 2008 and the plaintiff's reply of 20 July 1999.

15 The defendant submits that it will suffer prejudice if the amendments are allowed. The defendant says that if the amendments are allowed, this will require extensive amendments to the defendant's defence, further discovery and witness statements will have to be exchanged. The defendant submits that the witnesses' memories of events is decreasing and further witness statements would need to be taken from a number of persons who have already provided statements in the proceeding. The proposed statement of claim pleads a breach of agreement by the defendant by April 1989. The defendant says that except for Mr Carroll, none of the witnesses work for the defendant any more and of all the witnesses, only three of them live in Western Australia.

16 In Westraint Steytler J considered the issues of prejudice and case management and said:

It is enough to say, under this heading, that it is plain, even from the amendments taken on their own, that both parties will be required to expend a substantially greater amount of time and money in preparing the case if the amendments to which I have referred were to be allowed than if they were not to be allowed. The amendments canvass many new issues, some of them spanning many years and a great deal of evidence. If I am right in the conclusions at which I have arrived as regards those claims which I have found to be unsustainable, that time and money will be wasted and court time will be unnecessarily taken up in respect of them [101].

17 I respectfully agree with those observations. If the proposed amendments are allowed then the defendant will be required to expend a substantially greater amount of time and money in preparing its case. Elspeth Hensler was in 2001 a solicitor assisting in the conduct of the defendant's case. On 15 January 2001 Ms Hensler affirmed an affidavit in opposition to the plaintiff's 2000 application to amend its then current statement of claim. At [24] - [33] and [45] of Ms Hensler's affidavit she affirmed the circumstances surrounding the preparation of the defendant's witness statements and difficulties and expense involved in this process. Ms Hensler affirmed:

1. When I interviewed (or assisted in interviewing) BHPIO's witnesses to prepare witness statements (which were exchanged prior to July 2000), I approached these tasks by reference to Westraint's existing amended statement of claim and BHPIO's existing amended defence. The witness statements were prepared to answer the allegations made in Westraint's existing statement of claim. Particularly, I approached these tasks by reference to what Westraint said was the position with respect to countertrade and barter. In para 3C of Westraint's existing amended statement of claim, it is expressly pleaded that countertrade and barter was HML's/Burwill's responsibility and BHPIO would be paid by a letter of credit. In the proposed re-amendments, this position is now disputed by Westraint.
2. I interviewed (or assisted in interviewing) each of Mr Carroll, Mr Freeman, Mr Rouse, Mr Dean, Dr Greene, Mr McDonald, Mr Maith, Mr O'Shannassy, Mr Robertson, Mr Oldham and Mr Wedlock in order to prepare draft witness statements on their behalf. In making their witness statements, these witnesses relied on documents discovered by Westraint in September 1996 and documents discovered by BHPIO in November 1996 and July 1997. I prepared a file of documents relevant to each witness (extracting relevant discovered documents) for each witness. Each witness referred to these documents when I took a statement from them. As explained below, these witnesses had to have their memories refreshed by these documents and I am concerned that their recollection of the detail of the transactions has diminished over time.
3. Witness statements signed by Mr Carroll, Mr Freeman, Mr Rouse, Mr Dean, Dr Greene, Mr McDonald, Mr Maith, Mr O'Shannassy, Mr Robertson, Mr Oldham and Mr Wedlock were served on Westraint between about 28 April 2000 and 18 July 2000.
4. When I interviewed (or assisted in interviewing) them, Mr Freeman, Mr Rouse, Mr McDonald, Mr O'Shannassy, Mr Robertson, Mr Oldham and Mr Wedlock were no longer employed by BHP. Since I interviewed them, Mr Dean, Dr Greene and Mr Maith have either left BHP, or they are in the process of leaving BHP. If the proposed re-amendments were allowed, further witness statements will be required and it will be much more difficult for BHPIO to obtain witness statements from these witnesses.
5. Because many of BHPIO's witnesses do not live in Perth (Mr Carroll lives in Melbourne, Mr Rouse lives in Sydney, Mr Dean lives in Melbourne, Dr Greene lives in London, Mr McDonald lives in Brisbane, Mr Maith lives in Belo Horizonte, Brazil, Mr Robertson lives in the United Kingdom and Mr Oldham lives in Brisbane), or are often travelling, it was difficult to arrange the interviews with BHPIO's witnesses and in some cases, the witnesses had to cancel interviews that had been arranged, causing further delays. It was particularly time consuming and expensive to take and settle statements with witnesses no longer employed by BHP and overseas witnesses.
6. If Westraint is given leave to re-amend the statement of claim, I will have to interview Mr Carroll, Mr Freeman Mr Rouse, Mr Dean, Dr Greene, Mr McDonald, Mr Maith, Mr O'Shannassy, Mr Oldham and Mr Wedlock again, and in all likelihood, interview further witnesses, to put questions to them as to the matters described in paragraph 7, all of which relate to a period between 8 and 14 years ago.
7. I am informed by Brahma Dharmananda, the partner with conduct of this action on behalf of BHPIO, that discovery was also costly and time consuming. In excess of 11,500 documents have been discovered, sourced from BHP and its agents worldwide.
8. As discovery had been made, a mediation conference held, witness statements exchanged, a proposed trial bundle of documents collated and objections to witness statements and the proposed trial bundle exchanged, I believed that in November 2000, the action was on the point of going to trial. If Westraint is given leave to re-amend the statement of claim, there will be extensive amendments required to BHPIO's defence, further discovery and witness statements will have to be exchanged and a new trial bundle of documents collated before the action can go to trial.
9. When witness statements were being exchanged in the first half of 2000, I tried to locate representatives of the then Romanian Government who could provide evidence relevant to the matters already raised in this action. I was unable to locate any of the representatives. Particularly, I was informed by Dr Greene and Mr Maith and believe that they no longer have contact details for either Mr Petrescu or Mr Geormaneanu with whom they negotiated on behalf of Mimex. I do not know how to contact other representatives with whom Mr Hancock may have had dealings. Nicolae Ceaucescu, the former president of Romania with whom I understand Mr Hancock had dealings, was shot on Christmas day, 1989.
10. Lang Hancock and Kevin Dalby, who would have been important witnesses in that they represented HML in negotiations with various Romanian Government bodies, BHPIO, the Pennant group of companies ('Pennant'), iron ore producers (for example, Hamersley Iron, ISCOR and Robe river), have passed away.

1. Witnesses' recollections may have faded over time, particularly as to the detail of the transactions in which they were involved. When interviewing BHPIO's witnesses, their memories had to be refreshed by the discovered documents. As a number of the new allegations made in the proposed re-amended statement of claim are not time specific (for example, I refer to 2A.4 - 2A.6) it will be particularly difficult to obtain instructions or evidence on these new allegations. Apart from Lian Davies, who was secretary of EPIOC (1990-1992), none of the officers of BHP who instruct us in relation to the action have any personal knowledge of the matters in issue in the action.

18 In her affidavit sworn 17 July 2008 Ms Johnson swore:

(a) my review of the Proposed Writ and the Proposed Statement of Claim;

(b) my understanding of the new factual issues and causes of action which are sought to be raised by the plaintiff in this action (which I have referred to in paragraphs 6 and 7 above); and

(c) the expanded time period over which the alleged breaches are said to have occurred (dating back to June 1988),

I can say that prior to the trial of this action, it would be necessary to take further statements from a number of persons who have already provided statements in this action, to specifically deal with these new issues. In addition, it may be necessary to take statements from additional persons.

1. By way of example only, I refer to the following matters which the defendant would be required to pursue with witnesses:

(a) whether there were any formal meetings, or any attempts to have such meetings, with representatives of HML in 1989, 1990 and 1991 (specifically, each year during the period between 16 September and 15 October), not including meetings under the auspices of EPIOC or meetings including other parties (for example, Romanian representatives), to discuss and resolve the fulfilment of HML's obligations under the Romanian Sales Proposal. This is necessary as the plaintiff is now pleading the breach of the term referred to in paragraph 7(i) above. From my review of Ms Hensler's affidavit, particularly paragraph 24 of her affidavit, it appears that when interviewing the witnesses, her focus was upon answering the allegations made in the plaintiff's Present Statement of Claim, particularly the position in respect of countertrade and barter issues; and

(b) whether the defendant's witnesses were aware of the contents of each and every addenda to the Romanian Sales Proposal as the Proposed Statement of Claim now pleads each and every addenda whereas the Present Statement of Claim only pleads addendas 4 and 9.

1. From my review of Ms Hensler's affidavit, particularly paragraph 24 of her affidavit, it appears that when interviewing the witnesses, her focus was upon answering the allegations made in the plaintiff's Present statement of Claim, particularly the position in respect of countertrade and barter issues. If the proposed amendments were allowed, it would be necessary to re-interview the witnesses to inquire whether there were specific meetings with HML representatives during the period and the nature of the meetings (as referred to in paragraph 16(a) above), and also to inquire as to their knowledge of the additional addendas pleaded for the first time (as referred to in paragraph 16(b) above).
2. Given the matters referred to above and the lapse of time since Ms Hensler's affidavit was affirmed in January 2001, I verily believe that the difficulties in obtaining witness statements to which she refers would be substantially increased if the defendant and its solicitors were now required to undertake further work to prepare statements. The new causes of action referred to in paragraph 7 above raise new claims which necessitate canvassing additional facts and circumstances which may require preparation of further witness statements and may give rise to further discovery requests or interlocutory applications.
3. In the course of my involvement in this matter and for the purposes of preparing this affidavit, I have spoken by telephone to each of the witnesses. None of the witnesses work for BHP Billiton anymore with the exception of Donald Carroll. Further to paragraph 28 of Ms Hensler's affidavit, I know that some of the witnesses have moved again. Of all the witnesses, only Mr Freeman and Mr O'Shannassy and Mr Wedlock live in Western Australia:

(a) Mr Dean and Mr Carroll live in Melbourne;

(b) Dr Greene and Mr Rouse live in New South Wales;

(c) Mr McDonald and Mr Oldham live in Queensland,

(d) Mr Robertson lives in the United Kingdom, and

(e) Mr Maith now lives in The Netherlands.

1. Further to paragraph 45 of Ms Hensler's affidavit, I know that Lian Davies is no longer employed by the defendant as an in-house legal counsel.

19 As I have said, senior counsel for the plaintiff submitted that the facts and issues raised by the proposed new causes of action were already raised on the existing pleadings. Senior counsel submitted that the witness statements exchanged on behalf of the defendant already addressed those matters.

20 I am satisfied that if the proposed amendments are allowed the defendant would have to take further statements from a number of persons who have already provided witness statements so as to deal with the new issues raised. It may be necessary to take statements from persons who have not previously given witness statements. Witnesses' recollections are likely to have faded over time, particularly as to the detail of meetings, communications and transactions in which they were involved. There would be a substantial prejudice to the defendant if the proposed amendments to the statement of claim are allowed.

The proposed amendments have already been rejected by the Full Court

21 The proposed amendments are substantially the same as those rejected by the Full Court in Westraint. Nevertheless, the plaintiff submits that the decision of the Full Court should not preclude the court allowing the present application. The plaintiff's arguments on this point are summarised in a letter of 10 September 2008 from the plaintiff's solicitors to the defendant's solicitors. In that letter the plaintiff's solicitors said, amongst other things:

(a) The decision of the Full Court stands in the place of the decision of Scott J. Hence, the position is as if Scott J had refused the amendment application made to [h]is Honour.

(b) An interlocutory application refused by Judge A may, in limited circumstances, be renewed before Judge A, Judge B or indeed any other judge.

(c) It is too extreme to say there is a rule of practice whereby no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied upon which could not reasonably have been obtained earlier. See Nominal Defendant v Manning [2000] NSWCA 80; (20000 [2000] NSWCA 80; 50 NSWLR 139 at [72] per Foster AJA (with whom Heydon JA agreed) and Clairs Keeley v Treacy [2004] WASCA 277; (2004) 29 WAR 479 at [11] per Steytler, Templeman & McKechnie JJ. The Court can and should entertain a second application where the interests of justice require such an outcome. See Clairs Keeley v Treacy [2004] WASCA 277; (2004) 29 WAR 479 at [7] & [13] per Steytler, Templeman & McKechnie JJ; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 at [24] per Steytler P & [70] - [73] per Pullin JA. See also Pioneer Concrete (WA) Pty Ltd v Elwood [2005] WASCA 48 at [30] per Pullin JA (with whom Malcolm CJ & McLure JA agreed).

(d) It was never submitted to either Scott J or the Full Court that the 6 June 1988 Document constituted a deed rather than a simple contract.

(e) Even treating the 6 June 1988 Document as a simple contract, it was never submitted to either Scott J or the Full Court that the plaintiff had available to it an 'acknowledgment reply'.

(f) Even treating the 6 June 1988 Document as a simple contract, the current law in Western Australia is that for limitation purposes amendments can be made to a statement of claim if they fall within the ambit of the indorsement on the writ of summons. See Jeffrey v Witherow [2006] WASCA 4; (2006) 31 WAR 236 at [36] per McLure JA (with whom Steytler P agreed). In BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 the Full Court incorrectly (with respect) looked at the statement of claim rather than the indorsement. See [76] & [86].

(g) To the extent that BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 directs attention to the statement of claim rather than the indorsement, the decision should no longer be regarded as good law. In hearing the plaintiff's re-amendment application, Le Miere J will be bound to apply the law as stated in Jeffrey v Witherow [2006] WASCA 4; (2006) 31 WAR 236 at [36].

22 I will deal first with the arguments that the 6 June 1988 document constituted a deed rather than a simple contract and that the plaintiff has available to it an 'acknowledgement reply'.

Is the 6 June 1988 document arguably a deed?

23 The plaintiff's claims are founded on the document described in [3] of the current statement of claim as 'an agreement in writing made between [HML], Pennant Pty Ltd and the defendant made on 6 June 1988' which the plaintiff there described as '6 June 1988 Agreement'. In the proposed statement of claim the plaintiff describes the document as '6 June 1988 Document' and pleads that upon a true construction of that document it constituted a deed between the parties and a 'specialty' within the meaning of Limitation Act 1935 (WA) s 38(1)(e)(i). The limitation period for an action alleging breach of a deed is 20 years: Limitation Act s 38(1)(e)(i). The limitation period for an action alleging breach of a simple contract is six years; Limitation Act s 38(1)(c)(v).

24 The cover sheet of the 6 June 1988 document reads 'Agreement as to outline of proposed formal agreements between [HML], Mt Newman Mining Co Pty Ltd and others'. The document consists of recitals, four principal terms and seven attached parts. The attached parts are entitled Definitions, Principal Agreement, Management Agreement, Shareholders' Participation Agreement, Ore Wagons Sale and Purchase Agreement, McCamey's Scree Agreement and Transport Agreement. The main part of the document is as follows:

THIS AGREEMENT is made the 6th day of June, 1988

BETWEEN

HANCOCK MINING LIMITED ... ('HML') of the first part

PENNANT PTY LTD ... ('PPL') of the second part

AND

MT NEWMAN MINING CO PTY LIMITED ... ('MNM') of the third part

WHEREAS:

1. HML has entered into the Romanian contract for the sale of iron ore to Romania on a long term basis.

1. HML and MNM have agreed the basis of a proposed arrangement to supply Mt Newman ore to Romania in accordance with the terms of the Romanian Contract.

1. HML, PPL and MNM have also variously agreed the basis of a series of proposed arrangements between them and others relating to, inter alia, the following matters:-

1. The parties desire to enter into this Agreement to detail the agreed basis of the proposed arrangements.

NOW THEREFORE in consideration of the premises and of the mutual understandings and agreements herein contained, the parties hereto agree as follows:-

1. Each of HML, PPL and MNM, by their respective execution hereof, acknowledge and agree that the terms contained in the following Parts 1 to 7 inclusive constitute the agreed basis of the proposed arrangements to be concluded between them.
2. Each of HML, PPL and MNM shall negotiate in good faith and use their respective best endeavours to implement and give full effect to the proposed arrangements contemplated by this Agreement. HML, PPL and MNM shall execute as soon as practicable but in any event by 31 August 1988, such formal documentation as may be appropriate and consistent with this Agreement. Notwithstanding that all or any of such formal documentation is not executed by 31 August, 1988 then each of HML, PPL and MNM shall nevertheless implement and be bound by the proposed arrangements contemplated by this Agreement.
3. Each of HML, and MNM agree that this Agreement shall take effect according to its tenor notwithstanding any prior agreement in conflict or at variance with any statements, representations, undertakings, correspondence or documents relating to the subject matter of this Agreement which may have passed between the parties to this Agreement prior to its execution and all such prior agreements, memoranda, statements, representations, undertakings, correspondence or documents are hereby expressly superseded by the terms of this Agreement and shall be of no further force or effect.
4. This Agreement, all of the provisions hereof and the contracts entered into by the parties hereto pursuant to this Agreement, shall be and remain confidential between the parties hereto and shall not be disclosed to any third party without the prior written consent of all of them PROVIDED ALWAYS that any of the parties hereto shall be at liberty without such consent to disclose the same:-

(a) to the extent that such party legally is required so to do, to any governmental agency or instrumentality in which case a copy of the same shall be furnished to the other parties prior to the disclosure, announcement or publication; or

(b) to banks or other financial institutions in connection with the organisation of such party's financial affairs.

IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and the year first hereinbefore written

HANCOCK MINING LIMITED by )

LANGLEY GEORGE HANCOCK )

Its Chairman of directors ) HANCOCK MINING LIMITED

In the presence of: ) by:

[Signature] [Signature]

PENANT PTY LTD by )

BRIAN GODFREY JOHNSON ) PENNANT PTY LTD

Its Executive chairman ) by:

In the presence of: )

[Signature] [Signature]

MT NEWMAN MINING CO PTY )

LIMITED by GORDON MARCUS ) MT NEWMAN MINING CO PTY

FREEMAN its Chief Executive ) LIMITED by:

Officer in the presence of: )

[Signature] [Signature]

25 In Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 Young J considered whether a transfer by way of mortgage was a deed. Young J undertook a review of the origins of deeds commencing with the observation:

It seems to be a feature of every legal system that there must be some particular ritual, act or instrument by which a person can notify the community that he most solemnly means what he is doing as being binding on him. In Biblical times, this solemnity was provided by the contracting parties slaughtering an animal, cutting its carcass in two, and together walking between the two halves, see Genesis Ch 15:10-18 (367).

Thus the substantial requirement of a deed is that it be intended by the party who does it to be the most solemn indication to the community that he really means to do what he is doing. That solemn indication is given by sealing a deed which witnesses to what has been done. Even today, these documents say: 'in witness whereof I have hereunto affixed my hand and seal'. So then, a deed is the most solemn act that a person can perform with respect to a particular property or contract involved, and the form of that deed is as laid down by the law from time to time (367 - 368).

27 Formal requirements with respect to deeds have changed from time to time. Property Law Act 1969 (WA) s 9 provides that deeds must be signed and attested by at least one witness not a party to the deed. It is not necessary to seal a deed and formal delivery and indenting are not necessary. Section 9(4) provides:

Every instrument expressed or purporting to be an indenture or a deed or an agreement under seal or otherwise purporting to be a document executed under seal and which is executed as required by this section has the same effect as a deed duly executed in accordance with the law in force immediately prior to the coming into operation of this act.

28 The meaning of the phrase 'expressed or purporting to be an indenture or a deed' was considered by Ipp J in Dean & Westham Holdings Pty Ltd v Lloyd (1990) 3 WAR 235:

Before considering that material it is necessary to determine whether the instrument is expressed or purports to be a deed, as required by s 9(4) of the Property Law Act. Unless this requirement is fulfilled, the document will not have effect as a deed, irrespective of the parties' intention.

As the learned trial judge pointed out:

'The meaning of "expressed" is obvious enough. It means, clearly indicated or distinctly stated, rather than implied.'

'Purport' according to the Macquarie Dictionary means 'to profess or claim ... to convey to the mind as the meaning or thing intended; express, imply, ... tenor, import or meaning, ... purpose or object ...'. In the context of s 9(4) of the Property Law Act 'purporting' is used in contra-distinction to 'expressed'. Thus, in my view, an instrument which is not clearly indicated or distinctly stated to be a deed, but which otherwise conveys to the mind, by implication, through its tenor and the words used therein, that it is intended to be a deed, is an instrument purporting to be a deed.

Where an instrument is clearly indicated or distinctly stated to be a deed, absent any extrinsic evidence to the contrary, it would ordinarily be inferred that the parties intended that it should have effect as a deed. The question whether an instrument purports to be a deed is closely bound up with the question whether it appears from the words used in the instrument that the parties intended it to be a deed. Thus the resolution of the questions whether there has been compliance with s 9(4) of the Property Law Act and whether the parties intended the instrument to be a deed depend, in the circumstances of this case, upon a construction of the instrument itself.

The learned trial judge held that in determining whether an instrument was expressed or purported to be a deed, in terms of s 9(4), regard should be had to the form of the instrument alone, and not its substance. He said that it was unnecessary 'to determine whether the document is in substance a deed. Subsection (4) provides no justification for such an exercise.' With great respect I differ from that view. I have already pointed out that, in my opinion, s 9 of the Property Law Act does not dispense with the requirement of intention, and, 'purporting', in the context of s 9(4), does not mean convey to the mind by form alone, but, rather, convey by the instrument as a whole, including both its form and its tenor or substance (252).

29 The form and substance of the 6 June 1988 document does not disclose that the parties intended it to have effect as a deed or that it purports to be a deed. That is so for a number of reasons.

30 First, the document describes itself as an agreement. The word 'agreement' is used throughout the document. The word 'deed' does not appear at all.

31 Secondly, the parties described the document on the cover sheet as an agreement as to outline of proposed formal agreements between the parties. An outline of proposed formal agreements suggests a lack of formality, solemnity and conclusiveness associated with a deed. The 6 June 1988 document is intended by the parties to be legally binding upon them but that is consistent with the document being a simple contract.

32 Thirdly, the document envisages that it will be followed by more formal documentation - see in particular cl 2.

33 Fourthly, each of the parties to the document is a corporation. Each corporation executed the document by its attorney signing the document. It was not sealed with the seal of the corporation. That is, the document was not executed with the formality and solemnity that is the mark of a deed.

34 Fifthly, the substance of the agreement does not point to the document being a deed. The agreement between the parties involved the mutual exchange of promises. It did not for example involve a party undertaking obligations without consideration. On the face of the document, and having regard to the agreement contained within it, the document appears to be a simple contract and not a deed.

35 Senior counsel for the plaintiff relied upon four matters in support of his argument that the parties intended the document to be and operate as a deed. First, cl 2 of the document provides that each of the parties shall negotiate in good faith and use their respective best endeavours to implement and give full effect to the proposed arrangements contemplated by the agreement. That does not support the plaintiff's argument. A provision that the parties shall negotiate in good faith and use their best endeavours to implement and give effect to proposed arrangements may as readily be found in a simple contract as in a deed. There is nothing about the existence of such a provision in the document to point to the parties intending it to be a deed.

36 The second matter relied upon by the plaintiff is that the language in the document is formal. Senior counsel points in particular to the execution clause:

In witness whereof the parties hereto have executed this agreement the day and year first hereinbefore written.

37 The use of formal language or 'legalese' is not inconsistent with a document being a simple contract. In 1988 the use of legalese rather than plain English in legal documents was more common that it is today. The use of language such as that found in the 6 June 1988 document was commonly found in simple contracts.

38 The third matter relied upon by senior counsel for the plaintiff is the confidentiality provision in cl 4 of the document. A confidentiality clause does not support the argument that the document is a deed. To the contrary, in Manton v Parabolic Pty Ltd Young J said at 367:

Thus the substantial requirement of a deed is that it be intended by the party who does it to be the most solemn indication to the community that he really means to do what he is doing. That solemn indication is given by sealing a deed which witnesses to what has been done.

The notion of requiring the provisions of an agreement to be kept confidential to the parties is contrary to the usual purpose of a deed.

39 The fourth matter relied upon by the plaintiff is the circumstances surrounding the execution of the document. The plaintiff puts forward evidence that the document was executed at Mr Hancock's house on 6 June 1988. Brian Johnson, who was the Chief Executive of Pennant Holdings Pty Ltd, says in a witness statement:

Immediately after execution of the 6 June 1988 agreement Gordon Freeman made a formal speech. It is my recollection that he said in my presence to Lang Hancock and myself words to the effect that Lang Hancock was a man of vision in his opening up of Eastern European markets and that we now have a contract and can go forward to supply iron ore to Romania and open up a new market to our mutual benefit in Eastern Europe.

40 It may well be that Mr Freeman and other executives of the defendant considered that the making of the contract contained in or constituted by the 6 June 1988 document was important and beneficial for the defendant. But, of course, that says nothing about whether it was intended to operate as a deed or a simple contract. The fact that Mr Freeman expressed that sentiment in a speech at Mr Hancock's house does not establish that the parties intended the document to act as a deed.

41 A fifth matter referred to by counsel is that the agreement is concerned with arrangements to fulfil obligations to a foreign state. That does not point to the document being a deed. Neither the nation of Romania nor any of its agencies is a party to the document.

42 I find that the above matters do not indicate that the parties intended the 6 June 1988 document to be and operate as a deed. The document is a simple contract. There is no seriously arguable case that it is a deed.

43 Acknowledgement by the person liable may extend the limitation period by restarting from the moment of acknowledgement: Limitation Act 1935 s 44(1). The plaintiff says that the defendant acknowledged its liability to the plaintiff. The plaintiff relies upon two documents. The first is a deed described as a deed of novation made on 1 April 1992 between HML, Hancock Resources Ltd (HRL) and the defendant. By that deed HML assigned to HRL all of its right title and interest in and under an agreement executed on 17 May 1989 (the Principal Agreement) and the Rights. The Rights was defined to include accrued rights, claims, damages or interest of HML against the defendant arising from or in respect of any non-performance or breach of, amongst other things, any agreement or obligation of the defendant arising pursuant to or in respect of the 6 June 1988 Agreement. The defendant accepted HRL as a party to the Principal Agreement and consented to the assignment to HRL of HML's rights under the Principal Agreement and the Rights. Further, the defendant covenanted and agreed that to the extent (if at all) any of the Rights constitute a right of recovery of loss or damage suffered by HML, HRL shall be deemed to have suffered the same loss or damage.

44 The second document relied upon by the plaintiff is a deed described as 'Deed of termination 6 June agreement' and made on 17 April 1992 between HML, the defendant and Portman Mining Ltd. Pennant Resources had assigned various interests to Portman. Clause 3 of the deed provided that each of the parties released and discharged each of the other parties from all claims, demands and liabilities arising under or by virtue of the 6 June 1988 Agreement but subject to cl 2.2. Clause 2.2 provided that the termination of the 6 June 1988 Agreement shall not affect the rights or obligations of any of the parties which shall have accrued under the 6 June 1988 Agreement or the Rights referred to in the deed of novation.

45 There is no acknowledgement of a liability if there is no admission by the defendant of its legal liability. Neither the deed of novation or the deed of termination, taken individually or collectively, constitutes or amounts to an acknowledgement by the defendant of a liability to HML or the plaintiff. The effect of the instruments is to do no more than preserve any claims or rights of action which HML might have against the defendant.

Are amendments precluded by Full Court decision?

46 In Commonwealth v Albany Port Authority [2006] WASCA 185 Steytler P and Pullin JA discussed the question whether a party may bring a second interlocutory application seeking the same relief as had been unsuccessfully sought in an earlier interlocutory application. Pullin JA said that he agreed with the observations of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 that it is difficult to propound a general rule suitable for all cases and that it is too extreme to say that no second interlocutory application can be entertained unless there is a change of circumstance or unless evidence is relied on which could not reasonably have been obtained earlier [72]. Pullin JA added that by analogy it may be argued that a judge exercising inherent power may, on his or own motion, set aside a subpoena as an abuse of process when another member of the court has granted leave under O 36 r 12(4). Steytler P said that a superior court has power to review or recall an interlocutory order, perfected or otherwise, by reason of its inherent jurisdiction to regulate or control its own practice and procedures, providing in so doing the court does not interfere with substantive, as opposed to procedural, rights already conferred upon a party [25]. However, his Honour noted that generally speaking courts will not likely vary or set aside orders previously made, at least in the absence of fraud or fresh evidence. The President said when the order under consideration has been made by another judge having like jurisdiction, the judge considering whether or not to vary or discharge it must exercise particular caution not to take on an appellate jurisdiction when none exists [27]. In this case, a single judge is asked to grant leave to make amendments substantially the same as amendments that were refused by the Full Court. Such a power, assuming it exists, should only be exercised in extraordinary circumstances.

47 The plaintiff submits that there are circumstances justifying the granting of leave to make the amendments notwithstanding the decision of the Full Court. The plaintiff says that the current law in Western Australia is that for limitation purposes amendments can be made to a statement of claim if they fall within the ambit of the indorsement on the writ of summons: see Jeffrey v Witherow [2006] WASCA 4; (2006) 31 WAR 236 [36] (McLure JA with whom Steytler P agreed). The plaintiff submits that in Westraint the Full Court incorrectly looked at the statement of claim rather than the indorsement. The plaintiff submits that to the extent that the Full Court directed its attention to the statement of claim rather than the indorsement, the decision should no longer be regarded as good law. In hearing the present re-amendment application the court is bound to apply the law as stated in Jeffrey v Witherow.

48 The principal judgment in Westraint was delivered by Steytler J. His Honour referred to Morgan v Banning (1999) 20 WAR 474 and to the statement in that case by Wheeler J that, if an indorsement on the writ, when issued, is not capable of encompassing amendments sought to be made after the expiry of the limitation period, so that amendments truly add an additional and time barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, where leave to amend is granted or not, the new action remains time barred.

49 Steytler J went on to refer to Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 where a majority of the High Court held that the causes of action on which a plaintiff relies are to be ascertained exclusively by reference to the statement of claim without regard to the indorsement on the writ. His Honour found that the breaches of contract alleged in the proposed amendments relied upon facts additional to those relied upon in respect of the breach pleaded in the then current statement of claim. His Honour found that none of the proposed amendments should have been allowed because more than six years had elapsed since each new cause of action accrued. His Honour said that the mere fact that they are breaches of the same contract as was previously pleaded could not assist the plaintiff.

50 Jeffrey v Witherow was decided by Steytler P and McLure JA. McLure JA delivered the principal judgment. Steytler P agreed with McLure JA. The appellants sought leave to appeal and to appeal from a decision of the primary judge refusing her application to amend her statement of claim in a medical negligence action against the first and second respondents, both of whom are orthopaedic surgeons. The indorsement on the writ is in the following terms:

The plaintiff claims damages, interest and costs for personal injuries suffered by the plaintiff as a result of breach of duty and/or negligence and/or breach of contract by the first defendant and/or the second defendant ... in relation to treatment the plaintiff underwent during the period 11 October 1996 to 10 June 1988.

51 The plaintiff filed a statement of claim which detailed the manner in which the defendants were alleged to have been negligent in her treatment. Subsequently, the plaintiff sought to amend her statement of claim to allege that the defendants were negligent in other respects. The second respondent opposed to the amendment on the grounds that they sought to raise a cause of action that was statute barred. Counsel for the second respondent conceded, correctly in the view of the court, that the appellant's indorsement of claim on the writ was wide enough to encompass the proposed amendments. The second respondent contended that the statement of claim had narrowed the ambit of the indorsement so as to correspond with the ambit of the statement of claim. The proposed amendments did not fall within the causes of action pleaded in the current statement of claim. McLure JA found that the decision of the majority in Renowden could be distinguished on the grounds that the Victorian Rules considered in Renowden were different from the Rules of the Supreme Court of Western Australia. Her Honour said:

The deemed abandonment principle is inextricably linked with O 20 r 2 of the Victorian Rules. The WA Rules are materially different in that they require a connection between the matters pleaded in the statement of claim and the indorsement. The terms of O 20 r 2(2) and (3) are consistent with the analysis and conclusions of the dissentients Barwick CJ and McTiernan J in Renowden at 594 and following. So too is the Full Court analysis and decision in Morgan v Banning (1999) 20 WAR 474. Accordingly, I concluded that the proposed amendments were within the scope of the indorsement and that there had been no deemed abandonment of so much (unspecified) of the indorsement as would exclude them [36].

52 The plaintiff submits that if the Full Court in Westraint had considered whether the proposed amendments fell within the indorsement rather than the then current statement of claim, it would have allowed the amendments. The plaintiff submits that I am bound to apply the law as stated in Jeffrey v Witherow and should allow the amendments notwithstanding the decision of the Full Court.

53 The report of Jeffrey v Witherow discloses that the decision of the Full Court in Westraint was cited in argument. The Full Court decision is not referred to in the judgment of McLure JA. There is no statement in the decision of McLure JA that the decision of the Full Court in Westraint is overruled or wrong. Steytler P agreed with McLure JA without referring to Westraint. Counsel for the defendant submits that the decisions in Jeffrey v Witherow and the Full Court decision in Westraint are to be distinguished on their facts. In Westraint the indorsement is in terms:

The plaintiff claims for breach of an agreement between ... HML ... and the defendant ... made 6 June 1988 whereby the defendant, inter alia, agreed with HML to sell Mt Newman iron ore so as to fulfil the obligations of HML pursuant to a Contract for the supply of iron ore between HML and Mineralimportexport (a body established by the Socialist Republic of Romania) dated 3 November 1986 with all variations and additions thereto and to purchase from HML free into store Pt Hedland three hundred and fifty (350) complete sets of ore wagons at a cost of AUD$26,000,000 the full right, title and interest of HML in such agreement including all rights and remedies arising from any breach thereof having been assigned to the plaintiff with the consent of the defendant by deed dated 1 April 1992.

54 Counsel for the defendant submitted that the statement of claim had identified the breach of contract referred to in the indorsement and thereafter the breach of contract in the indorsement is taken to be that pleaded in the statement of claim. That appears to be a variant of the contention of the second respondent in Jeffrey v Witherow that the statement of claim had narrowed the ambit of the indorsement so as to correspond with the ambit of the statement of claim and this contention was rejected by McLure JA in Jeffrey v Witherow.

55 Steytler P did not say in Jeffrey v Witherow that Westraint was wrong. As a single judge I should follow the decision of the Full Court. The Full Court decided that the amendments then proposed were barred by the Limitation Act. The amendments now proposed are in substance the same. They are barred by the Limitation Act. It is not appropriate to allow the amendments and leave the defendant to plead the Limitation Act in defence. To do so would require the defendant to prepare its case in answer to the new causes of action raised by the proposed amendments. For the reasons I have stated, that would involve substantial expenditure by and prejudice to the defendant. For the same reason, it is not appropriate to permit the plaintiff to plead that the 6 June 1988 document is a deed and allow the issue to be determined at trial.