JUDGMENT, No. Qh Zl. Factor CATCHWORDS Practice and procedure - amendments to statement of claim having effect of joining individuals as respondents - nature and limits of Court's jurisdiction under 0.6 1.8 Federal Court Rules - grant of leave to join discretionary - factors weighing on exercise of Court's discretion - weight to be attached to delay in applying to join at advanced state of proceedings - whether joinder for an ulterior purpose - application to amend to raise alternative and inconsistent allegations - when allowable. 0.6 r.8 Federal Court Rules CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. v WHITE INDUSTRIES L . No. G198 of 1986 Ryan J 25 May 1988 Brisbane N RECTED t as ee . IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No. G198 of 1986 ) ) GENERAL DIVISION BETWEEN: CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (Applicant) WHITE INDUSTRIES (QLD) TY. MITED (Respondent ) is WHITE INDUSTRIES (QLD) PTY. CINTTED (First Cross-claimant) CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (First Cross-respondent) Coram: Ryan J Date: 25 May 1988 Place: Brisbane MINUTES OF ORDER . THE COURT ORDERS THAT: 1. Caboolture Park have leave to amend further its amended statement of claim filed herein on 2 March 1987 by - (a) substituting for the words "on the morning of 10th September 1985" appearing in paragraph 7(b) thereof the words "on the morning of or about 10th and 11th September 1985" we NOTE: -2- (b) inserting in paragraph 6 thereof additional sub-paragraphs (ca), (cb), (cc), (ed) and (ce) in conformity with the sub-paragraphs respectively so designated in the draft amended statement of claim which is exhibit A to the affidavit of Robert Maxwell Lockhart sworn 4 May 1988 and filed herein (c) inserting in lieu of the particulars sub-joined to paragraph 15 thereof amended particulars in conformity with those sub-joined to paragraph 15 of the draft amended statement of claim which is exhibit A to the said affidavit of Robert Maxwell Lockhart. Within ten days of this day WIQ, if so advised, file and serve an amended defence to the statement of claim as further amended pursuant to paragraph 1 of this order. Caboolture Park pay WIQ's costs of and incidental to the motion on notice dated 9 May 1988 and any costs thrown away by reason of the further amendment of the statement of claim pursuant to paragraph 1 of this order, such costs to be taxed in default of agreement. Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules. w IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No. G198 of 1986 ) GENERAL DIVISION ) BETWEEN: CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (Applicant) AND: WHITE INDUSTRIES (QLD) PTY. LIMITED (Respondent ) AND: WHITE INDUSTRIES (QLD) PTY. MITED (First Cross-claimant) AND: CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. (First Cross—-respondent ) Coram: Ryan J Date: 25 May 1988 Place: Brisbane REASONS FOR JUDGMENT ON APPLICATION J DITI RESPONDENTS AND FURTHER AMEND STATEMENT OF CLAIM By motion on notice dated 9 May 1988, the applicant, Caboolture Park Shopping Centre Pty. Ltd. ("Caboolture Park"), has applied for leave to amend further its amended statement of claim to conform with a draft further amended statement of claim exhibited to an affidavit sworn 9 May 1987 by Robert Maxwell Lockhart of Caboolture Park's solicitors. That draft statement of claim includes the names of three additional respondents, John Dugan, Alan Anderson and Brian Dempster (in -2- the draft called respectively "the second third and fourth respondents"). The draft incorporates statements alleging that "insofar as the matters pleaded in the statement of claim constitute a contravention(s) of a provision of Part V of the Trade Practices Act 1974 (as amended) by the First Respondent each of the Second, Third and Fourth Respondents is a person who: (a) aided, abetted, counselled or procured such contravention; (b) induced such contravention; (c) has been knowingly concerned in or party to the contravention; and (d) conspired with the other Respondents to effect the contravention." Caboolture Park's notice of motion does not embody an application under 0.6 r.8 for an order that Messrs Dugan, Anderson and Dempster be added as respondents. However, the parties have accepted that the application for leave to amend the statement of claim raises the question of whether' those proposed additional respondents should be joined. Counsel for Caboolture Park and the existing first respondent, White Industries (Qld) Pty. Limited ("WIQ"), have each addressed all the argument they wish to that question which I now proceed to decide. Order 6 r.8 provides: . (1) Where a person who is not a party- (a) ought to have been joined as a party; or -3- (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, the Court, on application by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding." The application of the corresponding rule in other jurisdictions to attempts by existing defendants to add other defendants, or by intervenors to be added as defendants against the wishes of plaintiffs, has thrown up serious difficulties of construction going to the limits of the Court's jurisdiction under the rule. The authorities in which those difficulties have been examined or illustrated were comprehensively examined by Devlin J (as he then was) in Amon v_ Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357. However, it seems reasonably clear that where an applicant or plaintiff, after issue of the proceedings, wishes to join another respondent or defendant and the cause of action against that respondent or defendant involves questions of law or of fact which are common with those raised in the existing pleadings, there is jurisdiction under the rule to allow the joinder. (See Amon v Raphael Tuck & Sons Ltd. (supra at 886, Sharp v McGivney [1951] v.L.R. 143, Birtles v The Commonwealth [1960] V.R. 247, Black v_ Houghton [1968] Qd.R. 179 and Qantas Airways Ltd v_ AF Little Pty Ltd 1981) 2 N.S.W.L.R. 34). It is also clear that the Court has a very wide discretion in the exercise of the jurisdiction conferred by the rule. Thus, in John Cooke & Co. Proprietary Ltd. v_ The Commonwealth (1922) 31 C.L.R. 394, Knox C.J., Gavan Duffy and Starke JJ observed at 411: "These rules are practically the same as_ the English Judicature Rules, Order XvVl., r.11, and Order xXxV., £.5; and they undoubtedly give the Court very wide powers. But they are discretionary in their nature. (See Wilson, Sons & Co. v. Balcarres Brook Steamship Co. Industrial Bank v. Britis an or oreign rade Ltd. TISZ1) ZA.C., TE." See also White v_ London Transport [1971] 2 Q.B. 721 at 727. The practice books suggest that this discretion will be exercised in favour of the plaintiff or applicant on terms that he pay the costs of, and thrown away by reason of, the joinder of the additional defendant; see Williams, Supreme Court Practice - Victoria, 2nd Edn. p. 1236 and The Supreme Court Practice (The White Book) 1988, Vol. 1, p. 184. However, in the authority cited in both of those works in support of that proposition, Edwards v Lowther (1876) 45 L.J.C.P. 437 there is no express reference to costs. The background against which the discretion has to be exercised in the present case includes the fact that the proceedings were instituted on 22 December 1986. By the statement of claim which accompanied its application, Caboolture Park referred to a written building contract made on 9 October 1985 between itself and WIQ, a term of which was that- "the consideration for the aforesaid construction was set as a target contract sum of $13,375,000 subject to the provisions of the aforesaid agreement." -5- It was further alleged by paragraphs 4 to 15 of the original statement of claim that:- " 4. In or about the month of September, 1985 and prior to the making of the aforesaid agreement negotiations were carried on between IAN BENNETT, ARTHUR BRIGGS and GEORGE HERSCU on behalf of the Applicant and each of: (a) John Dugan; (b) Alan Anderson; and (c) Brian Dempster. 5. The said JOHN DUGAN, ALAN ANDERSON and BRIAN DEMPSTER; (a) were at all material times servants or agents of the Respondent; (b) acted, at all material times and in all material respects as servants or agents within the scope of their authority; (c) alternatively, acted, at all material times, with the consent or agreement (whether express or implied) of a director, agent or servant of the Respondent. 6. During the course of the negotiations the representatives, servants or agents of the Applicant and Respondent discussed the target contract sum. 7. During the course of the negotiations and prior to the making of the said agreement the aforesaid JOHN DUGAN, ALAN ANDERSON and BRIAN DEMPSTER represented to the applicant that: (a) the agreed target contract sum of $13,375,000.00 or a sum very close thereto was attainable; (b) the target contract sum or a sum very close thereto represented and was the attainable total cost of construction; (c) the Respondent was capable of and undertook to achieve a total construction cost consistent with the amount of the target sum or a sum very close thereto. 10. 12. ~6- By making the representations referred to in Paragraph 7 hereof the said JOHN DUGAN, ALAN ANDERSON and BRIAN DEMPSTER impliedly represented that: (a) they, or the Respondent, through its other servants or agents, knew of facts, matters or circumstances which justified the making of such representations; (b) the Respondent, by its servants or agents possessed sufficient and requisite skill, competence and experience so as to have properly considered and assessed an appropriate target contract sum and total construction cost; By virtue of the matters alleged in Paragraph 5 hereof the making of the said representations and implied representations referred to in Paragraphs 7 and 8 hereof constituted conduct engaged in by the Respondent. The making of the representations and implied representations by the Respondent was: (a) conduct engaged in in the course of trade or commerce; (b) conduct engaged in that was misleading or deceptive or likely to mislead or to deceive. Further and alternatively the making of the said representations and implied representations was negligent and the Respondent, by its servants and agents including but not exclusively the said JOHN DUGAN, ALAN ANDERSON and SRIAN DEMPSTER: (a) had no reasonable basis for making the said representations and implied representations, and (b) knew that the Applicant intended to and would rely upon such representations in entering into the said agreement. Further and alternatively the representations referred to in Paragraphs 7 and 8 hereof were made fraudulently in that they were made with knowledge that they were false, or without knowledge that they were true or with reckless indifference as to their truth or falsity. 13. Induced by and in reliance upon the truth and faith of the said representations the Applicant entered into the aforesaid agreement. 14. The Respondents have demanded payment of the sum of Nineteen million six hundred and sixty eight thousand six hundred and eight dollars ($19,668,608.00) and have ceased and suspended construction work. 15. In the premises the Applicant has suffered loss and damage as a result of the conduct of the respondent." An amended statement of claim filed on 25 February 1987 contained revised allegations of what was said by Messrs Dugan, Anderson and Dempster in the course of the negotiations referred to in paragraph 7 of the original statement of claim and subjoined extensive and detailed particulars to those revised allegations. In addition, in the amended statement of claim paragraph 10(b) was expanded to specify the respects in which the conduct relied on was alleged to be misleading or deceptive, and the allegations of negligence and fraud were recast. On 3 March 1987 a further amended statement of claim was filed on behalf of Caboolture Park incorporating particulars, also detailed and extensive, of the negligence and fraud and of the damages alleged in the amended statement of claim. On 24 April 1987 WIQ filed an amended defence to Caboolture Park's further amended statement of claim together with a cross-claim for §$5,162,552.87 being the balance allegedly due to it from Caboolture Park under the building contract. Both Caboolture Park and WIQ have taken several interlocutory steps in the proceedings including mutual discovery of documents and the delivery by WIQ of a request for further and better particulars of the further amended statement of claim and interrogatories for the examination of Caboolture Park. (On 22 April 1988, I ordered that further and better answers be supplied to some of those interrogatories.) Between 14 March 1988 and 8 April 1988 I also made orders for the joinder as respondents of some twelve sub-contractors to WIQ who have claims against WIQ or both it and Caboolture Park in respect of work done and materials supplied in connection with the construction of the shopping centre. The joinder of most of those sub-contractors was sought by Caboolture Park but supported by WIQ. I have also given detailed directions for the completion of interlocutory steps and the separate trial of all questions and issues between Caboolture Park and WIQ which pertain to the sub-contract of, or the performance by, each sub-contractor in and about the construction of the shopping centre. The hearing of the first of those separate trials has been fixed to commence on 14 June 1988, and the last has been appointed to commence not before 25 August 1988. Mr Lockhart has deposed in his affidavit in support of the motion for leave to make further amendments to the statement of claim that:- 3. The amendments seek to join John Dugan, Alan Anderson and Brian Dempster who on my instructions were employees of the Respondent in September, 1985 as parties to the action pursuant to Part vV of the Trade Practices Act. The amendments result from certain instructions received by me during the course of taking statements for the preparation of affidavits to be filed by the Applicant pursuant to the order made herein by the 8th day of April, 1988." -9- By way of indicating more specifically the matters which have emerged from the further instructions to which Mr Lockhart deposed, Mr Perry of Counsel, who appeared for Caboolture Park on the motion, referred to certain further and better particulars supplied by Caboolture Park to WIQ which contained the following sub-paragraph:- "(e) at the time of the meeting referred to in paragraphs 7 and 8&8 of the further amended statement of claim and at the time of making of the written agreement referred to in paragraph 2 of the further amended statement of claim, the First Respondent held quotes in respect of the work to be done, the lowest of which were higher than the figures furnished by the First Respondent to the Applicant in the course of the negotiations and which were higher than the amounts allowed for in the written agreement. Particulars are as follows:- ITEM SUBCONTRACTOR LOWEST FIGURE SUM NO IN TRADE QUOTE FURNISHED ALLOWED IN CONTRACT HELD IN WRITTEN NEGOTIATIONS AGREEMENT 7 Formworker 1,850,000 1,350,000 1,275,000 12 Structural Steel 990,000 550,000 550,000 14 Alunainium windows and glazing 229,000 144,000 125,000 18 Roof and Roof Plumber 325,592 300,000 300,000 33 Lifts 395,000 390,000 350,000 It was submitted that the particulars there given were of a consistent and deliberate understatement by WIQ of quotations which it had received from various sub-contractors, and that by participating in that conduct the three individuals now sought - 10 - to be joined as respondents came within the ambit of s.79 of the Trade Practices Act. Mr Perry further indicated that:- "the purpose of joining the individuals is to bring their particular actions with respect to those sub-contractors trade packages within the purview of the court, and within the reach perhaps of my client in an interlocutory way. That is, it would allow the proper examination of what appears on its face to be a deliberate understating. It would also be open, of course, to the applicant to add such further particulars of the alleged breach of section 79 as would emerge from discovery against those parties and, perhaps, interrogation of those parties." In ay view it would be an inappropriate exercise of the Court's discretion to order that Messrs Dugan, Anderson and Dempster be added as respondents at this stage of the proceedings. Mr Perry has urged that the allegations against the proposed additional respondents do not impinge on the matters involved in the separate trials of the sub-contractors' issues which will occupy the Court until almost the end of August 1988. However, the resolution of those sub-contractors' issues has a necessary impact on the quantification of the damages which the proposed additional respondents may become liable to pay if Caboolture Park succeeds against them. Accordingly, they will be entitled, if so advised, to participate as fully as WIQ itself in the litigation of the sub-contractors' issues. The Court cannot, for the purposes of the present motion, assume that the proposed additional respondents will be represented by the same counsel and solicitors as WIQ. If they are not, counsel and solicitors retained by them will need time to become acquainted with the mass of documents and factual - 112 - material to which the existing parties have had access as a result of interlocutory steps which are now substantially completed. The proposed additional respondents would almost certainly seek, and would prima facie be entitled to, further and better particulars of the allegations against then. The almost inevitable consequences of affording the proposed additional respondents even a strictly limited time to familiarise their legal advisers with the litigation, and take the minimum number of interlocutory steps open to them would be to delay the commencement of the trials of the sub-contractors' issues to the considerable inconvenience and detriment of WIQ, the cross-claiming sub-contractors and the Court itself. At least equally significant is the consideration that on 8 April 1988 I gave directions that on 7 June next Counsel for Caboolture Park should open its case on its claims against WIQ and indicate the construction which Caboolture Park contends should be given to any relevant contractual document. It was further directed that, at the conclusion of Caboolture Park's opening, Counsel for WIQ should open its defence to Caboolture Park's claims against it and its own cross-claim, and similarly indicate its construction of relevant contractual documents. There were also interlocutory directions to ensure that those openings are given against a background of affidavits embodying the evidence-in-chief to be adduced by each of Caboolture Park and WIQ and a common book of documents. In giving reasons for those directions on 4 May 1988, I observed, at p. 5, that:- "On the other hand, I considered that there was real force in the suggestion implicit in the submissions on behalf of wWIQ that the detail of the sub-contractors' claims should not be allowed -12- to obscure the general issues between the two principal protagonists in this litigation. I also regard it as highly desirable for the Court to have a full and clear understanding of those issues and the way in which they impinge upon, and are affected by, the sub-contractors' issues before it embarks on the separate trials of those issues. Accordingly, I directed the filing and service between Caboolture Park and WIQ, before the commencement of the trial of the action, of affidavits embodying the evidence-in-chief of each of them in respect of what have been called the general issues between them, i.e. all issues other than those pertaining to the sub-contract of, or the performance of, work by one or other of the sub-contractors which have been joined as respondents. For similar reasons, I directed that before the commencement of the first of the separate trials, counsel for each of Caboolture Park and WIQ should make an address opening their respective cases on the general issues between them, and indicating the construction which they respectively contend should be given to any relevant contractual document." It follows that, if the joinder of Messrs Dugan, Anderson and Dempster were allowed and the statement of claim were amended to include allegations that they aided and abetted, and conspired in, contraventions by WIQ of Part V of the Trade Practices Act, those added respondents would have an interest similar to that of WIQ in having what I have called "the general issues" exposed by opening addresses before the commencement of the separate trials of the sub-contractors' issues. The added respondents, accordingly, would have to be afforded a full and fair opportunity for informed participation (if so advised by separate counsel and solicitors) in the hearings at which those opening addresses are to be made. To give them that opportunity now would inevitably set back the date on which the substantive hearing could commence and would further postpone the determination of this litigation which has already been on foot for almost eighteen months. -13- I have also been influenced in the exercise of the discretion reposed in the Court by 0.6 r.8, by the consideration that the bulk of Caboolture Park's claim for damages under the fTrade_ Practices Act has been set up in extinction or diminution of WIQ's claim for over $5 million as the balance due under the building contract. That consideration was urged by Senior Counsel for Caboolture Park, and weighed with me, when WIQ applied for an order that Caboolture Park provide security for WIQ's costs of the application. In giving judgment on that application on 4 May 1988, I observed at p. 11 of the reasons:- "On the other hand, I have been influenced in exercising my discretion in the way which I have indicated by the fact that WIQ has cross-claimed for $5,162,552.87 being the balance allegedly due to it as head contractor to Caboolture Park. Most if not all of Caboolture Park's claims under s.52 of the Trade Practices Act, and in negligence and Fraudulent misrepresentation, could be raised by way of defence to that cross-claim which will apparently be persisted in even if Caboolture Park's action be stayed pending provision of security for costs. In that respect, this case is similar to, although by no means identical with, cases in which courts have declined to require security from a plaintiff whose position in substance can be assimilated to that of a defendant." As I pointed out in the same judgment it would be undesirable, assuming that I could, to express even a tentative view on the respective prospects of success for Caboolture Park on its claim for damages under the Trade Practices Act, or for WIQ on:its claim for a balance allegedly due under the building contract. However there is nothing on the material before me to suggest that WIQ would be unable to satisfy a judgment for any net amount which may ultimately be found due from it to -14- Caboolture Park thereby compelling that company to have recourse to the fruits of a judgment against Messrs Dugan, Anderson and Dempster under 8.79 of the Trade Practices Act. If Caboolture Park desires to preserve the possibility of such recourse to the proposed additional respondents, it Temains open to it to institute separate proceedings against them. Of course, that may involve some duplication of evidence and some risk of inconsistent findings which would be avoided if the application for joinder were allowed and the proposed additional respondents were to participate fully in the existing proceedings. However, those detriments can be minimized by directions that any separate application against Messrs Dugan, Anderson and Dempster be partly heard together with the present proceedings if interlocutory steps in the later application are completed in time to permit that expedient. Indeed, the respondents to the later application may be persuaded on certain terms to agree to be bound by some findings to be made in the present litigation. In any event, the prior resolution of issues arising herein may well reduce the time needed for, and the costs involved in, a determination of the later litigation. If, as Mr Perry suggested, one reason for Caboolture Park's motion to join the additional respondents is to make them compellable to give discovery and furnish answers to interrogatories to Caboolture Park, that does not incline me to accede to the motion. I have been referred to no authority suggesting that joinder is available for a purpose of that kind which appears to be ulterior to that contemplated by 0.6 r.8. -~ 15 - Moreover, Mr Perry conceded, when pressed, that the need to interrogate the proposed additional respondents could not be assessed until they had filed affidavits containing their evidence-in-chief, similar to those which Caboolture Park and WIQ have already been ordered to file. The conclusion which I have reached on how to exercise the Court's discretion on this aspect of the motion has been reinforced by the recollection that the part played by Messrs Dugan, Anderson and Dempster as employees or agents of WIQ was known to and pleaded by the draftsman of Caboolture Park's original statement of claim filed on 22 December 1986. It may be that sufficient information to particularize the precise representations in which it is now desired to allege they were involved only became available after full discovery had been provided by WIQ. However, there is no material to indicate that such information did not become available before the end of April 1988. Nor has it been explained why that information, whenever it became available, induced Caboolture Park to resile from what I presume was its initial decision not to join Messrs Dugan, Anderson and Dempster at the outset. For all of these reasons I decline now to order that' the proposed additional respondents be joined as parties to the present proceedings, so as to entitle them, at least prima facie, to the same scope for participation as parties already on the-record. I am not unmindful of the provisions of 0.6 c.6, but, as already indicated, I consider it more appropriate to allow Caboolture Park, if it wishes, to institute a separate application against the individual proposed respondents. After - 16 - that has been done, 0.29 1.5 may be invoked if the circumstances at some time warrant that course. As well as seeking by its motion to join the proposed additional respondents, Caboolture Park has sought leave to insert two more sub-paragraphs in paragraph 7 of its further amended statement of claim. In its present form that paragraph is as follows:- "7. During the course of the negotiations and prior to the making of the said agreement - (a) at a meeting between the said Ian Bennett, Arthur Briggs and George Herscu on behalf of the Applicant and the said John Dugan, Alan Anderson and 8Srian Dempster on behalf of the Respondent at the offices of Hersfield Development Corporation Pty. Ltd. at 520 Collins Street, Melbourne in the State of Victoria on the morning of 27th August, 1985, the said Alan Anderson, on behalf of the Respondent, informed the Applicant's said representatives that the Respondent had the contacts, purchasing power and experience to achieve the right price; (b) at a further meeting between the said Ian Bennett and Arthur Briggs on behalf of the Applicant and the said John Dugan, Alan Anderson and Brian Dempster on behalf of the Respondent at the said offices of Hersfield Developments Corporation Pty. Ltd. on the morning of 10th September 1985, the Respondent's said representatives offered to enter into the said agreement on the basis that it make provision for a 'target' contract sum of $13,375,000.00, and represented to the Applicant's said representatives that:- (i) although the cost of individual items comprised in the said sum of $13,375,000.00 may increase or reduce in the course of performance of the said contract, the ultimate price ought to be very close to the said sum of $13,375,000.00; and -17- (ii) the Respondent had the expertise and ability to perform the agreement for the said 'target' sum." The sub-paragraphs which it is desired to add are:- "(iii) further, or in the alternative, in respect of each of the various items contained in the said sum of $13,375,000.00 the amounts allowed therefore were attainable and would be attained by the First Respondent or alternatively, a sum close to each such allowed amount would be attained; (iv) alternatively, with the exception of the provisional items (lifts, mechanical, electrical, fire protection and landscaping) the amounts of allowed therefor would be attained by the First Respondent or alternatively a sum close to each sum allowed would be attained by the First Respondent." Additionally, leave has been sought to substitute the words "on the morning of or about 10th and llth September 1985" for the words "on the morning of 10th September 1985" in paragraph 7(b) of the existing statement of claim. Mr Fraser of Counsel for WIQ has opposed the grant of leave to make each of the amendments to which I have just referred. He contended first that the amendments were inconsistent with sworn answers to interrogatories delivered on behalf of WIQ for the examination of Caboolture Park. However, in my view, the Court, on an application to amend a pleading, should generally not concern itself with the truth or otherwise of new or different allegations which a party desires to make. If those allegations are contradicted by statements in affidavits filed on behalf of that party, it must be taken to accept the risk that the discrepancies will be pointed up at the trial as - 18 - militating against the credit of the deponent concerned and perhaps of its whole case. Accordingly, I grant leave to amend paragraph 7(b) of the existing statement of claim by inserting in lieu of the words "on the morning of the 10th September", the words "on or about 10th and 11th September". A more fundamental question is raised by the application to insert the proposed sub-paragraphs (iii) and (iv) in paragraph 7(b) of the existing statement of claim. To the extent that those additional sub-paragraphs allege representations which are alternative to those in the existing sub-paragraphs (i) and (ii) they are inconsistent therewith. In addition, the alternatives expressed in the body of each of the proposed new sub-paragraphs (iii) and (iv) create internal inconsistencies in the respective sub-paragraphs in which they occur. Finally, the two alternatives embodied in the draft sub-paragraph (iv) are both inconsistent with each of the representations pleaded in the alternative in the proposed sub-paragraph (iii). It is a general rule of pleading of some antiquity that a pleading must not be in the alternative. (See e.g. Chitty on Pleading 7th Edn., Vol. I, p. 260 and Stephen's Principles of Pleading 7th Edn., p. 343 where the learned author's third rule of pleading is stated to be that "pleadings should not be hypothetical, or in the alternative". The rule has been relaxed somewhat by more recent authority so that in Bullen & Leake's Precedents of Pleadings 12th Edn. the following observation occurs at p. 41:- - 19 - "gither party may in a proper case include in his pleading alternative and inconsistent allegations of material facts, as long as he does 60 separately and distinctly. Thus, the plaintiff£ may plead two or more inconsistent sets of material facts and claim relief thereunder in the alternative and he may rely upon several different rights alternatively, although they may be inconsistent. Whenever alternative cases are alleged, the facts relating to such cases should be stated separately and should not be mixed up, so as to show on what specific facts each alternative head of relief is claimed." It also seems that the rule is applied less strictly to the pleading of a defence in respect of which Thesiger L.J. pointed out in Berdan v Greenwood (1878) 3 Ex. D. 251 at 255 that a defendant may "raise by his statement of defence without leave, as many distinct and separate, and therefore inconsistent, defences as he may think proper". I consider the old rule as thus mitigated to be preserved in the requirement of 0.11 1.16 of the Rules of this Court that a pleading shall not have a tendency to cause prejudice, embarrassment or delay in the proceeding. In my view the vice in the inconsistent allegations in the proposed additional sub-paragraphs (iii) and (iv) is that they do not allege alternative cases in such a way that the facts constituting each are stated separately. Rather alternative statements of fact are mixed up in an allegation of a single representation. The actual facts constituting the representation must be presumed to be within the knowledge of Caboolture Park and it would be embarrassing to permit two inconsistent formulations of the sane representation to stand. (See e.g. Brailsford v Tobie (1889) 10 A.L.T. 194.) - 20 - Accordingly, I refuse leave to insert the proposed additional sub-paragraphs (iii) and (iv). That refusal is without prejudice to the right of Caboolture Park to seek leave to amend the existing paragraph 7 of its statement of claim to conform with the version of the representation appearing in the affidavits embodying its evidence-in-chief which I directed on 8 April 1988 should be filed and served by Caboolture Park. In giving particulars of its claim for damages in the existing statement of claim, Caboolture Park has proceeded from the premise that, but for the representations allegedly made by WIQ, it would have entered into a contract for the erection of the shopping centre for a fixed sum of $14,800,000. Leave is sought by the present motion to propound two additional alternative bases for the calculation of damages. The first of those alternatives proceeds from the premise that, had it not entered into the agreement with WIQ, Caboolture Park could have erected the shopping centre itself at a cost of approximately $14,800,000. The second alternative formulation of the claim for damages is founded on the assertion that, had it not entered into the agreement with WIQ, Caboolture Park would have sold at a net profit of approximately $12,000,000 the land on which the shopping centre was later erected. wrQ has also opposed the application to insert these alternative formulations of Caboolture Park's claim for damages. In doing so, it has pointed to the need for it to obtain further and better particulars of the new formulations and further discovery, and has suggested that the amendments may have the effect of further delaying the commencement of the - 21 - substantive hearing, and perhaps the determination of the whole of this litigation. However, I consider that any further interlocutory steps which may be necessitated by the reformulated claims for damages can be taken without undue inconvenience to WIQ while the separate trials of the sub-contractors' issues are proceeding. It may also be appropriate at a later stage of the proceedings to order separate trials on the questions of whether WIQ is liable in damages at alli to Caboolture Park, and, if so, what is the appropriate measure of damages and in what amount they should be assessed. That possibility holds out a prospect that the additional costs and time which would be expended as a_ result of Caboolture Park's proposed alternative formulations of its claim for damages can be avoided or kept to a minimum. Accordingly, I propose to allow the amendment which has been sought of the particulars sub-joined to paragraph 15 of the existing amended statement of clain. Caboolture Park has also sought to amend further its existing amended statement of claim by inserting four additional sub-paragraphs (ca), (cb), (cc), (cd) and (ce) in paragraph 8 thereof. Those amendments have not been opposed by WIQ and I shall allow then. In the result, therefore, the order on Caboolture Park's notice of motion shall be:- 1. That Caboolture Park have leave to amend further its amended statement of claim filed herein on 2 March 1987 by - - 22 - (a) substituting for the words "on the morning of 10th September 1985" appearing in paragraph 7(b) thereof the words "on the morning of or about 10th and lith September 1985" (b) inserting in paragraph 8 thereof additional sub-paragraphs (ca), (cb), (ec), (cd) and (ce) in conformity with the sub-paragraphs respectively 50 designated in the draft amended statement of claim which is exhibit A to the affidavit of Robert Maxwell Lockhart sworn 4 May 1988 and filed herein (c) inserting in lieu of the particulars sub-joined to paragraph 15 thereof amended particulars in conformity with those sub-joined to paragraph 15 of the draft amended statement of claim which is exhibit A to the said affidavit of Robert Maxwell Lockhart. That within ten days of this day WIQ, if so advised, file and serve an amended defence to the statement of claim as further amended pursuant to paragraph 1 of this order. - 23 - That Caboolture Park pay WIQ's costs of and incidental to the motion on notice dated 9 May 1988 and any costs thrown away by reason of the further amendment of the statement of claim pursuant to paragraph 1 of this order, such costs to be taxed in default of agreement. I certify that this and preceding twenty-two (22) Mr Justice Ryan. TY Vara ak Associate Dated: 7S Yay, 'Pe+ pages are a true copy of the Reasons for Judgment herein of his Honour