FEDERAL COURT OF AUSTRALIA Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2001] FCA 662 SYDNEY MARKETS LTD v SYDNEY FLOWER MARKET PTY LTD N 178 of 2000 HELY J 23 APRIL 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 178 OF 2000 BETWEEN: SYDNEY MARKETS LTD APPLICANT AND: SYDNEY FLOWER MARKET PTY LTD RESPONDENT JUDGE: HELY J DATE OF ORDER: 23 APRIL 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the applicants to file an Amended Statement of Claim. 2. The applicant pay the costs of the respondent which have been thrown away as a result of the adjournment application, and the costs of and incidental to the amendment of the Statement of Claim. Those costs should be paid on an indemnity basis. However, it is not appropriate that an order be made for immediate taxation of costs. 3. The matter be re-listed for hearing from 10-14 December 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 178 OF 2000 BETWEEN: SYDNEY MARKETS LTD APPLICANT AND: SYDNEY FLOWER MARKET PTY LTD RESPONDENT JUDGE: HELY J DATE: 23 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These proceedings commenced by an application filed on 6 March 2000. There have been numerous directions hearings in the meantime, as a result of which the matter was fixed for hearing scheduled to commence today and to last for a period of five days. 2 On Thursday 12 April before Easter and Tuesday 17 April after Easter, the applicant notified the respondent of its desire to file an Amended Statement of Claim. The Amended Statement of Claim built in part upon facts which were alleged in the reply to the respondent's cross-claim, but in a not insignificant part it sought to make a new and different case. The case as originally pleaded was that the applicant had a reputation in the name Sydney Flower Market. The new case is that it has a reputation and goodwill in the name Sydney Markets, which is infringed by the respondent's use of the name Sydney Flower Market Pty Ltd. 3 No evidence was put before me as to why it was only in the week prior to the scheduled date for hearing that this amendment was foreshadowed, but it seems reasonably obvious, and I am prepared to infer that counsel took a different view of the way in which the applicant's case should be presented than the view previously taken. 4 I think it is most unfortunate that cases fixed for hearing should be abandoned at the last minute, with the obvious waste of public resources and private time and resources that is involved. Mr McDougall, with commendable and customary frankness, says that he cannot point to any prejudice which his client would suffer by reason of the late amendment which cannot be overcome by an order for the adjournment of the proceedings and the making of an appropriate costs order. It seems to me that in those circumstances I am constrained by the decision of the High Court in State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 to grant the amendment sought. 5 Mr McDougall has filed an affidavit of Katrina Margaret Frances Raymond of 20 April 2001, which points to evidence which the respondent would have sought to marshal had it been aware of the new case which the applicant now seeks to bring. It seems to me that it would have been unreasonable to expect Mr McDougall's client to investigate whether it can gather that evidence in the few working days that were available after notification of the proposed amendment. I think that the interests of justice demand that he should have a reasonable time to investigate whether he can get evidence of the type foreshadowed, and if he can, to put it together. 6 Therefore, I would only grant the leave to amend on the basis that the further hearing of the proceedings be adjourned for a sufficient period to enable that evidence to be put on. I am told that would be of the order of a couple of months. It seems to me that is a reasonable estimation of the time involved, and my own commitments are such that I could not list the matter for hearing prior to October of this year. 7 There is then the question of costs. Mr Catterns submits that I ought not to make any order for costs at this stage, if only because I will be better informed on that topic when I see what evidence, if any, the respondents lodge in opposition to the Amended Claim. There is, I think, some force in that submission, but it seems to me that even if it ends up that the respondents lodge no evidence in opposition to the amended claim, the lateness of the amendment application is the cause of the matter not proceeding, and the respondent is at least entitled to a reasonable period within which to investigate whether it can procure evidence of the type it foreshadows. 8 Whilst I feel obliged to grant the adjournment application, if there were any prejudice to the respondent, then my attitude would be quite different. I think that anything less than an indemnity costs order would occasion prejudice to the respondent through an occurrence which is no fault of the respondent, and which lies entirely at the door of the applicant. In those circumstances, I propose to make an order that the applicant pay the costs of the respondent which have been thrown away as a result of the adjournment application and the costs of and incidental to the amendment. Those costs should be paid on an indemnity basis. 9 It is not appropriate that an order be made for immediate taxation of costs as the matter will be heard later this year, and there is at least the possibility of further interlocutory costs orders arising in that time. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 5 June 2001 Counsel for the Applicant: D K Catterns QC with J R Baird Solicitor for the Applicant: Griffith Hack Counsel for the Respondent: R McDougall QC with S Ivansoff Solicitor for the Respondent: Henry Davis York Date of Hearing: 23 April 2001 Date of Judgment: 23 April 2001