RW MILLER AND CO PTY LTD v SHORTLAND COUNTY COUNCIL [1990] NSWCA 152

RW MILLER AND CO PTY LTD v SHORTLAND COUNTY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and HANDLEY JJA 21 February 1990, 27 March 1990

[1990] NSWCA 152

PLEADING AMENDMENT — application for leave to appeal against decision of single judge so restricting amendments sought by defendant party that no new issues of fact could be raised — judge influenced by history of matter prior to High Court decision — whether effect of High Court decision necessarily permitted the party to raise issues of fact which the decision on the pleading amendment subsequently precluded — Court of Appeal, being of opinion that High Court decision meant the issues of fact shut out by judge's decision should be litigated, grants leave to appeal, and sets aside single judge's orders — motions to amend pleadings remitted to Equity Division for further consideration in light of High Court's reasons and orders and Court of Appeal's reasons and orders.

Samuels JA I agree with Priestley JA.

Priestley JA This is an application by R W Miller and Co Pty Limited ("Miller") for leave to appeal against the refusal by Bryson J to permit amendments to its defences against cross-claims brought against it by Shortland County Council ("the Council") in proceedings in which the Council was the defendant.

The proceedings began in 1982 by a subsequently amended summons. Miller claimed that it was entitled, by a contract it asserted it had made with the Council, to a continuing supply to its coal mine at Mt Thorley, during the operation of the mine, of specified quantities of electricity by the Council, at a specified tariff. The Council denied Miller's claimed entitlement. There was a hearing before Helsham CJ in Eq in 1983, an appeal to the Court of Appeal in 1985, an application for special leave to appeal to the High Court later in 1985, following which the proceedings went back to the Equity Division for hearing on all issues the parties chose to raise. At this point formal pleadings were required, in which the Council formulated cross-claims for orders that Miller pay it $2,799,604.80 (cross-claim 1) or in the alternative $2,200,002.37 (cross-claim 2) or, again in the alternative, for a declaration (cross-claim 3) that the electricity supply contract between the Council and Miller was terminated with effect from 31 December 1985 and that the Council was entitled to impose a capital contribution for any contract entered into after 31 December 1985 for supply in excess of 2 MVA pursuant to the Council's 1983 Capital Contribution Policy. The amount claimed under cross-claim | was based, like cross-claim 3, on the Council's 1983 Capital Contribution Policy; cross-claim 2 was based on its 1981 policy. In 1987, after a hearing on the merits, Bryson J dismissed Miller's claim and the Council's cross-claims 1 and 2, but made a declaration on cross-claim 3 in the Council's favour.