FEDERAL COURT OF AUSTRALIA

Factory 5 Pty Ltd (in liq) v State of Victoria[2011] FCAFC 77

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    During the course of argument yesterday, counsel for the respondent was invited by the Court to apply to amend its notice of contention. This arose because the Court expressed concern as to whether the primary judge’s finding that the parties had made a legally binding contract on 23 December 2004 was susceptible of argument.

2    Today the respondent sought leave to rely on an amended notice of contention raising all issues directed to the existence of such a contract, including arguments based on the uncertainty of the terms that his Honour found were part of the contract. The appellant opposed such a broad amendment, contending that it should be limited only to the question of whether the contract was void for uncertainty, because the term found by the primary judge in par [127] of his reasons was too uncertain.

3    Having regard to the matters before us, and the way the parties have argued the appeal, we are of opinion that the question of contractual formation should not be fragmented or confined. This is because it is necessary to consider this issue in its full context on the evidence before his Honour, and having regard to whether it can be shown, in such a context, that his Honour erred. For these reasons, we think that the leave to amend its notice of contention, which we granted to the respondent yesterday, extended to all issues directed to the question of whether a binding contract had ever been entered into between the appellant and Melbourne 2006 Commonwealth Games Corporation (which has been succeeded by the respondent) that have been raised in the proposed amended notice of contention now before the Court (including whether the alleged contract was void for uncertainty).

4    The potential for injustice by limiting the issues that the respondent can argue on its amendment far outweighs the prejudice to either party from a slight delay in the further hearing of the appeal. We accept, as did the respondent, that the appellant will need to reconsider the materials in the appeal papers in order to consider whether they need supplementation after seeing a proper written argument articulating the basis of the respondent’s amendments. We would confirm that the order for costs that we made yesterday covers the additional costs thrown away by the need to adjourn and to amend the appeal papers and arguments.

Associate:

Dated:    7 June 2011