Ousley Pty Ltd v RTA of NSW [1999] NSWSC 426

New South Wales Supreme Court CITATION : Ousley Pty Ltd v RTA of NSW [1999] NSWSC 426 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1914/97 HEARING DATE(S) : 21 & 22 April 1999 JUDGMENT DATE : 22 April 1999

PARTIES : Ousley Pty Limited (P) Roads & Traffic Authority of New South Wales (D) JUDGMENT OF : Hamilton J

COUNSEL : P M Jacobson QC & F Kunc (P) P W Taylor SC & M K Meek (D) SOLICITORS : Deacons Graham & James (P) Blake Dawson Waldron (D) CATCHWORDS : PROCEDURE [101] - Practice under Supreme Court Rules - Amendment - Late application - Attainment of justice overriding concern - Prejudice caused by amendment adequately remediable by costs. CASES CITED : The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 DECISION : Amendment and adjournment granted.

~22/04/99 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MR JUSTICE HAMILTON

THURSDAY, 22 APRIL 1999

1914/97 OUSLEY PTY LTD v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT (see p39 of the transcript)

HIS HONOUR: 1 In this matter the plaintiff has applied to file an amended reply. The history of pleading is that until a few days ago, there was no reply filed in these proceedings and no allegation of estoppel contained anywhere in the pleadings. On 1 April 1999 I granted leave to the plaintiff to file a reply. That reply, I am told, did not reach the defendant until 19 April, only a very few days before the commencement of the trial. The reply, when it arrived, in answer to the defence, made an allegation of estoppel based upon certain of the allegations in the amended points of claim. The allegation was that the defendant was estopped, by reason of the matters alleged in those paragraphs of the points of claim, from traversing specified matters in the defence. 2 The trial commenced yesterday. Overnight the plaintiff has brought forward its amended reply in which, in substance, it seeks to rely in addition on two other heads of estoppel, a conventional estoppel and an estoppel by representation. It says that, if the amendment is allowed, the trial ought be able to proceed today and tomorrow, which is the other day that has been reserved for the hearing, and that any additional investigations or evidence necessary can be carried out or found during the adjournment which will be necessary after the end of tomorrow. In that regard, the case was fixed for three days only, but an enquiry by me of the parties yesterday elicited the frank response from both of them that they did not anticipate the case being able to finish in these three days, something that also seemed to me likely on a preliminary examination of what is involved in the case. Mr Taylor, of Senior Counsel for the defendant, has said this morning that some of the evidentiary discussion which was foreshadowed yesterday may well be able to be eliminated through decisions that he had taken overnight and that perhaps at least the evidence in the case would finish by the end of this week. Whilst I appreciate that what Mr Taylor has said would save some time, I remain very sceptical of even the evidence in the case finishing by the end of the week, and still nobody seems to suggest that submissions could be dealt with this week. As I indicated yesterday, by reason of other engagements, including a long case starting next week, it would not be until about August that I could refix further days for the hearing of this case. The application for amendment and the possible consequences of it must be viewed against the fact that it is highly likely that the trial is not going to finish before August in any event. Mr Taylor has put to me that the trial could not realistically continue at all during the balance of this three day fixture if I allow the amendment. He says that the allegation, particularly of a conventional estoppel, raises issues as to the parties' relevant state of mind over a considerable period of time in a specific way that has not previously been raised in the proceedings, and that it would be necessary for him, before further conducting the defendant's case, to take further instructions on that subject matter. Discovery may be necessary, or, if not discovery, at least extensive further notices to produce or subpoenas. He draws attention to the fact that no discovery has been had in the course of these proceedings to date. Mr Jacobson, of Queen's Counsel for the plaintiff, has said that there is no reason why the trial should not continue during the balance of this three day fixture, bearing in mind the necessity for an adjournment at the end of the three days in any event. 3 I think in the light of the foregoing, what Mr Taylor has said about the future conduct of the trial is correct rather than what Mr Jacobson has said. Very often a trial can be continued after an amendment and no great inconvenience is caused by its immediate continuance, either because the amendment does nothing but put a different legal characterisation on the same body of facts, or because the additional facts raised by the amendment are discrete or minor, and can be dealt with without serious inconvenience at a later point of time. However, in this case, Mr Jacobson concedes that he will require further evidence in chief from Mr Simpson, the principal of his client company, which is not on affidavit and would at this stage have to be led viva voce, going to Mr Simpson's state of mind. This illustrates that there is a body of evidence, perhaps not large, but significant, which will now have to be led in this case, and which may overlie, in effect, the whole of the matters in issue. The matters in issue arise from difficulties in the construction of a clause in a contract for the sale of land relating to the potential necessity to remediate contamination of the land, and the extent of the work necessary, the cost of it and who was to carry it out. There was certainly a long course of dealing between the parties concerning the operation of this clause after the contract was entered into and that course of dealing is or may be central to the decision of the case. That much is clear from the evidence that is already in. I do not think it is much use to seek to traverse those matters further without the whole body of evidence being available beforehand, and the parties having had the opportunity to make whatever investigation they need to in relation to the additional material. 4 Mr Taylor has pressed me that I should simply refuse the amendment because it is brought at the heel of the hunt and bearing in mind that the amounts of money involved in this case are not huge. He has said that the issues now sought to be raised were "staring the plaintiff in the face" throughout the conduct of the proceedings and, not having been raised until this stage, they simply ought to be excluded. Even on my comparatively short acquaintance with the evidence, it does seem to me that there is some force in the suggestion that the issues were staring the plaintiff in the face. In saying that, I do not for a minute have any feeling that the plaintiff's counsel or solicitors have engaged in a course of conduct where they perceived this and have deliberately delayed bringing the amendment forward. These things simply do happen at times, even in well regulated families, if I may use the metaphor. Whilst there is some force in Mr Taylor's submission, the difficulty in acceding to it is that it may lead to the case being determined and the parties' rights regulated upon a version of the facts which is not a true version of the facts. In my view, this is not a case in which the defendant cannot, at the right stage, be appropriately compensated for the cost of this material being brought forward at a late stage by an appropriate order as to costs, and it is my view that the dictates of justice require, in those circumstances, that the plaintiff ought to be allowed to agitate this matter: The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 . However, as flows from what I have already said and as I have indicated to counsel for the plaintiff, if the amendment is granted, it must be on the basis that the case is immediately adjourned to a later day to permit the situation to be dealt with. 5 In those circumstances, the order that I propose is that the further hearing of the proceedings before me be adjourned to a day to be fixed. 6 I have been pressed by Mr Taylor that I ought at once make both an order that the plaintiff pay the defendant's costs thrown away by the amendment and the adjournment and an order under Part 52A rule 9 that those costs be assessed and paid forthwith. The latter is not the usual order made and I do not propose to depart from the usual course that interlocutory costs ordered are not to be assessed and paid until the termination of the proceedings. Whilst there is an attraction in making immediately an order that costs thrown away be paid and not deferring consideration of the question till a later time, I have formed the view that in the present case it is more appropriate to see precisely what amendment is finally made and what in fact flows from that amendment before dealing with the question of costs. I therefore reserve all questions of the costs occasioned by the amendment and the adjournment. 7 I now propose to give directions in relation to the pleadings and for the further conduct of the matter. When I say the pleadings, this case has to date not proceeded on pleadings in the strict sense, but on points of claim and points of defence, followed by a reply and a proposed rejoinder. We have a curious mishmash of pleadings and non pleadings. I had already yesterday indicated that I proposed to make an order that the proceedings continue on pleadings. While it is Mr Jacobson's current submission that the reply is the proper place for the allegations of estoppel, it is now at least possible that allegations of estoppel may be made in a statement of claim. Mr Taylor has submitted that I ought direct that the allegations of estoppel be made in the statement of claim when filed. I do not intend to engage in shaping the parties' pleadings. However, I think the matters that Mr Taylor has put forward are worthy of consideration and I intend, by the directions, to provide a tabula rasa on which the parties may engrave their pleadings anew. 8 The orders that I now make are: 1 I order that these proceedings be adjourned part heard before me to a day to be fixed. 2 I reserve all questions of costs arising from the plaintiff's application to amend its reply and from this adjournment of the proceedings. (His Honour then proceeded to give directions for the filing of pleadings.) …oOo…