Waratah Quest P/L v. Scania Australia P/L [1994] FCA 987

- . JUDGMENT NO, send Sead OE

F DISTRI IN

FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NG 818 of 1993 GENERAL DIVISION

BETWEEN:

WARATAH QUEST PTY LIMITED Applicant

AND:

SCANIA AUSTRALIA PTY LIMITED

Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY 16 DEC 1994

DATE: 6 DECEMBER, 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY

REASONS FOR JUDGMENT

HIS HONOUR: There is an application before me by Mr Cutler on behalf of the respondent to amend the amended defence. The application is that the amended defence be further amended by the following plea: "the applicant has failed to mitigate its loss of income, loss of profit and loss of use of profit as claimed in paragraph 26 of the amended statement of claim".

Mr Maconachie QC who appears with Miss Foord for the applicant has resisted the application to amend. He pointed out in earlier argument on the application that it would be necessary for the respondent to particularise the claim by way of alleged failure to mitigate loss in order for the applicant to

be able to meet that claim.

In further argument, Mr Cutler indicated that he would wish to

-2- particularise the plea by reference to matters which he frankly acknowledged were not in evidence or canvassed by the evidence. This was subject to one exception that I shall mention in a moment. In relation to the, as yet unparticularised matters that go beyond the evidence, it seems to me that leave to amend ought not to be granted. Indeed, it is very difficult to see how the application can be proceeded with without the particulars of alleged failure to mitigate

loss being provided.

Only when that is done can it be seen whether further evidence is required and what effect the gathering of that evidence might have, if any, upon the conduct of the litigation. In view of Mr Cutler's frank acknowledgment on that part of the application to amend, it seems to me that leave to raise those