FEDERAL COURT OF AUSTRALIA Council of the City of Sydney v Goldspar Australia Pty Limited [2003] FCA 1194 COUNCIL OF THE CITY OF SYDNEY v GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) and DOUGLAS RAWSON-HARRIS N 728 OF 2002 GYLES J 21 OCTOBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N728 OF 2002 BETWEEN: COUNCIL OF THE CITY OF SYDNEY APPLICANT AND: GOLDSPAR AUSTRALIA PTY LIMITED FIRST RESPONDENT DOUGLAS RAWSON-HARRIS SECOND RESPONDENT JUDGE: GYLES J DATE: 21 OCTOBER 2003 PLACE: SYDNEY REASONS FOR RULING 1 Counsel for the respondents has sought an amendment to the defence and cross-claim. It was flagged on 7 October, at least in a preliminary form, it having been apparently provided to the applicant a little earlier. The actual proposed pleadings were handed up on 20 October, drafts having been provided to the applicant in advance. I had ruled earlier that all evidence to be brought forward in support of the case needed to be filed and that was done. The application has required consideration of that evidence and certain other evidence which has been tendered by both parties, together with an understanding by me of what has happened since the matter has been in my docket. No evidence has been led expressly explaining why the application is made at this time or otherwise justifying the delay. I do not propose to set out the pleadings, the proposed amendments, a complete history of the proceedings or all of the arguments of the parties. I was not referred to authorities which are, in any event, well known. I will indicate the factors which, having considered all of the arguments, have weighed upon me. 2 First, I do not think that the application to amend was precluded by the separate question determined last year and the procedure which related to it. The separate question was, in my opinion, related only to construction of the contract. That determination did not involve any acceptance of the validity or continuing effect of the contract for all purposes. Next, I am satisfied that there is a sufficient factual basis disclosed to raise issues for trial on the proposed pleadings assuming, without deciding, that those issues are open as a matter of law. 3 The new issues amount to a belated and significant change in strategy on the part of the respondents with serious consequences for the disposition of the case, unexplained by any evidence. I am not satisfied that the amendment sought by the applicant was any real cause of this application apart from providing an available occasion for it. The issues in question arose between the parties directly in March 2000 with the first respondent's responses to the notice to show cause and with a termination notice. Proceedings raising those issues were commenced by the first respondent in the Supreme Court of New South Wales in May 2000, but were discontinued with leave of that Court, over opposition from the present applicant, in August 2000. 4 I am satisfied that the applicant could not reasonably meet the new issues during the period fixed for the current hearing. I am satisfied that it is likely that the new issues would involve considerable preparation on the part of the applicant and some days, if not weeks, of evidence and submissions to resolve, even if restricted to the defence or if the issue of damages were hived off from the cross-claim. The grant of the amendments would thus necessitate an adjournment. If the case is adjourned, my docket commitments and leave arrangements are such that it is likely to be a lengthy period before the case could be concluded and a judgment given, possibly even until 2005. As I have given judgment on a separate question and heard a body of the evidence, it would be undesirable to transfer the case to another docket. 5 The principal focus of this proceeding is what can loosely be called intellectual property in certain types of street pole which has continuing commercial significance. It is highly desirable that a proceeding to settle such a live question be determined promptly. This consideration led to the hearing and determination of separate questions. This proceeding has been on foot since July 2002. Interlocutory relief has been granted but that underlines rather than solves commercial uncertainty. In any event, that relief has been granted on the basis of an undertaking as to damages. 6 Last minute changes to the schedule of a docket have implications for other litigants which should not be overlooked. The case should have finished at this hearing but if the amendment is granted will take up time which should be occupied for the hearing of other cases. It is the second time that this has occurred this year. If granted, the amendments would create practical dilemmas as to the future progress of the case. For example, do I go on and make the most of the time available and then adjourn? Should I go on and decide particular parts of the case? Should there be an attempt to determine issues which do not depend upon factual resolution of the new issues including any demurrer questions about those issues? Those courses or a combination of them give rise to the difficulties of split trials, split issues and giving judgment far removed in time from the giving of evidence. The practical determination of the factual issues may ultimately prove to have been unnecessary in various events. 7 There are great difficulties in assessing the real costs thrown away by the adjournment. There are too many permutations and combinations. I am not satisfied that an order for an immediate assessment of those costs is realistic. On the other hand it is certain that the applicant will have to incur considerable costs in preparing for and then in contesting the issues. 8 I must be mindful, of course, that the principal objective of the court must be to determine all issues that properly arise between the parties if that can be done without injustice. I must also bear in mind the effect of possible Anshun estoppels upon the respondents. 9 With these problems and dilemmas in mind I have decided that I will not permit the amendments unless: 1. I am fully satisfied by evidence as to the reasons for the delay in raising them. 2. I am satisfied that the new grounds have a sufficient practical chance of success in law if a factual basis were established for them. 3 The applicant would not be liable upon the undertaking as to damages for the period of delay occasioned by the amendments. 4. The applicant is properly secured for costs which might be thrown away by the amendments. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 28 October 2003 Counsel for the Applicant: RJ Ellicott QC, DB Studdy Solicitor for the Applicant: PricewaterhouseCoopers Legal Counsel for the First and Second Respondents: JV Nicholas SC, D Robertson Solicitor for the First and Second Respondents: Michael Osborne & Associates Date of Ruling: 21 October 2003