NOL cOn DLSYRLBUILON S4a IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QLD. G97 of 1984 BETWEEN : VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST) Applicant AND: DOROTEA PTY.LTD. Respondent AND: DOROTEA PTY. LTD. Cross Claimant AND: VANCLEVE PTY. LTD. (as Trustee for the VANCLEVE UNIT TRUST) : Cross Respondent \ r, SPENDER J. RE 2 4NOV 1936 BRISBANE FEDERAL COURT ge < 7 AUSTRALIA Ad 19 NOVEMBER, 1986. Pa pe ticiPaL om . ' EXTEMPORE REASONS FOR JUDGMENT This is an application to amend the defence and cross-claim in proceedings involving representations under the Trade Practices Act 1974. It is necessary to set out some of the history of the matter. The applicant commenced proceedings in the Supreme Court of Queensland by writ number 5160 of 1982 issued on 15 October 1982; on 12 September 1984 the applicant filed the application which commenced these proceedings, and on that day a statement of claim was filed. It appears from that statement of claim in the Federal Court proceedings that the applicant alleged that, prior to the signing of contracts for the purchase of home units, there were representations made by the respondent to the applicant, which representations constituted false and misleading conduct and which induced the applicant to purchase the home units. The statement of claim further pleads that in the premises it was entitled to rescind the contracts, which it claimed lawfully to have done by notices of rescission of 7 September 1982. The application sought a declaration that the three contracts "were rescinded or made void by the applicant on or about 7 September 1982", and sought repayment of deposit moneys or, alternatively, damages pursuant to the Trade Practices Act 1974, or further or other relief pursuant to s.87 of the Trade Practices Act 1974. On 2 October 1984, the respondent filed a notice of motion in this Court seeking that the action be struck out or, alternatively, stayed pending the disposal of the Supreme Court proceedings or, alternatively, that the action be stayed pending the applicant giving an undertaking to discontinue proceedings and to pay the respondent's costs. On 19 October 1984 the Court made various orders. necessary to set out those orders: "The Court orders that:- On the Applicant, through its Counsel, undertaking to discontinue its Supreme Court proceedings and to abide by any order that the Supreme Court makes in relation to costs of those proceedings; 1. The Respondent shall file and serve its Defence and Counterclaim (if any) on oor before 2 November, 1984, 2. The Applicant shall file and serve its Reply (if any) and Defence to any Counterclaim on or before 23 November, 1984. 3. Each party shail give mutual discovery of documents on or before 14 December, 1984 and that inspection take place on or before 25 January, 1985. 4. Each party shall have liberty to administer Interrogatories for the interrogation of the other party on or before 1 February, 1985, and that the answers to such Interrogatories be filed and served on or before 15 February, 1985. 5. On or before 4pm on 22 February the solicitor for each party certify by letter to the Registrar of the Court that all interlocutory steps required by the above orders have been completed and that the matter is otherwise in all respects ready for trial; that Counsel who are to conduct the trial for such party have read the pleadings and are satisfied that they are in final form and are satisfied with the pleadings of each other party; that advices on evidence have been obtained from Counsel and complied with and that all necessary witnesses are available enclosing with such certificate their respective estimates as to how long the trial of the matter will take and specifying any dates which will be suitable. 6. The Respondent shall pay the costs of the proceedings of 3 October, 1984 to be taxed. 7. The costs of today's proceedings are reserved. those It is The effect of those directions and orders was that the matter ought to have been ready for trial in February of 1985. What in fact occurred was an amended statement of claim was filed on 17 October 1984, a defence and cross-claim was filed on 9 November 1984, an amended defence and cross-claim was filed on 13 November 1985, and the applicant, by notice of motion filed on 28 October 1986, sought further to amend that defence and cross-claim by, in essence, pleading that the limitation provisions apply to these proceedings. Essentially, the assertion is that any relief under s.82(1), or under s.87(1), or 87(1A) of the Trade Practices Act 1974, accrued more than three years prior to the date of commencing of this action. That plea was open to the respondent to plead in the defence which was filed in this Court on 9 November 1984; that is to say, what the respondent seeks to plead by amendment was available to it when the defence was first filed in these proceedings. The Supreme Court proceedings were discontinued on 17 December 1984 and, pursuant to the order of Master Weld in that regard, an order was made that the applicant pay the respondent's costs from 27 December 1983, as taxed. Those costs have been taxed and paid by the applicant. So far as the Federal Court proceedings are concerned, it is fair to say that there has been a quite cavalier disregard of the directions which were given on 19 October 1984. In an affidavit sworn on behalf of the respondent it is said that interlocutory steps have not been finalized; that interrogatories were in fact delivered on 29 August 1986 for the examination of the respondent, which have not been answered, and that there is a present uncertainty as to whether full discovery has been made. In Pamela Carlotta Byers & Ors. v. Dorotea Pty. Ltd. & Ors. (unreported, 8 October 1986), a similar problem was considered by Mr. Justice Pincus and, in the circumstances that obtained in that case, which are not the same as here, Pincus J. declined to grant the application for leave to amend to raise the limitation defence. That application to amend was made the very eve of the hearing of the trial of that action, and the order that was made by the Federal Court concerning the discontinuance of Supreme Court proceedings was made by consent. It was made by consent on 11 February 1985 - that is to say, after the order that I have made in October 1984 in this present matter. In that case, his Honour concluded:- "The matter seems to me to be quite finely balanced, and I have no confidence as to what is the appropriate way in which to exercise my discretion." I might say that that attitude fairly reflects my present state of mind but, if it were possible, the present matter is even more finely poised. Counsel for the applicant on the motion says that there is no reason why the amendment should not be permitted because costs are sufficient to cure any possible prejudice that may be occasioned by the late amendment. Were it not for the circumstance of the Supreme Court proceedings, and the manner in which the matter was dealt with very early in its life in the Federal Court, there would be much to be said for the view that the amendment should be allowed, notwithstanding the very late stage at which it is brought. I accept that the amendment sought, being one relying on the limitation period, does not fall to be considered on a different basis from any other amendment. In this particular case, the question of limitation was said not to be adverted to by the respondent at any time up until the recent past. In all probability, this point would not have arisen if the trial had occurred in 1985. Had it been referred to in late 1984 and, indeed, if it had been pleaded when the defence was delivered in November 1984, what the applicant would then have done is a matter of some speculation. I am satisfied that, by not having had the opportunity to consider what ought properly to be done in the light of that pleading at that time, it has suffered, or may very well have suffered prejudice that cannot be compensated by costs. If the applicant is to recommence in the Supreme Court, I am not satisfied that there would not be some delay between now and a time the matters in the Supreme Court are heard. At least five years extra delay to the applicant will have been occasioned if it chooses to re-commence in the Supreme Court. That length of time, in my opinion, is pregnant with prejudice, although many of the difficulties are imponderable. As I have frankly confessed, how properly the discretion should be exercised in the peculiar circumstances of this case Py has very much troubled me, but I think on balance, in the light of the history of the matter, particularly what occurred in late 1984, I ought not to allow the amendment, and for those reasons the motion is dismissed. I certify that ths co . 3 G6 hopltarg Pages are a truc copy of tne rcacons jor judgment herein of His Honour Mr. Justice Spender CSasmeanr Associate Dated 19/I1f%