case_text: The application which succeeded before her Honour highlighted an identity between paras 1, 2, 3, 4, 6 and 7 of the "Details of claim" and para 2 and para 3 in the "claim for Interlocutory Relief" with the proceeding the subject of the judgment delivered by Spender J in Rogers v Asset Loan Pty Ltd [2007] FCA 1371. To this extent, it was submitted that the present proceeding was an abuse of process, an attempt to re-litigate a proceeding already determined. Further and in any event, the present Respondents submitted that Mrs Rogers had no reasonable prospect of success such that the proceeding should be dismissed pursuant to the power conferred on the Court by s 31A of the Federal Court of Australia Act . 24 Collier J conducted an analysis of the relief sought in the application, the claims made by Mrs Rogers in the present proceeding and that which she had sought and made in an earlier proceeding in this Court - proceeding QUD525/2005. In that earlier case, q v Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371 , at [9], Spender J had observed of Mrs Rogers' application: "9 It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant's husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings." 26 In Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371 , at [36] to [48] Spender J summarily stated his conclusions in respect of proceeding QUD525/2005, having regard to earlier and other proceedings which had been filed in this Court and elsewhere by Mrs Rogers or, as the case may be, Mr Rogers. It is instructive to reproduce his Honour's summary: "36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. ... 38 Notwithstanding the voluminous material in the Statement of Claim, the concern of Mrs Rogers in these proceedings as at December 2005 was directed at obtaining orders in relation to property at Fingal in New South Wales, which had been the subject of orders of the New South Wales Supreme Court in the matter 5702/2005. 39 In the proceedings before me, Mrs Rogers alleged that the respondents were seeking to enforce an improperly obtained consent judgment and writ in respect of the Fingal property. The respondents acknowledged that the judgment entered in the New South Wales Supreme Court did not accord with the terms upon which the respondent in the New South Wales matter, namely Mrs Rogers, consented to judgment being entered against her. 40 I was informed that Mrs Rogers had applied for that judgment to be set aside, and I was told by the respondents that they had agreed to consent to that judgment being set aside. 41 There was no agreement or acknowledgment by or on behalf of the respondents that they would consent to a variation of the judgment in the New South Wales Supreme Court so as to accord with the terms upon which Mrs Rogers had consented to judgment being entered against her. 42 It is in that context that the conduct of Mr Rogers, on behalf of his wife, on 12 December 2005, has to be judged. 43 Mr Rogers is in error when he asserted, as he did on 12 October 2006, that: "The solicitors for the respondents undertook to, your Honour, not to set aside that fraudulent judgment, but to place in lieu of that judgment, the correct judgment that the deed anticipated." (transcript of proceedings, p9). 44 Looking at the matter broadly, the allegations of Mrs Rogers in the Statement of Claim filed in proceedings QUD525/2005, are substantially the same as the allegations set out in Mr Rogers' Amended Statement of Claim in the matter QUD130/2006 filed by him in that proceeding on or about 20 July 2006. That Further Amended Statement of Claim comprised some 706 paragraphs. 45 Having regard to the detailed consideration of the allegations in Mr Rogers' proceedings, QUD130/2006, it is right to order that these proceedings by Lynne Maree Rogers against each of the respondents be dismissed, and that the applicant pay the respondents' costs of and incidental to those proceedings and the Notices of Motion. 46 In addition to the reasons contained in Collier Js reasons for judgment in proceedings QUD130/2006, it should be noted that by a deed of settlement dated 4 August 2006, Mrs Rogers acknowledged that loan moneys borrowed by Mr Rogers and Living Space Holdings Pty Ltd from Asset Loan Company Pty Ltd had been secured by, amongst other things, guarantees provided by Lynne Rogers. Mrs Rogers had provided security and the registered mortgagee was entitled to pursue its rights pursuant to that mortgage. 47 It seems to me plain that the present Statement of Claim has to be seen against the deliberate decision on Mrs Rogers' behalf on 12 December 2005 to ask the New South Wales Supreme Court to dismiss her application in respect of the judgment. 48 It is true that the judgment, as recorded, involved a typographical error, which does not reflect the consent given by Mrs Rogers to the making of that judgment, but the offer by the respondents in that proceeding to have the judgment set aside was not acceded to by Mrs Rogers."


case_outcome: cited

case_title: Reichel v Magrath (1889) 14 App Cas 665

case_text: There has to be an end to litigation in the sense that, once an issue has been finally determined between particular parties, an attempt by the unsuccessful party again to agitate that issue against the successful party is subversive of the administration of justice. The authorities cited by her Honour, Reichel v Magrath (1889) 14 App Cas 665, at 668-669 and Thirteenth Corp v State [2006] FCA 979 ; (2006) 232 ALR 491 , at 500 exemplify that proposition.


case_title: Thirteenth Corp v State [2006] FCA 979 ; (2006) 232 ALR 491


case_text: As to s 31A of the Federal Court of Australia Act , and as her Honour noted, the intent of that section is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities, such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. Her Honour adopted observations made by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. As so informed, her Honour approached the application on the basis that a reasonable prospect of success for the purposes of the section was one which was real, not fanciful or merely arguable. My approach would have been no different.


case_title: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125


case_title: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_title: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55


case_text: The application which succeeded before her Honour highlighted an identity between paras 1, 2, 3, 4, 6 and 7 of the "Details of claim" and para 2 and para 3 in the "claim for Interlocutory Relief" with the proceeding the subject of the judgment delivered by Spender J in Rogers v Asset Loan Pty Ltd [2007] FCA 1371. To this extent, it was submitted that the present proceeding was an abuse of process, an attempt to re-litigate a proceeding already determined. Further and in any event, the present Respondents submitted that Mrs Rogers had no reasonable prospect of success such that the proceeding should be dismissed pursuant to the power conferred on the Court by s 31A of the Federal Court of Australia Act . 24 Collier J conducted an analysis of the relief sought in the application, the claims made by Mrs Rogers in the present proceeding and that which she had sought and made in an earlier proceeding in this Court - proceeding QUD525/2005. In that earlier case, q v Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371 , at [9], Spender J had observed of Mrs Rogers' application: "9 It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant's husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings." 26 In Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371 , at [36] to [48] Spender J summarily stated his conclusions in respect of proceeding QUD525/2005, having regard to earlier and other proceedings which had been filed in this Court and elsewhere by Mrs Rogers or, as the case may be, Mr Rogers. It is instructive to reproduce his Honour's summary: "36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. ... 38 Notwithstanding the voluminous material in the Statement of Claim, the concern of Mrs Rogers in these proceedings as at December 2005 was directed at obtaining orders in relation to property at Fingal in New South Wales, which had been the subject of orders of the New South Wales Supreme Court in the matter 5702/2005. 39 In the proceedings before me, Mrs Rogers alleged that the respondents were seeking to enforce an improperly obtained consent judgment and writ in respect of the Fingal property. The respondents acknowledged that the judgment entered in the New South Wales Supreme Court did not accord with the terms upon which the respondent in the New South Wales matter, namely Mrs Rogers, consented to judgment being entered against her. 40 I was informed that Mrs Rogers had applied for that judgment to be set aside, and I was told by the respondents that they had agreed to consent to that judgment being set aside. 41 There was no agreement or acknowledgment by or on behalf of the respondents that they would consent to a variation of the judgment in the New South Wales Supreme Court so as to accord with the terms upon which Mrs Rogers had consented to judgment being entered against her. 42 It is in that context that the conduct of Mr Rogers, on behalf of his wife, on 12 December 2005, has to be judged. 43 Mr Rogers is in error when he asserted, as he did on 12 October 2006, that: "The solicitors for the respondents undertook to, your Honour, not to set aside that fraudulent judgment, but to place in lieu of that judgment, the correct judgment that the deed anticipated." (transcript of proceedings, p9). 44 Looking at the matter broadly, the allegations of Mrs Rogers in the Statement of Claim filed in proceedings QUD525/2005, are substantially the same as the allegations set out in Mr Rogers' Amended Statement of Claim in the matter QUD130/2006 filed by him in that proceeding on or about 20 July 2006. That Further Amended Statement of Claim comprised some 706 paragraphs. 45 Having regard to the detailed consideration of the allegations in Mr Rogers' proceedings, QUD130/2006, it is right to order that these proceedings by Lynne Maree Rogers against each of the respondents be dismissed, and that the applicant pay the respondents' costs of and incidental to those proceedings and the Notices of Motion. 46 In addition to the reasons contained in Collier Js reasons for judgment in proceedings QUD130/2006, it should be noted that by a deed of settlement dated 4 August 2006, Mrs Rogers acknowledged that loan moneys borrowed by Mr Rogers and Living Space Holdings Pty Ltd from Asset Loan Company Pty Ltd had been secured by, amongst other things, guarantees provided by Lynne Rogers. Mrs Rogers had provided security and the registered mortgagee was entitled to pursue its rights pursuant to that mortgage. 47 It seems to me plain that the present Statement of Claim has to be seen against the deliberate decision on Mrs Rogers' behalf on 12 December 2005 to ask the New South Wales Supreme Court to dismiss her application in respect of the judgment. 48 It is true that the judgment, as recorded, involved a typographical error, which does not reflect the consent given by Mrs Rogers to the making of that judgment, but the offer by the respondents in that proceeding to have the judgment set aside was not acceded to by Mrs Rogers." 27 Collier J noted that the consumer protection provisions of the ASIC Act , called in aid by Mrs Rogers in the present proceeding, replicated those found in the Trade Practices Act and were associated with the transfer of responsibility for consumer protection functions in relation to financial services from the Australian Competition and Consumer Commission to the Australian Securities and Investments Commission: She further noted (at [16]) that there were two differences between the application which Mrs Rogers filed in the present proceeding and her application which became the subject of the orders made by Spender J in QUD525/2005: "1. First, the substantive application in QUD525/2005 purported to be a claim for relief under the Trade Practices Act 1974 (Cth) while the proceedings before me purport to be brought under the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"). 2. Second, whereas in the substantive application before me the applicant seeks as relief an order to set aside a bankruptcy notice filed by the second respondent on the grounds of a set off or counterclaim, and by way of interlocutory relief an order extending time to comply with that bankruptcy notice, no such relief was sought in the substantive application in QUD525/2005." 28 Strictly speaking, with respect, there was a third difference. Mr Whittle was not a Respondent to Mrs Rogers' application in QUD525/2005. However, the addition of Mr Whittle as a party seems to me to have been quite gratuitous. The omission by her Honour expressly to note this further difference does not detract from the conclusions which she reached as to what ought to be the fate of the present proceeding. 29 Mrs Rogers' contended that her Honour erroneously found that she was a bankrupt. That is incorrect. There is no such finding. What her Honour did find was that Mrs Rogers could be viewed as a proxy for her husband whose bankruptcy inhibited his ability to pursue his alleged grievances against one or more of the Respondents. As the above chronology and a study of the proceedings referred to demonstrate, the temporal connections between the litigation of husband and wife are striking. 30 It is a given that husband and wife are not one in the eyes of the law and that, in relation to the provision of financial services, the ASIC Act confers causes of action that are no longer to be found in the Trade Practices Act . Her Honour did not find to the contrary. Rather, having regard to what were alleged in Mrs Rogers' affidavit to be the underlying facts, matters and circumstances, she was of the opinion that Mrs Rogers was, in substance, attempting to re-litigate matters decided by Spender J in QUD525/2005. Further and in any event, but again having regard to the reasons for judgment of Spender J in that case, her Honour was also of the view that the calling in aid of the ASIC Act , rather than the Trade Practices Act , would not make Mrs Rogers any more successful. I agree. I regard the remarks made by Spender J at paras 46, 47 and 48 of his reasons for judgment in QUD525/2005, quoted above, as particularly apposite. In terms of s 31A of the Federal Court of Australia Act , Mrs Rogers has no reasonable prospect of successfully prosecuting her latest proceeding.


case_text: In Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350 the High Court endorsed remarks made by Roxburgh J in Re A Debtor [1958] 1 Ch 81 at 99 as to what a debtor must show in order to demonstrate the existence of a valid set off or counterclaim for the purposes of the law of bankruptcy. In effect, it is incumbent upon a debtor to satisfy the Court that he or she has a reasonable prospect of success in respect of the alleged set off or counterclaim. This need not entail the bringing forward of all of the admissible evidence that may be necessary to establish such a claim. The debtor must though put before the Court sufficient material to show that, at least prima facie and in prospect, he or she has a reasonable chance of establishing the claim. This is how her Honour approached this aspect of the matter.


case_title: Re A Debtor [1958] 1 Ch 81 at 99


case_text: The motion itself was filed in the appeal proceedings, and the question arises whether, if this were an exercise of the appellate jurisdiction of the Court I, as a single judge, would have power to make an order of the kind contemplated. I think that is highly questionable. There is, nevertheless, authority for the proposition, including my own decision in Tuncak and Others v Young (1987) 14 ALD 286, and that of Hely J in NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 999 , and the earlier decision of Toohey J in Bercove v Hermes (No 2) (1983) 51 ALR 105 that is it open to a single judge, in the exercise of the original jurisdiction of the Court and the application of the powers conferred upon judges of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), to make an interlocutory order to ensure that an appeal to the Full Court, if successful, would not be nugatory, notwithstanding that the proceedings at first instance had been dismissed by the order of another judge of the Court.


case_text: The motion itself was filed in the appeal proceedings, and the question arises whether, if this were an exercise of the appellate jurisdiction of the Court I, as a single judge, would have power to make an order of the kind contemplated. I think that is highly questionable. There is, nevertheless, authority for the proposition, including my own decision in Tuncak and Others v Young (1987) 14 ALD 286, and that of Hely J in NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 999 , and the earlier decision of Toohey J in Bercove v Hermes (No 2) (1983) 51 ALR 105 that is it open to a single judge, in the exercise of the original jurisdiction of the Court and the application of the powers conferred upon judges of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), to make an interlocutory order to ensure that an appeal to the Full Court, if successful, would not be nugatory, notwithstanding that the proceedings at first instance had been dismissed by the order of another judge of the Court. 6 Hely J in NAMU said (at [11]): 'The weight of authority thus favours the proposition that a single judge may, in the exercise of the original jurisdiction of the Court, and notwithstanding the dismissal of proceedings at first instance, grant an interlocutory injunction to operate pending a determination of an appeal to a Full Court. In Bercove v Hermes Toohey J granted the interlocutory injunction even though the order dismissing the proceedings had been made by another judge of the Court. Accordingly, I reject the Minister's submission that the present application is not one which may be entertained by a single judge. Neither party asked me to refer the Motion to Beaumont J, and I conclude that I have the power to entertain it. The Motion was filed in the appeal proceedings, but that is an irregularity which is capable of being cured.' In this case the order which is sought, as reflected in a minute of orders which has been submitted to the Court, would require the Chief Magistrate and the Magistrates Court to "be restrained from proceeding with any extradition process involving the applicant until further order". Quite apart from the question of whether the Magistrates Court as an entity can be so restrained, having regard to the fact that the relevant function is conferred persona designata upon the individual Magistrate allocated to hear it and not in the exercise of a judicial function, there is the issue of comity and proper respect between courts which would make me very reluctant to make an order of the kind sought. 7 It has long been the practice where a stay has been sought of proceedings in one court by a party involved in proceedings in another that the form of restraint is directed to the party prosecuting the proceedings in the other court, so that rather than an order purporting to apply directly to that court, which may of course raise questions not just of comity but of power, the order is directed to the party to restrain it from prosecuting the proceedings. The form of order that is appropriate in this case, and I am satisfied as a matter of discretion that it is appropriate to protect the utility of the pending appeal, is an order which would restrain the first respondent, that is the Republic of Hungary, from further prosecuting the eligibility proceedings under s 19 before any magistrate in the Magistrates Court of Western Australia pending the hearing and determination by the Full Court of the appeal or further order, and it is an order in those terms that I propose to make. I will allow liberty to apply in case any difficulties should arise in relation to the implementation of my order s . I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 14 December 2006 Counsel for the Appellant: Dr S Churches Solicitor for the Appellant: Cannon Bowden & Co Counsel for the First Respondent: Mr DWL Renton Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 30 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1735.html


case_title: Bercove v Hermes (No 2) (1983) 51 ALR 105


case_text: It is quite clear that each of Lane, Primmer and Kelly knew that Silvestri P/L had been engaged to do the excavation work. The opening exchange on 20 October 2003 showed that Lane was aware that the existing contractor had been sacked. Lane and Primmer knew of Antonio Silvestri's proposed involvement on 20 October 2003 and each of them saw Antonio Silvestri working on the site on 21 October 2003. It was obvious that that was the result of a contract for reward with LGB. Silvestri P/L was not a charitable organisation and LGB was not a mendicant. It is not necessary to prove that Lane, Primmer and Kelly had knowledge of the precise terms of the agreement ( J T Stratford & Son Ltd v Lindley [1965] AC 269 per Lord Pearce at 332F G; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 293). The findings that I have already made involve each of Lane, Primmer and Kelly in deliberately taking steps to hinder or prevent Silvestri P/L from carrying out its contract with LGB and were, in fact, intended to cause Silvestri P/L and Antonio Silvestri to be banned from the site and the contract to be terminated. There could not be a clearer case than this of interference with contractual relations. There was no attempt to pursue a defence of justification. (See, generally, Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30; Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211; and Odco Pty Ltd 29 FCR 104 and the authorities referred to in those cases.)


case_title: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211


case_text: The factual findings that I have made require further findings that: (1) Lane and Primmer, on 20 and 21 October 2003, engaged in conduct that hindered and prevented LGB from acquiring services from Silvestri P/L. Threats and verbal intimidation, as well as physical interference, can constitute hindering or preventing the supply or acquisition of services ( Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129; J-Corp Pty Limited 42 FCR 452 per Lockhart and Gummow JJ at 459 460). Services for these purposes include benefits to be provided under a contract for the performance of work ( Trade Practices Act , s 4). It was submitted on behalf of the respondents that, in any event, the conduct could not extend beyond the blocking of the driveway by Lane. That is too limited a view of the situation. The aim of Lane and Primmer was to prevent Silvestri P/L from carrying out any work on site by LGB. They succeeded. Work was stopped and the contract was terminated. The blocking of the driveway was a small step toward that objective. It was not of great significance in itself. It was significant in the wider context by demonstrating the extent to which Union officials would go to target Antonio Silvestri and Silvestri P/L. (2) The conduct was engaged in for the purpose and would have, or be likely to have, the effect of causing substantial loss or damage to the business of Silvestri P/L. It is enough if one of the purposes of engaging in the conduct was the proscribed purpose (s 45D(2)). A purpose of the conduct was plainly to inflict such injury to Silvestri P/L that it would enter into an EBA with the Union and Antonio Silvestri would become a Union member. The evidence as to what Lane, Primmer and Kelly said to LGB employees, consistently with the evidence of Antonio Silvestri, was that this was not an isolated instance of pursuit of Antonio Silvestri by the Union. That circumstance gives colour to the particular facts relied upon in this case. This is not a case, such as J-Corp Pty Limited 42 FCR 452, where damage was collateral in the sense that, although predictable, the infliction of harm or damage was not a purpose in itself. Here, the two were inextricably linked. It is significant in this, and a number of other respects, that no endeavour was made by the Union to establish the genuineness of the complaints made by its officials about the safety record and commercial morality of Antonio Silvestri and Silvestri P/L. Loss or damage to Silvestri P/L was inevitable. "Substantial" in the context of s 45D means real or of substance rather than large ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331 at 348; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 140). Being prevented from carrying out a contract for reward is substantial in this sense. The arrangement between Antonio Silvestri and LGB was that Silvestri P/L would provide those services necessary to carry out the whole of the excavation work required on the site. Preventing that outcome would cause substantial loss or damage.


case_outcome: applied

case_text: The threat of disruption was a threat of "other action" ( National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114 at [95] ; Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [7] and [12] [13]). It can safely be concluded that Lane's intent in making the threats was to coerce the officers of LGB into agreeing to an EBA. The threat of disruption to work on the project by any available means was pressure that was illegitimate and unconscionable. LGB had completion of a project of some $16 million at stake. Any disruption to progress would have significant adverse financial consequences. It was clear enough that the threats also envisaged unlawful action. Threats of picketing were made. There would appear to be no lawful basis for picketing in relation to this site (cf Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 per Lockhart and Gummow JJ at 456 458, although on different legislation). Unlawful conduct had taken place. The direct action by Lane and Primmer on 21 October 2003 fell into that category. The conduct in breach of s 45D and the inducement of breach of contract to be found were unlawful as well as illegitimate and unconscionable. (See generally Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 ; (2000) 106 FCR 16 at [19] [25]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] ; and National Tertiary Education Industry Union [2002] FCA 441 ; 117 FCR 114 at [97] [103].) 78 The factual findings that I have made require further findings that: (1) Lane and Primmer, on 20 and 21 October 2003, engaged in conduct that hindered and prevented LGB from acquiring services from Silvestri P/L. Threats and verbal intimidation, as well as physical interference, can constitute hindering or preventing the supply or acquisition of services ( Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129; J-Corp Pty Limited 42 FCR 452 per Lockhart and Gummow JJ at 459 460). Services for these purposes include benefits to be provided under a contract for the performance of work ( Trade Practices Act , s 4). It was submitted on behalf of the respondents that, in any event, the conduct could not extend beyond the blocking of the driveway by Lane. That is too limited a view of the situation. The aim of Lane and Primmer was to prevent Silvestri P/L from carrying out any work on site by LGB. They succeeded. Work was stopped and the contract was terminated. The blocking of the driveway was a small step toward that objective. It was not of great significance in itself. It was significant in the wider context by demonstrating the extent to which Union officials would go to target Antonio Silvestri and Silvestri P/L. (2) The conduct was engaged in for the purpose and would have, or be likely to have, the effect of causing substantial loss or damage to the business of Silvestri P/L. It is enough if one of the purposes of engaging in the conduct was the proscribed purpose (s 45D(2)). A purpose of the conduct was plainly to inflict such injury to Silvestri P/L that it would enter into an EBA with the Union and Antonio Silvestri would become a Union member. The evidence as to what Lane, Primmer and Kelly said to LGB employees, consistently with the evidence of Antonio Silvestri, was that this was not an isolated instance of pursuit of Antonio Silvestri by the Union. That circumstance gives colour to the particular facts relied upon in this case. This is not a case, such as J-Corp Pty Limited 42 FCR 452, where damage was collateral in the sense that, although predictable, the infliction of harm or damage was not a purpose in itself. Here, the two were inextricably linked. It is significant in this, and a number of other respects, that no endeavour was made by the Union to establish the genuineness of the complaints made by its officials about the safety record and commercial morality of Antonio Silvestri and Silvestri P/L. Loss or damage to Silvestri P/L was inevitable. "Substantial" in the context of s 45D means real or of substance rather than large ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331 at 348; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 140). Being prevented from carrying out a contract for reward is substantial in this sense. The arrangement between Antonio Silvestri and LGB was that Silvestri P/L would provide those services necessary to carry out the whole of the excavation work required on the site. Preventing that outcome would cause substantial loss or damage.


case_text: Evidence and submissions as to damages are complete. A further hearing on penalties will be necessary. I will make no declarations or orders until all issues have been determined (cf Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22 at [7] ). The proceeding will stand over to a date to be fixed. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 13 July 2007 Counsel for the Applicants: Mr RM Goot AM SC, Mr MJ Heath Solicitor for the Applicants: Minter Ellison Lawyers Counsel for the Respondents: Mr JH Pearce Solicitor for the Respondents: Taylor & Scott Dates of Hearing: 9 13 and 19 20 October 2006 and 7 8 November 2006 Date of Last Submission: 5 December 2006 Date of Judgment: 13 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1047.html


case_text: It is unnecessary to explore the difficulties in the way of establishing liability in the Union for this particular offence, absent s 349 (cf Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162). 83 I find that the contract between LGB and Silvestri P/L was to carry out the whole of the excavation works required at the site for the works being conducted by LGB, subject to implied terms as to competence and progress. The fact that the remuneration was to be calculated on a per hour or per load basis does not detract from that conclusion.


case_text: There are some questions as to the proper construction of the section. It is contended for the respondents that intention to make a false and misleading representation is a necessary element of the offence. There is no direct authority in favour of that proposition. It is submitted that the reasoning in relation to other sections included in Pt 10A would be applicable (cf BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [77] ; Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [70] [78]). Indeed, such authority as exists is against the proposition contended for by the respondents ( Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346 at [31] [34]; Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263, [2007] FCA 87 at [288] [289]; see also Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561; (1977) 31 FLR 129 per Bowen CJ at 134; Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439; (1977) 29 FLR 212). The presence of s 4(7) also tends against it. There is also a question as to whether the section only applies where the false or misleading representation about another's obligation to join an industrial association must be made to that other person. Graham J was of the opinion that the section was not so limited ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87 at [287] [291]). Although not raised here, there may also be a question as to the meaning of "obligation" does it refer to legal obligation or practical obligation?


case_title: BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97


case_text: The factual findings that I have made require further findings that: (1) Lane and Primmer, on 20 and 21 October 2003, engaged in conduct that hindered and prevented LGB from acquiring services from Silvestri P/L. Threats and verbal intimidation, as well as physical interference, can constitute hindering or preventing the supply or acquisition of services ( Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129; J-Corp Pty Limited 42 FCR 452 per Lockhart and Gummow JJ at 459 460). Services for these purposes include benefits to be provided under a contract for the performance of work ( Trade Practices Act , s 4). It was submitted on behalf of the respondents that, in any event, the conduct could not extend beyond the blocking of the driveway by Lane. That is too limited a view of the situation. The aim of Lane and Primmer was to prevent Silvestri P/L from carrying out any work on site by LGB. They succeeded. Work was stopped and the contract was terminated. The blocking of the driveway was a small step toward that objective. It was not of great significance in itself. It was significant in the wider context by demonstrating the extent to which Union officials would go to target Antonio Silvestri and Silvestri P/L. (2) The conduct was engaged in for the purpose and would have, or be likely to have, the effect of causing substantial loss or damage to the business of Silvestri P/L. It is enough if one of the purposes of engaging in the conduct was the proscribed purpose (s 45D(2)). A purpose of the conduct was plainly to inflict such injury to Silvestri P/L that it would enter into an EBA with the Union and Antonio Silvestri would become a Union member. The evidence as to what Lane, Primmer and Kelly said to LGB employees, consistently with the evidence of Antonio Silvestri, was that this was not an isolated instance of pursuit of Antonio Silvestri by the Union. That circumstance gives colour to the particular facts relied upon in this case. This is not a case, such as J-Corp Pty Limited 42 FCR 452, where damage was collateral in the sense that, although predictable, the infliction of harm or damage was not a purpose in itself. Here, the two were inextricably linked. It is significant in this, and a number of other respects, that no endeavour was made by the Union to establish the genuineness of the complaints made by its officials about the safety record and commercial morality of Antonio Silvestri and Silvestri P/L. Loss or damage to Silvestri P/L was inevitable. "Substantial" in the context of s 45D means real or of substance rather than large ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331 at 348; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 140). Being prevented from carrying out a contract for reward is substantial in this sense. The arrangement between Antonio Silvestri and LGB was that Silvestri P/L would provide those services necessary to carry out the whole of the excavation work required on the site. Preventing that outcome would cause substantial loss or damage. 84 It is quite clear that each of Lane, Primmer and Kelly knew that Silvestri P/L had been engaged to do the excavation work. The opening exchange on 20 October 2003 showed that Lane was aware that the existing contractor had been sacked. Lane and Primmer knew of Antonio Silvestri's proposed involvement on 20 October 2003 and each of them saw Antonio Silvestri working on the site on 21 October 2003. It was obvious that that was the result of a contract for reward with LGB. Silvestri P/L was not a charitable organisation and LGB was not a mendicant. It is not necessary to prove that Lane, Primmer and Kelly had knowledge of the precise terms of the agreement ( J T Stratford & Son Ltd v Lindley [1965] AC 269 per Lord Pearce at 332F G; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 293). The findings that I have already made involve each of Lane, Primmer and Kelly in deliberately taking steps to hinder or prevent Silvestri P/L from carrying out its contract with LGB and were, in fact, intended to cause Silvestri P/L and Antonio Silvestri to be banned from the site and the contract to be terminated. There could not be a clearer case than this of interference with contractual relations. There was no attempt to pursue a defence of justification. (See, generally, Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30; Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211; and Odco Pty Ltd 29 FCR 104 and the authorities referred to in those cases.)


case_outcome: referred to

case_text: The threat of disruption was a threat of "other action" ( National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114 at [95] ; Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [7] and [12] [13]). It can safely be concluded that Lane's intent in making the threats was to coerce the officers of LGB into agreeing to an EBA. The threat of disruption to work on the project by any available means was pressure that was illegitimate and unconscionable. LGB had completion of a project of some $16 million at stake. Any disruption to progress would have significant adverse financial consequences. It was clear enough that the threats also envisaged unlawful action. Threats of picketing were made. There would appear to be no lawful basis for picketing in relation to this site (cf Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 per Lockhart and Gummow JJ at 456 458, although on different legislation). Unlawful conduct had taken place. The direct action by Lane and Primmer on 21 October 2003 fell into that category. The conduct in breach of s 45D and the inducement of breach of contract to be found were unlawful as well as illegitimate and unconscionable. (See generally Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 ; (2000) 106 FCR 16 at [19] [25]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] ; and National Tertiary Education Industry Union [2002] FCA 441 ; 117 FCR 114 at [97] [103].)


case_title: Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439; (1977) 29 FLR 212


case_title: Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87


case_title: Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346


case_outcome: followed

case_text: The next question is whether either or both of CFMEU and CFMEU NSW are liable for the conduct of Lane. The leading Full Court authority as to that question in relation to these provisions is Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530, particularly at [48] [85]. It is not necessary to set that passage out. Lane's conduct was within the scope of his employment and his inferred actual and apparent authority as an officer of CFMEU. He was not on a frolic of his own. He was accompanied by other officials. Meetings took place at the Union office. The objective of entering into an EBA with LGB was a normal Union objective. The position in relation to CFMEU NSW is not quite so clear. Lane is a conference delegate. The later correspondence with the State President of CFMEU NSW did not repudiate his authority and it described those concerned collectively as "our Wollongong officials". The draft EBA proffered by Lane was with the CFMEU NSW. I am satisfied that he represented both organisations. 72 In my opinion, consistently with the reasons of the Full Court in Hanley [2000] FCA 1188 ; 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s 349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd [2001] FCA 456 ; 109 FCR 378 at [45] [47] to that effect receives support from the decision of the High Court in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553. 80 That gives rise to the issue of the liability of the Union for these breaches. The principles applying to a union's direct liability for breach of s 45D of the Trade Practices Act are broadly similar to those discussed in Hanley [2000] FCA 1188 ; 100 FCR 530, substituting s 45DC and s 75B of the Trade Practices Act for s 349 of the Workplace Relations Act . The Union argues that s 45DC was not pleaded and that reliance upon it is not open. The applicants do not accept that it needed to be pleaded or that failure to plead it has had any adverse evidentiary or forensic consequences to the respondents. Whether s 45DC should be pleaded is a difficult question, somewhat similar to that as to whether s 51A of the Trade Practices Act should be pleaded. However, on any view, the intention to rely upon it should be made clear in some way to avoid forensic disadvantage. Whether or not the section should have been pleaded, reliance upon it by the applicants was flagged in time for any adverse consequence to have been cured by the Union. It can be taken that all of the available evidence relevant to that provision has been led. No adjournment to lead further evidence was sought. The question of costs can be left open. 81 In my opinion, s 45DC is clearly applicable and catches both CFMEU and CFMEU NSW. Lane and Primmer were officials and members of the organisations in the way previously discussed. No attempt was made to rely upon s 45DD. I note that there is a conflict between the respondents as to this point. If s 45DC is applied, Lane and Primmer are relieved of liability for damages for the breaches (s 45DC(4)).


case_text: Penalties are sought in relation to the breach of s 170NC. No penalty is sought in relation to breach of s 45D. Damages are sought for breach of s 45D. Damages are sought for inducing breach of contract. The damages, being awarded on tortious principles, would seem to be the same as those appropriate in this case for breach of s 45D. No claim is made for exemplary damages ( Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251; Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298; (2003) 197 ALR 626).


case_text: In my opinion, consistently with the reasons of the Full Court in Hanley [2000] FCA 1188 ; 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s 349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd [2001] FCA 456 ; 109 FCR 378 at [45] [47] to that effect receives support from the decision of the High Court in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553.


case_title: J T Stratford & Son Ltd v Lindley [1965] AC 269


case_text: I am satisfied that such an occasion did occur on 20 October 2003. Evidence to that effect was given by five witnesses for the applicant. Krkovski had only recently made the decision to employ Silvestri P/L in lieu of the previous excavation subcontractor. At the time he gave evidence, he was not employed by LGB and provided no affidavit in advance of the hearing. Matlioski was a contracts administrator employed by LGB based in Sydney who was visiting the site. He was no longer employed by LGB at the time he gave evidence. Matlioski was accompanied to the site that day by one Mr Branco Riklovski, a draftsman employed by LGB based in Sydney. He was not called to give evidence. Because of the absence of that witness, counsel for the respondents sought to rely upon the principle in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Picciau was the Assistant Project Manager employed by LGB. Srbinovski was a leading hand employed by LGB. Hill was a labourer employed by LGB who was no longer employed at the time he gave evidence and had not been employed since April 2004. There were inconsistencies in the detail of the evidence given by these witnesses and there is no contemporaneous note by any of them. There is a reasonably contemporaneous note by Matlioski but it appears to have been produced as a result of a request by the Building Industry Taskforce which was investigating Antonio Silvestri's complaints. However, each witness clearly identified and gave evidence about the same occurrence on the Monday, which was the day before the drama at the site on Tuesday 21 October 2003. Given what occurred on 21 October 2003, it is most unlikely that all of the witnesses would have been mistaken about the timing of the meeting with the Union officials about which they gave evidence. 40 The WorkCover inspector, Childs, recorded in his notebook that, when he met Krkovski and Antonio Silvestri on the morning of 21 October 2003, Krkovski stated that: "The issue started yesterday when they attended" [the Union and] "arrived on site Dave Kelly & Mick Lane. Issues raised by Union 1) Why was the excavation company changed ..." Whilst Krkovski had obviously mistaken the names of Primmer and Kelly, this was significant independent and contemporaneous evidence confirming the version of the witnesses for the applicants. 41 I see no reason to doubt the honesty of any of the witnesses called by the applicants as to this incident. Three had left the employ of LGB at the time they gave evidence and clearly had nothing to gain one way or the other. The newly-appointed site manager would be expected to have a good recall of the events and appeared to do so given the difficulties occasioned by the considerable lapse of time between the events and giving evidence. He presented as a competent and intelligent person. Matlioski appeared to be an honest and competent witness whose nearly contemporaneous note supported the existence of the occasion. Hill was, as his background would suggest, of limited sophistication and was, at times, quite inarticulate. Apart from a tendency to agree, perhaps too readily, to matters that were put to him, his honesty could not be questioned. Srbinovski, although still employed by LGB, appeared to me to be an honest and reliable witness. The same could be said of Picciau. It needs to be borne in mind that LGB itself had little to gain from involvement in the proceedings. It is suggested that the proceeding assists LGB in dealing with or avoiding any claim from Silvestri P/L. In my view, that possibility would rate fairly low on the scale for a developer compared with becoming embroiled in an adversary proceeding against these respondents.


case_title: Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018


case_title: Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251


case_title: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114


case_text: Each of the individual respondents was a full time official of either the CFMEU or CFMEU NSW. Each was engaged in what may broadly be called union business on the days in question. No one was on a frolic of his own. For relevant purposes, officers of each organisation were cooperating or acting in concert to achieve a result. The conduct of each was in the course of employment. Each organisation is liable on ordinary principles of vicarious liability in tort ( New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511 per Gleeson CJ at [40] [41]). 86 I reject the submission that the interference with contract was limited to the couple of hours for which the car was parked across the vehicular access to the site on 21 October 2003. It follows from the findings previously made that the intention of the officials of the Union was to ensure that the contract was terminated and that Silvestri P/L did not return to the site. Whilst closure of the site on 21 October 2003 might be directly attributed to the Council, the closure of the site for that reason was not the effective cause of the termination of the contract with Silvestri P/L. That result was achieved by the concerted action of the Union officials. 87 Liability can be summarised as follows: (1) Lane, CFMEU and CFMEU NSW contravened s 170NC. (2) Lane, Primmer, Kelly, CFMEU and CFMEU NSW contravened s 45D. (3) Lane, Primmer, Kelly, CFMEU and CFMEU NSW induced a breach of the contract between LGB and Silvestri P/L.


case_title: Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561; (1977) 31 FLR 129


case_text: It is not necessary for me to come to any independent view about those issues. Counsel for the respondents points out that it is only conduct which falls within the scope of s 298D s 298H (inclusive) that is proscribed. Authority is hardly necessary for that proposition in view of s 298C, but, cf Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95 at 106G. The only hook to hang this proceeding upon would be s 298D(c) providing that the Part applied to: "conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation." 76 In my opinion, that hook is not available. The statements by Kelly to Veljanov were an explanation of, or commentary upon, what was occurring. They were answers to inquiries with no intent or purpose as such relating to the membership of the Union either by Veljanov or Antonio Silvestri. That conclusion is assisted by bearing in mind that Kelly was only a casual participant in the events, having been brought along by Primmer. 77 Even if it were not for Div 2 of Pt 10A , I would have been inclined to construe s 298SC as requiring a greater connection between the false or misleading representation and the obligation than established by these facts.


case_title: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275


case_text: The threat of disruption was a threat of "other action" ( National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114 at [95] ; Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [7] and [12] [13]). It can safely be concluded that Lane's intent in making the threats was to coerce the officers of LGB into agreeing to an EBA. The threat of disruption to work on the project by any available means was pressure that was illegitimate and unconscionable. LGB had completion of a project of some $16 million at stake. Any disruption to progress would have significant adverse financial consequences. It was clear enough that the threats also envisaged unlawful action. Threats of picketing were made. There would appear to be no lawful basis for picketing in relation to this site (cf Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 per Lockhart and Gummow JJ at 456 458, although on different legislation). Unlawful conduct had taken place. The direct action by Lane and Primmer on 21 October 2003 fell into that category. The conduct in breach of s 45D and the inducement of breach of contract to be found were unlawful as well as illegitimate and unconscionable. (See generally Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 ; (2000) 106 FCR 16 at [19] [25]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] ; and National Tertiary Education Industry Union [2002] FCA 441 ; 117 FCR 114 at [97] [103].) 72 In my opinion, consistently with the reasons of the Full Court in Hanley [2000] FCA 1188 ; 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s 349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd [2001] FCA 456 ; 109 FCR 378 at [45] [47] to that effect receives support from the decision of the High Court in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553.


case_title: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331


case_title: Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30


case_outcome: related

case_title: Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715 ,

case_text: appeal from the making of a sequestration order by Raphael FM ( Crown Diagnostic Imaging Pty Ltd v Sood (No 2) [2006] FMCA 265) concerns the interplay between the bankruptcy legislation and the Federal proceeds of crime legislation, as did an earlier interlocutory issue ( Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715). The main question in the appeal is whether an order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) effectively stays execution on an outstanding judgment against the party subject to that order for the purposes of s 40(1)(g) and s 41(3)(b) of the Bankruptcy Act 1966 (Cth). There is also an issue as to whether the learned Federal Magistrate was in error in making a sequestration order in any event. The facts as to the main question are in a short compass. On 26 July 2004 the Director of Public Prosecutions (Commonwealth) obtained orders against Dr Suman Sood (the debtor), the relevant parts of which are as follows: '1. Pursuant to section 18 of the Proceeds of Crime Act 2002 ("the Act "), all the property (within the meaning of "property" as defined in section 338 of the Act ) of Suman Sood ("the Defendant"), including the property described in the First Schedule, but excluding her interest in any business, is not to be disposed of or otherwise dealt with by any person. 2. Pursuant to section 18 of the Act , specified property of another person, namely Suman Medical Pty Limited, being the property described in the Second Schedule is not to be disposed of or otherwise dealt with by any person.' Property is defined as follows: 'Real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.' On 10 September 2004, Crown Diagnostic Imaging Pty Ltd (the creditor) obtained judgment in the Local Court against the debtor in the sum of $59 013.05. On 23 May 2005 a bankruptcy notice was issued by the Official Receiver at the instance of the creditor to the debtor, which notice was served upon the debtor on 24 May 2005. The bankruptcy notice was not complied with on or before 15 June 2005 as required.


case_text: 24 provides that a court may allow a specified debt incurred in good faith by a person to be met out of property covered by a restraining order but, amongst other conditions, that can only be done if the person whose property is restrained has applied for the order (s 24(1)(d), s 24(2)(a)). The decision of the Supreme Court of New South Wales in relation to this very order in Director of Public Prosecutions v Sood (unreported, Supreme Court of New South Wales, Studdert J, 7 February 2006), establishes that an unsecured creditor has effectively no status to make an application concerning the effect of a s 18 order. No application pursuant to s 24 was made by the debtor prior to the issue and service of the bankruptcy notice. Concurrently with the enactment of the Proceeds of Crime Act 2002 , the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) specifically dealt with the effect of orders pursuant to the Proceeds of Crime Act 2002 upon the Bankruptcy Act 1966 and introduced other amendments to that Act. Section 58A was introduced into the Bankruptcy Act 1966 and modifies the normal operation of s 58(1) that vests property in the Official Trustee or registered trustee as appropriate. Section 58A(1) provides that s 58(1) does not apply to any property of the bankrupt which is covered by a restraining order at the date of the bankruptcy. Section 82(3A) in its current form was also introduced and provides that an amount payable under a proceeds of crime law is not provable in bankruptcy. It was submitted on behalf of the Director of Public Prosecutions (who was permitted to appear as amicus) that a restraining order under the Proceeds of Crime Act has the effect of freezing action under the Bankruptcy Act 1966 and prevents property covered by it from being dealt with or distributed under that Act. It is correct that the 2002 amendments give primacy to the proceeds of crime regime over the bankruptcy regime to that extent. However, Parliament did not make any express provision in relation to bankruptcy notices or sequestration orders. Having considered the authorities in the light of the submissions from counsel in this case, I am left with the feeling that this area of the law needs to be sorted out by the High Court or the legislature. The concept of stay of execution has been stretched beyond recognition. It is difficult to find a basis in the words of the statute for the fine distinctions drawn in the cases. However, in the meantime, I must do the best I can.


case_title: Boscolo v Botany Council [1996] FCA 897

case_text: must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.


case_outcome: discussed

case_text: relevant authorities were considered in this Court by Mathews J in Commissioner of Taxation v Stuart-Jones [2000] FCA 1022 ; (2000) 102 FCR 296 in a similar context. In that case the Supreme Court of New South Wales had made a restraining order under s 10 of the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) against the debtor. A bankruptcy notice was served some time later whilst the order was still in force. In that case the order pursuant to s 10 related only to an identified property and not to the whole of the property of the debtor. Section 10(8) provided as follows: 'If a restraining order is in force in respect of an interest of a person in property, the restraining order does not prevent: (a) the levying of execution against the property in satisfaction, or partial satisfaction, of the debt arising under a proceeds assessment order in force against the person, or (b) with the consent of the Supreme Court, the sale or other disposition of the interest to enable the proceeds to be applied in satisfaction or partial satisfaction of that debt, or (c) with the consent of the Supreme Court, the application of the interest in satisfaction or partial satisfaction of that debt.' A 'proceeds assessment order' was an order that the person pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity which took place within the preceding six years. Mathews J indicated that it was at least arguable that a restraining order over the whole of a debtor's property would have the effect of preventing the levying of execution in the relevant sense. However, because of the limited nature of the order in that case, the debtor failed to establish invalidity of the bankruptcy notice. Before considering the authorities, the Proceeds of Crime Act 2002 should be examined a little more closely. The relevant provisions are described as 'The confiscation scheme' and are summarised in s 7 of that Act as follows: 'Chapter 2 sets out 5 processes relating to confiscation: (a) restraining orders prohibiting disposal of or dealing with property (see Part 2-1); and (b) forfeiture orders under which property is forfeited to the Commonwealth (see Part 2-2); and (c) forfeiture of property to the Commonwealth on conviction of a serious offence (see Part 2-3); and (d) pecuniary penalty orders requiring payment of amounts based on benefits derived from committing offences (see Part 2-4); and (e) literary proceeds orders requiring payment of amounts based on literary proceeds relating to offences (see Part 2-5).' It is an offence to breach a restraining order (s 37). It is not clear whether breach of an order would be contempt of court. An order pursuant to s 18 does not appear to catch after acquired property. The Court may order that the Official Trustee take the custody and control of property covered by a restraining order (s 38). The Court may set aside a disposition contravening a restraining order (s 36). I must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.


case_title: Ling v Enrobook Pty Ltd (1997) 74 FCR 19


case_title: National Australia Bank Ltd v Pollak (2001) 186 ALR 44


case_title: Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131


case_title: Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567


case_title: Wiltshire-Smith v Olsson (1995) 57 FCR 572


case_text: In relation to the further amendment of the amended statement of claim, the applicant submitted in summary as follows: • It is important that the pleadings properly reflect the real questions raised by the proceedings, and that the Court permit the parties to make necessary amendments unless the proposed amendment is obviously futile or would cause substantial injustice for which there cannot be compensation: Abela v Giew (1964) 81 WN (Pt 1) NSW 344 at 345. • As pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 , justice is the paramount consideration in determining an application to amend pleadings. • Following directions made by the Court, samples of Termiglass were obtained from the respondent and sent to the applicant's expert, Dr Holt. The applicant suspected that the samples supplied did not accurately represent the product that was being installed. The applicant obtained samples of the respondent's product from other sources. Some of these samples, when tested, were found to fail as an effective termite barrier. • The amendments proposed to the amended statement of claim arise from matters which have come to the attention of the applicant after the commencement of the proceedings, the obtaining of samples, and issues arising from the variability of the samples. The variability in the sampling and therefore the effectiveness on such an inconsistent product is a matter that is now an issue in the proceeding, given the evidence that has been obtained to date and is still being obtained, including that there is a real difference between the samples provided by the respondent pursuant to the Court-approved regime and the evidence obtained of other examples of termiglass that have been installed. • The amended pleading also relies upon s 51A Trade Practices Act given the representations relate to future matters, namely the quality of the Termiglass to be installed. • Given that the product has been installed in over 30,000 sites in south-east Queensland there is clearly substantial public interest in ensuring that issues in these proceedings are properly litigated. • The proceedings are not old, with the first directions being made on 15 February 2008. • The proposed amendments are already encompassed by the amended statement of claim in its current form, however out of an abundance of caution and to prevent time wasted at the trial arising from possible dispute, the applicant applies to have its pleadings amended. • There is no prejudice to the respondent by allowing the amendment. • The applicant accepts that it will bear the respondent's costs of vacation of the trial dates, although Mr Peden submitted that, if the applicant is successful, it should receive its costs of the hearing of 4 June 2008. 23 Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."


case_text: Such further or other orders as the Court thinks appropriate. 2 This matter was heard by me on 4 June 2008 and again on 10 June 2008. At the conclusion of the hearing of 4 June 2008, it was clear that, from the perspective of both the applicant and Termicide Pest Control Pty Ltd ("the respondent"), the key issue was whether the Court was prepared to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion. In relation to the remaining orders sought by the applicant: • The Court has already granted leave to issue the subpoenas sought in para 1 of the amended notice of motion. The only issue outstanding in relation to these subpoenas was a return date, which could be resolved once the Court had considered whether the trial dates should be vacated; and • In the event that I was to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion, any orders as to discovery would properly be the subject of future directions in this matter. 3 During the hearing of 4 June 2008, Mr Peden for the applicant proffered an oral undertaking by the applicant in relation to contact by the applicant and its employees with clients of the respondent. Mr Looney for the respondent however submitted that any such undertaking once committed to writing should, inter alia , extend to associated entities of the applicant. 4 In relation to the proposed attendance at the premises of Vision Glass Recycling, Mr Peden also accepted that any order made by the Court should be such as to maintain confidentiality of process as contemplated in ex parte Fielder Gillespie Ltd [1984] 2 QdR 339 (cf Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228). Mr Looney submitted that any order permitting attendance at the premises of Vision Glass Recycling should contemplate attendance by independent parties. 5 I shall return to these issues later in the judgment. 6 The respondent opposed the orders sought by the applicant. However, Mr Looney for the respondent also submitted that, as it was important to the respondent that the current trial dates remain even if the Court were minded to grant leave to the applicant to further amend the amended statement of claim, the Court could nonetheless refuse to vacate the trial dates, give the respondent leave to amend its defence, and give the respondent liberty to apply in relation to any further evidence the respondent wished to lead.


case_text: Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."


case_text: I have considered this issue, but take the view that an order for indemnity costs is inappropriate in these circumstances. As a general proposition, indemnity costs are awarded to an innocent party where, inter alia , the circumstances of the case are such as to warrant the Court in departing from the usual course. There should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice (cf Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233). An example of an award of indemnity costs against a party to proceedings in circumstances involving the adjournment of a trial was David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998) where the reason for the vacation of the trial dates was the complete failure of the applicant in that case to prosecute his application including multiple failures to comply with directions of the Court.


case_title: David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998)


case_title: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537


case_title: Ex parte Fielder Gillespie Ltd [1984] 2 QdR 339


case_title: Ketteman v Hansel Properties Ltd [1987] AC 189


case_title: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128


case_title: Menzies v CRCI Pty Ltd [2007] NSWCA 118

case_text: A key issue is the extent to which the adjournment of the trial prejudices the respondent in such a way that the respondent cannot be compensated by an award of costs. Clearly the respondent will suffer prejudice from the prolongation of the litigation, which is a relevant consideration particularly where the application to vacate the trial dates takes place shortly before the trial commences (cf Menzies v CRCI Pty Ltd [2007] NSWCA 118). In relation to more substantial prejudice, Mr Looney drew my attention to affidavits of Mr Paul Jeynes, director of the respondent, sworn 19 November 2007 and 4 June 2008, where Mr Jeynes deposed, inter alia : • He had received telephone calls in February 2008 from two customers of the respondent informing him that they had been told by the applicant that the respondent's product is ineffective, and that the applicant had brought an action against the respondent, however Mr Jeynes was able to convince the customers that there was no substance to the applicant's allegations. • He was concerned that the respondent would not always know when the applicant approached the respondent's customers and made such allegations. • He was aware that the respondent had lost at least one customer since the proceedings had commenced. • He was concerned as to the possible adverse effect of these proceedings on the respondent's business, and that any adjournment of the trial would increase the risk that the respondent would lose customers. • The applicant operated on a national basis whereas the respondent operated mainly within south-east Queensland. 34 I note the concerns of the respondent and its officers which are very real, and I do not understate their anxiety. I also note that the parties to these proceedings are clearly in competition for business in south-east Queensland, and that Mr Peden submitted that the applicant was aware that one of its staff may have contacted customers of the respondent as Mr Jeynes deposed. However in relation to these points: • Notwithstanding the fact that Mr Jeynes had had the relevant telephone conversations with customers, his evidence was that he was able to convince them of the lack of merit in the applicant's claims, with the result that no damage arising from the contact by the applicant could be demonstrated. • There was no evidence that any customer had been lost to the respondent because of the claims of the applicant (as distinct from since the proceedings had commenced). • The applicant is prepared to give an undertaking in relation to informing third parties of these proceedings. • While for any litigant prolongation of litigation is undesirable, in this case the litigation has only been on foot since the end of 2007. • The application to vacate the trial dates has been made several weeks ahead of the scheduled commencement date of the trial; and • Perhaps regrettably, litigation is not uncommon in industries characterised by strong competition as this industry appears to be, and applications to clarify pleadings in litigation are also not uncommon. 35 The respondent has not demonstrated any prejudice from vacation of the trial dates for which it would not be adequately compensated by costs and an acceptable undertaking from the applicant.


case_text: Further, I accept the submission of Mr Peden that there is some public interest in having all issues raised by the applicant properly considered following adequate preparation for trial, hence justifying an adjournment of the trial dates (cf Smith v Gannawarra Shire Council (2002) 4 VR 344). I do not consider that the applicant is in any way seeking to champion the public interest in prosecuting this case, and indeed this was not the applicant's contention. Nonetheless proper resolution of the issues in dispute in this case does, in my view, have public interest implications because: • Apparently 30,000 premises in south-east Queensland have installed the respondent's product; and • Determination of issues pertaining to effective building practices in south-east Queensland is an issue of public interest. 37 In my view, the appropriate order is that the trial dates should be vacated, and that the applicant is to bear the costs of the respondent thrown away by vacation of the trial dates subject to an undertaking in a form acceptable to the respondent. 38 In light of the leave granted to the applicant to further amend its amended statement of claim, it is appropriate to make an order pursuant to O 17 of the Federal Court Rules to allow the applicant access to the premises of Vision Glass Recycling, subject to conditions as to confidentiality. In relation to this issue I also accept the submission of the respondent that access to the relevant premises by experts nominated by the applicant be confined to persons who are independent. It is also appropriate that information or knowledge gained by the independent expert and the applicant's legal representatives remain confidential.


case_text: Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths." 27 First, as his Honour pointed out in SPI Spirits , such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided and to avoid a multiplicity of proceedings. It is regrettable that the applicant has sought to further amend its statement of claim only a few weeks out from trial, however this does not derogate from the principle that it is in the interests of justice that the real questions in controversy be decided at trial. I note further that the applicant has a new Counsel who has brought a "fresh legal mind" to these proceedings, which appears to be at least an explanation, if not a justification, for the delay in seeking to amend the pleadings at this late stage. 28 Second, while trial is listed to commence two weeks hence, I note the observations of Edmonds J as to amendments sought to be filed by the applicant at a time when there remains the opportunity for the respondent to file a proper defence. Even leaving aside for the moment the issue of whether the trial dates should be vacated, the submission of the respondent that the trial dates should remain unaltered notwithstanding any order as to amendment of the pleadings indicates that, from the respondent's perspective: • there remains sufficient time for it to file a proper defence in this matter; and • it would not be prejudiced in respect of its own pleadings by the further amendment of the amended statement of claim. 29 Third, it is not submitted by the respondent that the proposed amendments are so obviously futile that they would be struck out if they had appeared in the original pleading. 30 Fourth, I am not satisfied that any prejudice to the respondent arising from amendment to the pleadings cannot be compensated by costs and the undertaking proffered by the applicant. As clearly emerged from Mr Looney's submissions at the hearing of 4 June 2008, the real concern of the respondent arising from amendment to the pleadings is the adjournment of the trial and prolonging of the litigation. I turn to that issue now.


case_text: In relation to the further amendment of the amended statement of claim, the applicant submitted in summary as follows: • It is important that the pleadings properly reflect the real questions raised by the proceedings, and that the Court permit the parties to make necessary amendments unless the proposed amendment is obviously futile or would cause substantial injustice for which there cannot be compensation: Abela v Giew (1964) 81 WN (Pt 1) NSW 344 at 345. • As pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 , justice is the paramount consideration in determining an application to amend pleadings. • Following directions made by the Court, samples of Termiglass were obtained from the respondent and sent to the applicant's expert, Dr Holt. The applicant suspected that the samples supplied did not accurately represent the product that was being installed. The applicant obtained samples of the respondent's product from other sources. Some of these samples, when tested, were found to fail as an effective termite barrier. • The amendments proposed to the amended statement of claim arise from matters which have come to the attention of the applicant after the commencement of the proceedings, the obtaining of samples, and issues arising from the variability of the samples. The variability in the sampling and therefore the effectiveness on such an inconsistent product is a matter that is now an issue in the proceeding, given the evidence that has been obtained to date and is still being obtained, including that there is a real difference between the samples provided by the respondent pursuant to the Court-approved regime and the evidence obtained of other examples of termiglass that have been installed. • The amended pleading also relies upon s 51A Trade Practices Act given the representations relate to future matters, namely the quality of the Termiglass to be installed. • Given that the product has been installed in over 30,000 sites in south-east Queensland there is clearly substantial public interest in ensuring that issues in these proceedings are properly litigated. • The proceedings are not old, with the first directions being made on 15 February 2008. • The proposed amendments are already encompassed by the amended statement of claim in its current form, however out of an abundance of caution and to prevent time wasted at the trial arising from possible dispute, the applicant applies to have its pleadings amended. • There is no prejudice to the respondent by allowing the amendment. • The applicant accepts that it will bear the respondent's costs of vacation of the trial dates, although Mr Peden submitted that, if the applicant is successful, it should receive its costs of the hearing of 4 June 2008. 19 In relation to the application for the vacation of the hearing dates, the applicant submitted in summary as follows: • If the Court granted the applicant leave to further amend the amended statement of claim, the matter will not be ready for a hearing commencing on 23 June 2008. • Even without the amendment to the pleadings the applicant is not ready because the applicant has not concluded its evidence due to problems in relation to the quality of the termites connected with the testing of the respondent's samples by the applicant's expert. • The findings of their Honours in JL Holdings are relevant to the determination of the vacation of hearing dates. • The Court should order the hearing dates vacated: o to allow the amended pleadings and the real issues raised by the amended pleadings to be properly litigated and justice to be properly attained; o to allow completion of scientific evidence; o in view of the public policy importance of the issues raised by this litigation; o because the principal issues that are raised by the amended pleadings have arisen as a consequence of matters discovered since the evidence in chief was being obtained and because of the sample provided by the respondent being apparently inconsistent with the product actually being installed; o because of the limited time that has elapsed to date in preparing the matter for hearing; o because no prejudice can be demonstrated by the respondent in permitting the hearing date to be vacated. 20 In relation to inspection of the premises pursuant to O 17, the applicant submitted in summary that: • the proposed further amended statement of claim asserted the inability of the manufacturing processes used by the respondent to consistently produce commercial quantities of product being installed by the respondent; • it was clear that the samples obtained of the Termiglass installed, differs to the product which had been provided by the respondent; and • to resolve the issues of how such difference occurs and the issues raised by the further amended statement of claim the orders sought under O 17 should be allowed. 21 In relation to the further amendment to the amended statement of claim the respondent submitted in summary as follows: • The case sought to be made against the respondent by the applicant at all times until 30 May 2008 was that Termiglass did not work and that, as a result, statements by the respondent that it did work were misleading and deceptive. The amendments to the pleadings sought by the applicants create a fundamentally different controversy between the parties - namely that: o Termiglass has different specifications from that which are asserted by the respondent; o the process of production used by a third party manufacturer of the respondent is deficient; o the product sold by the respondent does not conform to specifications of Termiglass and, in those circumstances, Termiglass does not do, or does not always do, what the respondent said it does; o the representations relate to future matters within the meaning of s 51A Trade Practices Act . • The justice of the case supports the refusal of the relief sought by the applicant because, inter alia : o it is clear that the alleged issue of variability of the particle size in Termiglass was known by those who control the applicant at least by January 2006, well before proceedings were commenced by the applicant; o notwithstanding this knowledge the applicant chose to formulate its case in the way it did, and sought to collect and put on evidence consistent with that case; o the applicant accepted in a directions hearing that alleged differences between the product being installed and the products that were the subject of the samples provided pursuant to the assessment procedures was a matter for trial; o the applicant only sought to amend its pleadings five weeks before trial; o there is now some evidence that the proceedings may be actually causing detriment to the respondent; o there is no justification for the delay of the applicant in relation to its proposal to plead s 51A. 22 The respondent opposed the proposed adjournment of the trial on the same basis that it opposed the proposed amendment to the pleadings. Further the respondent submitted that, even if the Court did grant the applicant leave to amend its pleadings, no adjournment of the trial should be granted nor should it be given the opportunity to adduce further evidence. 23 Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths." 32 I have considered the respondent's submission that, even with the pleadings amended, the trial can still proceed on the 23 June 2008. In my view it is unlikely that either party would be properly prepared for trial by that date, given that the respondent will need to consider whether to amend its defence, and fresh orders as to discovery and further evidence as well as new trial directions may be necessary. Although the proceedings are currently listed for hearing for five days commencing 23 June 2008, as Kirby J pointed out in JL Holdings , [1997] HCA 1 ; 189 CLR 146 at 169-170 departures from a Court-ordered timetable including orders as to trial dates are not decisive, as such orders are servants of justice.


case_title: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394