Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248

FEDERAL COURT OF AUSTRALIA

Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 File number: NSD 995 of 2014

Judge: WIGNEY J

Date of judgment: 16 March 2017

Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – alternative application for pleading to be struck out – whether applicant has no reasonable prospect of successfully prosecuting the proceeding – whether pleading raises an arguable case PRACTICE AND PROCEDURE – application for leave to amend pleading – where applicant alleges loss and damage arising from respondent's rating of synthetic collateralised debt obligation (SCDO) – where amendment seeks to remedy alleged deficiency in pleaded chronology of reliance and inducement – whether leave to amend should be allowed – whether amendment would cure alleged deficiency in existing pleading – whether proposed amended pleading raises a case that is reasonably arguable or has reasonable prospects of success – whether amended pleading if permitted would be liable to be summarily dismissed – whether proposed amended pleading it futile PRACTICE AND PROCEDURE – application for leave to amend pleading – whether amendment should nevertheless be refused as a matter of discretion – whether nature and importance of amendments weighs in favour of allowing amendment – where significant pre-trial delay and delay in bringing amendment application – whether delay has been satisfactorily explained by applicant's solicitor – whether prejudice will arise from proposed amendment

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAA, 12BAB, 12DA, 12DB(1)(a), 12DF, 12GF Corporations Act 2001 (Cth), ss 763A, 766A, 766B, 766C, 1041E, 1041H, 1041I Federal Court of Australia Act 1976 (Cth), Part IVA, ss 31A(2), 31A(3), 33T, 37M(3) Federal Court Rules 2011 (Cth) rr 1.32, 8.21, 16.21, 16.51, 16.53, 16.54, 26.01, 30.01 Federal Court Rules 1979 (Cth) (repealed), order 13 rr 2, 3A