Pacific National (ACT) Limited (ACN 48 052 134 362) v Queensland Rail (ABN 47 564 947 264) [2005] FCA 959

FEDERAL COURT OF AUSTRALIA

Pacific National (ACT) Limited (ACN 48 052 134 362)v Queensland Rail (ABN 47 564 947 264) [2005] FCA 959 practice and procedure – leave sought to amend defence and cross claim – whether responsive - whether open on the pleadings PACIFIC NATIONAL (ACT) LIMITED (ACN 48 052 134 362) V QUEENSLAND RAIL (ABN 47 564 947 264) N 690 of 2003 JACOBSON J 11 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 690 of 2003

BETWEEN: PACIFIC NATIONAL (ACT) LIMITED

(ACN 48 052 134 362)

APPLICANT/CROSS-RESPONDENT

AND: QUEENSLAND RAIL

(ABN 47 564 947 264)

RESPONDENT/CROSS-CLAIMANT

JUDGE: JACOBSON J

DATE OF ORDER: 11 JULY2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave is granted to amend the Second Further Amended Defence and Cross Claim as contained in the Third Further Amended Defence and Cross Claim.

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 690 of 2003

BETWEEN: PACIFIC NATIONAL (ACT) LIMITED

(ACN 48 052 134 362)

APPLICANT/CROSS-RESPONDENT

AND: QUEENSLAND RAIL

(ABN 47 564 947 264)

RESPONDENT/CROSS-CLAIMANT

JUDGE: JACOBSON J

DATE: 11 JULY2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Kelly, counsel for the respondent, seeks leave to file a third further amended defence and cross claim. He did not concede that leave was necessary but he took this course because Mr Leopold, counsel for the applicant, submitted that a number of the paragraphs were not responsive to the fourth further amended statement of claim. 2 The third further amended statement of claim pleaded what was called "the capacity issue" in [73A] - [73D] ("the capacity claim"). Paragraph 73C pleaded that the current average utilisation of the Acacia Ridge terminal was 90 per cent, and particulars were given which included the statement that the total intermodal throughput for 2003 comprised approximately 218,000 twenty foot equivalent units ("TEUs") and 244,000 TEUs for 2004. The third further amended statement of claim pleaded in [73D] that the capacity of the Acacia Ridge terminal would be reduced if the terminal was operated as a multi-user facility by anyone other than Pacific National ("PN"). 3 In the second further amended defence Queensland Rail ("QR") denied the allegations in [73C] and [73D] of the third further amended statement of claim. It said that the current management of the terminal was inefficient and it particularised in [70C] 11 reasons why this was so. The particulars included the claim that staff were underutilised during some shifts, that there was a lack of discipline exercised over the acceptance of pre-received containers and that storage of containers was limited to stacking one or two high when containers could have been stacked three high. 4 In its fourth further amended statement of claim PN has deleted [73A] – [73D]. It continues to plead the claim of operational detriment. In [62(c)], PN pleads that it will suffer substantial operational detriment to its integrated national systems when compared with the level of business and profits it would have if QR adheres to the assumptions pleaded in the statement of claim. In [68(c)], PN pleads that there will be operational detriment to its integrated national system if QR were itself to take over control and management with substantial loss of business to PN. There was a similar pleading in [70A(c)]. 5 In its proposed third further amended defence, QR has of course deleted the paragraphs which responded to the capacity claim pleaded in [73A] - [73D]. However, QR now pleads in answer to the claim of operational detriment the facts and matters pleaded in answer to the capacity claim. 6 Previously, QR had merely denied the operational detriment claims pleaded in [62], [68] and [70A]. QR now proposes to plead in answer to [62] a denial that PN will suffer substantial operational detriment for a number of reasons. In its proposed [61(k)(iv)E], QR seeks to plead that since the middle of 2003 the Acacia Ridge terminal has not been operated at the limit of its capacity, such that there has been at all material times further capacity capable of being exploited at the terminal. In subparagraph F of that paragraph of the proposed defence, QR seeks to plead that during 2004 and 2005 the terminal was not run efficiently by PN so that more efficient management would increase the exploitation of available capacity and lessen the possibility of operational detriment being suffered by PN. The particulars of subparagraph F are identical with the particulars of "inefficiency", which I referred to at [3] above as contained in the second further amended defence. 7 Mr Leopold objects to these two paragraphs of the proposed pleading. He also objects to subparagraphs G to J but I will not set out the detail of those paragraphs. 8 The capacity issue was referred to in argument on 28 April 2005. I will record what Mr Kelly said at transcript page 1579 as follows:-