Ad CATCHWORODS PRACTICE - amendment - Supreme Court action - Court - former discontinued by consent later suit in Federal - no time point then taken - attempt to plead limitation at trial after considerable delay - exercise of discretion. Trade Practices Act, 1974 s.82(2) Pamela Carlotta Byers and Hugh Kirkpatrick Byers & Ors. v. Dorotea Pty. Ltd. QLD G151 of 1984 PINCUS J. BRISBANE 8 October 1986 wr pak = 3 NOV 1986 FEDERAL COURT OF AUSTRALIA PRINCIPAL @ERISTRY IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G151 of 1984 GENERAL DIVISION ) BETWEEN: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS First Applicants AND: CHERYL ANN BYERS Second Applicant AND: BYERS HOLDINGS PTY. LTD. Third Applicant AND: DOROTEA PTY. LTD. Respondent AND: DOROTEA PTY. LTD. Cross-Claimant AND: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS First Cross-Respondent AND: CHERYL ANN BYERS Second Cross-Respondent AND: BYERS HOLDINGS PTY. LTD. Third Cross-Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 8 October 1986 WHERE MADE: Brisbane THE COURT ORDERS THAT: The application for leave to amend the defence and counter-claim be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G151 of 1984 GENERAL DIVISION ) BETWEEN: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS First Applicants AND: CHERYL ANN BYERS Second Applicant AND: BYERS HOLDINGS PTY. LTD. Third Applicant AND: DOROTEA PTY. LTD. Respondent AND: DOROTEA PTY. LTD, Cross-Claimant AND: PAMELA CARLOTTA BYERS AND HUGH KIRKPATRICK BYERS First Cross-Respondent AND: CHERYL ANN BYERS Second Cross-Respondent AND: BYERS HOLDINGS PTY. LTD. Third Cross-Respondent PINCUS J. 8 OCTOBER 1986 EX TEMPORE REASONS FOR JUDGMENT This is an application to amend a defence and counter-claim in proceedings in respect of purchases of home units. The first litigation relating to the matters took place in the Supreme Court. Each side instituted proceedngs in that court early in 1983, and a number of steps were taken in those proceedings, although the cases did not, apparently, reach the stage of being set down for hearing. On 17 December 1984 the present applicants instituted proceedings here, seeking relief in respect of the three contracts in question in the Supreme Court cases, which contracts were entered into in August 1981. They asked that the money they paid under the contracts be returned. A statement of claim was delivered on the same day, which alleged that the contracts I have mentioned were induced by representations which were false and fraudulent. The way in which the jurisdicton of this court was invoked was, of course, by an allegation in the terms of s.52 of the Trade Practices Act. The tactic, if I can use that expression, of instituting a suit in this Court while similar proceedings in the Supreme Court are pending is sometimes availed of simply to induce delay. Presumably that was not so here, because, by consent of the parties ina hearing before Spender J. on 11 February 1985, it was agreed that the Supreme Court proceedings would be discontinued and the proceedings here would go ahead, and a consent order was made to give effect to that. On that day Spender J. also gave directions, including that a defence be filed by 25 February 1985. That was done, and it was accompanied by a cross-claim which presumably raised matters similar to those which had been alleged by the respondent in its Supreme Court proceedings. The application now seeks to amend that defence, which was, of course, filed some considerable time ago, by adding a plea that the cause of action accrued more than three years prior to the date of commencement of the proceedings, and it is sought to rely upon s.82(2) of the Trade Practices Act. After the defence was filed, there were further proceedings in the Supreme Court, in March 1985, to give effect to the agreement of the parties, and that court gave leave to discontinue the Supreme Court proceedings. Mr. Harrison Q.C., who appeared with Mr. Sheahan for the applicants, does not assert that the applicants would necessarily have taken a different course had the time point been raised by the respondent in its initial defence. It may be difficult to determine precisely what would have happened in that event, but it seems to me improbable that the applicants would not have sought to avoid the result which has now ensued: that they are faced with an attempt to raise the time point against then. Reading the transcript of the proceedings before Spender J., I have noted that Mr. Frew, who then appeared for the applicants, said, amongst other things, referring to a similar case which his Honour had heard: "You made an order, I understand, and I was not in the Vancleve matter, but Mr. Griffin of counsel was in the matter, and he has also appeared for the applicants in this matter, and the order was, I understand, that the applicant was to discontinue the Supreme Court proceedings and comply with any order for costs made in that court, and that the Federal Court proceedings then proceed. The respondent has consented to that." Mr. Sheehy, who appeared for the respondent before Spender J., replied: "This 1s a consent order based, as I understand it, on the same understanding, that these proceedings in some respect are similar to the other proceedings, so that rather than seeking orders from yourself as such, the parties have by consent agreed to these." Mr. Lennon Q.C., who appears with Mr. Newton for the respondent, says, no doubt accurately, that the point was not then thought of. The same must have been assumed to be' so when the defence was filed on 25 February. Thereafter, there were further Pleadings; discovery took place, and supplemental discovery; solicitors were changed in February 1986, and there was an application made in May 1986 with respect to the pleadings, which was dealt with by Spender J. The matter was, some little time ago, set down for today, 8 October, which is a date approximately 20 months after the proceedings in which Spender J. made the consent order discussed above. Counsel have referred me to a number of authorities relevant to that question of whether an amendment should be allowed in these circumstances. The case which Mr. Harrison Q.C. relies upon strongly is the decision of Pickford J. in Aronson v. Liverpool Corporation £1913] XXIX T.L.R. 325. That, without setting out the facts in detail, demonstrates an attitude against allowing such amendments, even when not made at the last moment, which is stricter, in my view, than that commonly taken at the present day. It may be that, in general, amendments are more freely allowed at present than they used be. I have been told by both counsel that the matter is in my discretion, and I agree that 1t is, but I have had some difficulty in determining how to exercise that discretion. I must say that the too ready allowance of amendments at the very beginning of a trial can have some 111 effects other than with respect to costs. It 18 not perhaps a matter which need concern the parties to the case, but it seems to me plain from this experience and many others that if, as a matter of routine, important amendments are allowed late, it reduces the pressure upon the lawyers, if I may say so with respect, to ensure that the issues which they want to raise are raised in due time. Here it is unclear, in my view, whether the applicants will suffer any prejudice other than one curable by an order for costs if the amendment 1s allowed. For one thing, it seems unclear whether the plea would be a good one. For another, no one could say at this stage whether a timely raising of the defence would have produced the result that the agreement, to stop the proceedings which each party had instituted in the Supreme Court and litigate here instead, would have broken down. Certainly, it seems likely that, had the time point been raised when the defence was filed, the applicants would, of necessity, have had to seriously consider going back to Spender J. to be released from their undertaking, because at least the spirit of the matter seems to have been that the proceedings here would be continued. The suggestion which is made by senior counsel for the respondent is that the appropriate orders for costs can cover any loss the applicants may have sustained by the proceedings having been continued for the best part of two years through various interlocutory phases, and presumably it is possible that this Court could aiso deal with a rather more awkward problem, and that is the costs which the applicants were ordered to pay in the Supreme Court when they discontinued in pursuance of the consent order, those costs undoubtedly being fairly substantial. The suggestion made by counsel for the respondent that the whole matter can be corrected if the applicants start up again in the Supreme Court 1s not one I find very attractive, but I can see that the respondent reaches a favourable tactical position if, particularly at the last moment, it is able to confront the applicants with the dilemma of determining whether to go ahead with this case or try to start again in the Supreme Court. The matter seems to me to be quite finely balanced, and I have no confidence as to what 1s the appropriate way in which to exercise my discretion. I must say, however, that if there are cases in which it is appropriate to refuse a late amendment raising the time point, this would seem to be one. The statement of claim plainly sets out - and, of course, it must already have been known to the parties - that the contracts were made in 1981 at a time more than three years before the institution of these proceedings, although admittedly other matters which could conceivably give rise to a cause of action are pleaded as having taken place within the three years. Mr. Lennon Q.C. very fairly does not contend that the attempt to raise the three-year limit is inspired by the recent decision of the High Court in Sent v. Jet Corporation, decided on 16 June 1986 and reported in 66 A.L.R. 73, although that case improves, perhaps, his prospects of resisting the claim insofar as it is for relief under s.87. I think that the Court should refuse the late amendment, in all the circumstances. The attitudes of the parties, as explained to me, and my overall impressions of the matter, from the very candid submissions which have been made, are such that the allowance of the amendment at this stage would not, I think, be just, and I refuse the application. ? certify that this andthe 6 preceding F-79s ara a true copy of the reasons for JUa-ment herein of His Honour Mr Justice Pincus JY ter hoyowe Associate Dated @ Gelaker , 986