IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 93 of 1985 GENERAL DIVISION BETWEEN : MAFUBI PTY. LIMITED Applicant AND: WESTFIELD LIMITED Respondent 29 JULY 1985 REASONS FOR JUDGMENT LOCKHART J. This case was specially fixed for hearing to commence today by consent of the parties. When the matter was called on for hearing this morning counsel for the applicant moved ona notice of motion filed on 25 July 1985 seeking, so far as presently relevant, orders that: 1. The applicant have leave to join as respondent to the proceedings Foto [Island (NSW) Pty. Limited and Ephrain Landes; 2. The applicant have leave to amend the statement of claim and application; 3. The date for h®aring these proceedings on 29 July 1985 he vacated; and faust, -f ren erp ret we otter oe be 'oa wee wet cone — B) ere yng coo otee ee wqas-e we we 2. 4, The evidence of any witness proposed to be called on behalf of the applicant at the hearing who is unwilling to give evidence by affidavit may be given orally in court. It is common ground that, if the application to amend the statement of claim and the application is acceded to, the hearing could not, for all practical purposes, proceed today. The order that is sought in relation to the calling of witnesses who may be unwilling to give evidence by affidavit is, perhaps, unnecessary. It arises from the form of the orders made by consent by this Court on 30 May 1985 which were in quite usual form. The intent of those orders, as I read them, is that the evidence of the witnesses on both sides in this case should be primarily by affidavit, subject, of course, to cross-examination. It was clearly not the intent of that order to exclude the right of a party to call a witness to give viva voce evidence in chief because plainly there are circumstances when witnesses will not volunteer affidavits and they cannot, of course, be forced to swear them. In these situations, the only course that can be taken for all practical purposes is to have the witnesses give their evidence in chief from the witness box. But even if the order sought is not strictly necessary it is not opposed. In these circumstances I think the most appropriate course for me is to simply not make the order. I turn next tO the application to amend the statement of clain. The case was commenced by the filing of an application on 1 eee yg 3. May 1985 and a statement of claim was filed that game day. In essence that last mentioned document alleges that a shop in the Westfield Shoppingtown Hurstville was leased by the respondent to the applicant by a registered lease dated 5 December 1980. This lease was fora term of five years, to expire on 7 September 1985. The stdtement of claim then asserts that prior to the execution of the lease, which is identified as being in or about July 1980, the respondent by its servants or agent represented to the applicant that subject to the applicant paying the rent for the premises the applicant would be granted another lease for a term of five years. Then it is said that, acting on the faith of the representation, the applicant executed the lease and spent substantial sums of money on fitting out the shop. Other allegations are then made in the statement of claim to which I need not refer; but it is said that in all the circumstances the respondent has engaged in conduct that is misleading or deceptive within the meaning of s. 52 of the Trade Practices Act 1974 and has made false or misleading statements in contravention of s. 53(g) of the Trade Practices Act and has made false or misleading statements in contravention of para. 53A(1)(b) of that Act. Wide relief is sought, including orders under s. 87. The statement of claim which the applicant now seeks to file raises a case that is, in my opinion, materially different from the case as presently pleadéd. Indeed it is not disputed that it raises very different issues. What is said in essence by counsel for the 7 7 ar ar — "a TES peop woe | | 4. applicant is that, notwithstanding the difference between the case as it is and the case that is sought to he pleaded, there are common elements of law and of fact and that much of the evidence that would be given to support the case as presently pleaded would also be given to support the proposed new case. The case that it is proposed to make is, in substance, that prior to the execution of the lease in 1980 from the respondent to the applicant, the respondent by its servants or agent represented to the applicant that: (a) the respondent then had and for a number of years had had a policy or practice that it would not include in any lease of a retail specialty shop in any of its shopping centres an option to renew the lease but would, upon expiry of the lease, renew the lease for a further term as a matter of course if the lessee had been a good tenant, had traded well and had paid rent under the lease on time; and (b) if the applicant had been a good tenant, had traded well and had paid rent under the lease on time, the respondent would in accordance with that policy or practice and as a matter of course grant to the applicant, if it so requested, upon expiry of the lease a new lease of the premises for a further 5 year term. "tt qr. a> bet ana tal ~ It is sought to allege in para. 7 of the proposed statement of claim that each of the representations to which I have referred was misleading or deceptive in that: (a) the respondent did not have at the time the representations were made and had not had prior thereto any policy or practice to the effect alleged; (b) the respondent had at all material times reserved to itself a complete discretion whether or not to renewa lease for a further term regardless of whether or not the lessee thereunder had performed his obligations under the lease; and (c) the respondent failed to inform the applicant at the time the representations were made of the discretion to which I have just referred in paragraph (b) and that, if the applicant performed its obligations under the lease, it could not on the expiration thereof expect the grant of a new lease for a further term of 5 years as a matter of course. However, the proposed pleading then alleges in essence that the representations made by the respondent to the applicant were made in pursuance of a course of conduct engaged in by the respondent in relation to all shopping centres owned and managed by it throughout Australia prior to andvat the time of the representations to the applicant wherein the respondent, knowing that such representations were false or misleading or deceptive: : . ape yes eee cee te Is oY Fae prem see nae el (a) (b) (c) made to prospective lessees of speciality shop premises in shopping centres owned or managed by the respondent, representations to the same or similar effect as those alleged in paras. 6{a) and (b) of the pleading; instructed the servants and agents of the respondent to make the representations aforesaid in the course of negotiations with prospective lessees of the premises; and permitted the servants and agents of the respondent to make representations as aforesaid in the course of negotiations with prospective lessees of the premises in order to induce the prospective lessee to enter into leases of specialty shop premises within shopping centres owned and managed by the respondent which did not contain express options to renew upon expiry of the terms granted thereunder. It is then sought to be alleged in para. 9 that at the time the respondent made the representations to which I have referred, it knew or ought to have known that the applicant would rely upon their truth and accuracy in determining whether to enter into the lease. The pleading then proceeds to cover matters to which I need not refer, except those in relation to a proposal to join Foto Island (NSW) Pty. Limited as a third party. I shali deal with that later as a separate matter. sataeal worl Sos i adel a -- ate 2. wf ye ay hy ewre= ews rend OE 7. . In my opinion the case which is presently propounded by the applicant is one where it is said that the respondent made a representation to the applicant from which the respondent has, in the events pleaded, departed. The case which it is proposed to propound is a case of the respondent ' falsely representing that it has a policy in relation to leasing which, in fact, the respondent at no material time ever had. There are affidavits before the Court which supports the case as presently pleaded and, so far as I can discern at this stage of the matter, do not support the case that it is proposed to propound. Long Innes J. in Levy v. Norton-Culhane (1928) 28 S.R. (N.S.W.) 302, said, at pp. 305-306, in respect of an application under the Equity Rules of 1902 of the Supreme Court of New South Wales for a decree on admissions of fact made by the plaintiff and a consequent application for leave to amend the statement of claim: "Speaking generally I think it is correct to say that an application for leave to amend will asa general rule be granted in cases where the applicant is not acting male fide and where it can be granted without injustice to the other' party." ~ After reference to certain authorities, his Honour continued: - "But the rule is subject to the exception that the amendment will be refused which will change the suit into a suit of a substantially different character and raise issues which can be more conveniently tried in another suit." t . erie eee ee een, rte pe ee = a w - — — Maas dint voy, Pod In my opinion the proposed amendment would, if allowed, fashion the present proceeding into one which is substantially different in character and raise issues which may be tried more conveniently in other proceedings between the parties. I am conscious, of course, of the provisions of Order 13 rule 2 of this Court's Rules which are, as the rule itself states, designed to allow necessary amendments to pleadings for the purpose of determining the real questions in issue between the parties and to avoid multiplicity of proceedings. I am also aware of the fact that there may be some common elements in the case as presently pleaded with the case that would exist if the proposed amendments were to be allowed. I turn then to certain other matters bearing on discretion. The case is one which has proceeded fairly rapidly from its institution to "trial. It has been the subject of various directions by the Court, s0 far as I can discern always with consent, and timetables were laid down by the Court with the consent of the parties for the filing of affidavits, pleadings, and carrying out the various interlocutory processes that are customary in cases of this nature. Also as is customary, regrettably, the timetables have not been adhered to but, nevertheless, on 27 June 1985 the trial was fixed to commence today on the application of both parties. Indeed, on 18 July 1985 the solicitor for the applicant informed the Court that there should be no bar to the 'case proceeding today. What has happened is, and counsel for the applicant has frankly informed me, that there has | cole re Span eae ae ee - - vw. rT - tat ae Seam, a eee v Wyo —t1. ow 9. - been a change in fairly recent times. Senior and junior counsel appearing for the applicant have, with the benefit of fresh minds, turned their attention to the case and decided that in the interests of their client the case should be fashioned substantially differently to its present forn. The argument has been submitted by counsel for the respondent that the statement of claim, even if allowed would not be in proper form, that it has certain internal inconsistencies, and that it lacks particularity in relation to most material allegations, including those mentioned in para. 8 of the statement of claim. I need not determine those matters because they would probably be capable of being cured by 'the applicant. I prefer to rest my decision on other grounds including the ones to which I have already adverted. I turn, however, to a different aspect of the matter, namely, that it is apparent from what has been said from the bar table and from my examination of the pleadings and other documents to which I have been referred, that the premises the subject of these proceedings are already the subject of a lease from the respondent to Foto Island (NSW) Pty. Limited, which apparently changed its name to its present form from Basid Holdings Pty. Limited. It appears that this lease is for 5 years to commence immediately upon the expiration of the lease in suit, that is, on 8 September 1985. Foto Island (NSW) Pty. Limited is not a party to the proceeding but it is & company which the applicant seeks to have Joined. re Worascccors — 10. There is no doubt in my mind that substantial prejudice would be sustained by the respondent and by Foto Island (NSW) Pty. Limited if the amendments sought were permitted, if only because the parties have by their conduct thus far demonstrated the desirability of this case being disposed of before the lease from the respondent to Foto Island (N.S.W.) Pty. Limited commences to operate, and it is obvious that, if the application before me today succeeds, it will be well after that date before this litigation concludes. I am mindful that notwithstanding what I have said, the issues in the present case and the rights of appeal that exist may cause this litigation to be unresolved by the dates 7 and 8 September 1985. Some attempt was made in argument on behalf of the applicant to suggest that it is not its fault that it comes so late in the day to seek the proposed amendment to the pleadings; but I am satisfied, having heard the argument from counsel for both parties that, notwithstanding the direction of the Court on 30 May 1985 that the applicant file all affidavits on which it proposes to rely on or before 20 June 1985, those temporal constraints were not met. Indeed, an affidavit of Mr. B.J. Rowles sworn on 17 June 1985 was not filed until 18 July 1985, some one month after the date fixed. Much of what is said in the affidavit of Mr. Rowles generated a sheaf of affidavits from the respondent in response thereto which, in turn, has a bearing upon the application for amendment made today by counsel for the applicant. Perey eT Te asl pon mer matne aes ll. I therefore decline to grant the proposed application for leave to amend the statement of claim save insofar as the matter to which I am about to turn. It is sought, as I said, by the applicant to joinas a respondent Foto Island (NSW) Pty. Limited and I have already briefly described the role performed by this company in the relevant events. On the assumption that the case were to proceed as presently pleaded, I can see difficulties in the Court hearing the matter without the presence of that company as a party, and I think the desirable course is that that company be joined. Counsel for the respondent has informed the court that he has instructions to, if necessary, appear for that company, and I am conscious of the fact that the defence filed on 7 June 1985 pleads in paragraph 4 that the subject premises were leased to Basid Holdings Pty. Limited without notice of any rights the applicants may claim to have to continued occupation of the premises. The lease to Basid Holdings Pty. Limited is to commence on 8 September 1985 and to subsist for a term of 5 years. It seems to me that all parties have had knowledge for some considerable time of the basic issue in this case relating to the leasing to Foto Island (NSW) Pty. Limited of the shop premises. Therefore, I propose to refuse the application for leave to amend the statement of claim, but to allow the applicant to join Foto Island (NSW) Pty. Limited as a respondent. 7" cert, enie-menaammeaaet apie . wt ete _ - we 12. I should mention now that the applicant 'seeks also to join Ephraim Landes as a respondent. Little has been said about that application in argument. It seems, so far as I can glean it from the material, that Mr. Landes is sought to be joined as a person involved in the alleged contravention pursuant to s. 75B of the Trade Practices Act. I am not satisfied at this stage that he is a person who should be joined. In the light of what I have said I will invite counsel to make any further submissions they wish on the future conduct of the proceeding. 1 certdy that this and the cloen (1) preceding pases are a true copy of the Reasons for duegmert herein of his Honour -i wera ae oe