Bates, Michael John t/as Riot Wetsuits v Omareef Pty Ltd t/as Quiksilver Wetsuits & Ors [1997] FCA 778

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 230 of 1994 ) GENERAL DIVISION )

BETWEEN: MICHAEL JOHN BATES T/AS RIOT WETSUITS

Applicant

AND: OMAREEF PTY LTD (ACN 004 010 806) TRADING AS QUIKSILVER WETSUITS

First Respondent

QUIKSILVER GARMENTS PTY LTD (ACN 005 575 548)

Second Respondent

JOHN ERIC HOWITT

Third Respondent

BRUCE ERNEST RAYMOND

Fourth Respondent

THOMAS VICTOR CARROLL

Fifth Respondent

RODNEY ALLAN BROOKS

Sixth Respondent

ALISTAIR (ALSO KNOWN AS ZOC) ZORICA

Seventh Respondent

BRUCE ANDREW EDWARDS

Eight Respondent

JUDGE(S): EMMETT J PLACE: SYDNEY DATED: 30 JULY 1997

EX TEMPORE REASONS FOR JUDGMENT The applicant has today made an application for leave to amend the statement of claim to include a count in trespass. That application was opposed by the respondents. The pleadings as at April 1995 included a claim in trespass. The third amended statement of claim, which was filed on 27 September 1994, contained, in paragraphs 117 and following, counts in trespass to land, trespass to goods and inducement to breach of contract. While the amendment now sought to be made is different as a matter of language the substance of the claim is the same as that pleaded in the earlier statement of claim. In support of his application the applicant has said that the decision to abandon the earlier trespass claim was made on the advice of his counsel, Mr Rodney Freeman. The evidence from the applicant was that the advice he received was that it was desirable to delete the claim in trespass in order to streamline the proceedings and keep the case manageable. The applicant said that he understood that advice and acceded to the wishes of his counsel. He also says that he has a clear recollection of requesting Mr Freeman to consider the option of re-pleading trespass on a number of occasions but on each occasion his advice was that that was not desirable. The applicant also said that he raised the matter in December 1995 with new legal advisers who then represented him and apparently the advice was the same. The fourth amended statement of claim, filed on 24 April 1995, abandoned the claim in trespass and, since then, the respondents have been to conduct the case, and their counsel says that they have in fact prepared the case on the basis that there is no claim in trespass. The possibility of an amendment was not raised until late last week after the hearing had been on foot for some four days. Senior counsel for the respondents did not refer to any specific prejudice other than the need to speak again to witnesses who have already sworn affidavits and also to speak to at least one witness who has not sworn an affidavit in relation to the matters which are the subject of the proposed claim in trespass. It is clear that witnesses intended to be called by the respondents have already deposed to the circumstances which are now said to give rise to trespass. However, those affidavits were filed at a time when there was no claim in trespass. It is possible that different questions might have been put to the witnesses as to what occurred and it may well be that on being asked further questions, with the notion of trespass and exemplary damages for trespass in mind, some further evidence would be elicited. It seems to me that it is unfair to the respondents at this stage to put them to the inconvenience and expense and possible disadvantage of having to revisit matters which have been the subject of evidence now for 18 months or more. The applicant was unable to indicate any specific new advice or justification for his decision to resile from the position which he took as at April 1995 other than comments which I made in the course of the proceedings last week. By any comment, I made I was not intending to indicate that I thought that there was or was not a good cause of action in relation to trespass, although I did make the observation that, if there was a claim in trespass there may well be scope for exemplary damages. That comment was made in response to an observation made by senior counsel for the respondents that exemplary damages would not normally be allowable in relation to breach of contract. Whether they are or not is something about which I express no view at the moment. That is a matter for argument at the end of the proceedings. There is nothing before me to suggest that there was in fact any actual loss occasioned by the alleged trespass other than would be compensable by an award in damages if a breach of contract is shown to have occurred. It is not suggested, as I understand it, that any property of the applicant was taken on the occasion in question but that the respondents re-took possession of property which belonged to them in the nature of raw materials. That may nevertheless be a trespass. That is one of the issues which I will have to determine, namely, whether or not the seizure of items by the respondents was a breach of contract under the terms of the contract which it is common ground, at least to some extent, existed between the parties. The applicant was entitled to possession of the raw materials so long as the contract was on foot and it may be that the question of whether or not a trespass to that possession occurred would depend upon the outcome of the proceedings. In all the circumstances I do not consider that a case has been made out for granting leave to amend to include a count for a cause of action which was consciously and with advice abandoned in April 1995. Accordingly, I reject the application.