FEDERAL COURT OF AUSTRALIA

Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 2) [2011] FCA 55

THE COURT ORDERS THAT:

1.    The notice of motion filed by the applicant on 21 January 2011 be dismissed.

2.    The respondent be given leave to amend paragraphs 16, 18(b)(iv) and 18(d)(ii) in accordance with the draft Amended Defence exhibited to the Affidavit of Alexander John Baxter filed 24 January 2011.

3.    (a)    the respondent be given leave to issue a subpoena for production to Versacold Logistics Limited (“Versacold”) in the form annexed to the Respondent’s Outline of Argument submitted to the Court on 1 February 2011;

(b)    the subpoena for production be served on Versacold on or before 11 February 2011;

(c)    Versacold be directed to produce the documents subject to the subpoena for production to the Brisbane Registry of the Court on or before 23 February 2011;

(d)    the parties’ legal representatives be given leave to inspect and photocopy the documents produced by Versacold pursuant to the subpoena for production.

4.    The respondent file and serve further and better particulars of paragraph 18(d)(ii) of the Defence by 4.00 pm on 2 March 2011.

5.    The issue of costs be dealt with on a date to be fixed.

6.    The matter be listed for further directions on a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The applicant and the respondent to these proceedings have each filed a notice of motion. In substance, the applicant seeks an order that para 18(d)(ii) of the respondent’s Defence filed 2 August 2010 be struck out. This notice of motion is opposed by the respondent. In turn the respondent seeks the leave of the Court to amend paras 15, 16, 18(b) and 18(d) of its Defence. The applicant does not oppose the amendment to para 15 of the Defence (by which amendment the respondent admitted the existence of a conversation it had previously denied), nor to the amendments to paras 18(b)(i) and (ii). The applicant does however oppose the grant of leave in respect of the other amendments sought by the respondent, namely amendments to paras 16, 18(b)(iv) and 18(d)(ii) of the Defence.

2    Submissions at the hearing primarily addressed the orders sought by the respondent. The reason for this was that if the Court found in favour of the respondent and granted leave to the respondent to amend its Defence in the terms sought, the applicant accepted that the appropriate order in respect of its notice of motion was that it be dismissed. Submissions were however also made by both parties in respect of orders sought by the applicant.

3    At the hearing Mr Drew for the respondent handed up a draft form of subpoena annexed to his written outline of argument. No formal application was made by the respondent for the Court to grant leave to issue a subpoena. Order 27A rule 2(1) of the Federal Court Rules provides that a subpoena must not be issued without the leave of the court or a judge. However at the end of the hearing Mr Drew submitted that, in fact, he sought to make an informal oral application for the leave of the Court to issue a subpoena to the company Versacold Logistics Ltd (“Versacold”). The material described in the subpoena was relevant to the proposed amendment to para 18(d)(ii) of the Defence. The respondent’s application for the Court to grant leave to issue a subpoena was opposed by the applicant.

4    Before turning to a consideration of the orders sought it is useful first to consider the background to the relevant notices of motion and the nature of the amendments sought by the respondent to its Defence.

BACKGROUND

5    The applicant operates a business as a broker between prawn farms and major prawn retailers in Australia and as a prawn wholesaler. The respondent owns and operates a prawn farm situated at Ayr in North Queensland. The applicant and respondent were parties to a contract in respect of the supply of frozen prawns by the respondent. The applicant claims damages from the respondent for breach of contract, or alternatively for loss and damage under s 82 of the Trade Practices Act 1974 (Cth) (“TPA”), in addition to interest and costs.

6    In summary, by Statement of Claim filed 3 June 2010 the applicant claimed as follows:

    In late 2007, negotiations were conducted by Mr Warren Lewis for the applicant and Mr Con Mitris for the respondent in respect of the supply of frozen prawns by the respondent to the applicant.

    In para 15 of the Statement of Claim the applicant pleaded:

15 Between June 2007 to September 2007 the Respondent, by Mr Con Mitris, contacted the Applicant, by Mr Warren Lewis, with a view to having the Applicant purchase prawns from the Respondent, alternatively act as a broker for a sale by the Respondent directly to other purchasers.

Particulars

(a) the contact was by telephone;

(b) the contact occurred every three-four weeks from June until September 2007; and

(c) the words used by Mr Mitris were to the effect of asking whether the Applicant could help the Respondent move some of the Respondent’s frozen stocks.

    In particular, the applicant was interested in an arrangement whereby prawns supplied by the respondent were purchased by the applicant for on-sale to Woolworths.

    The terms and conditions of the agreement between the applicant and respondent included a provision that the frozen prawns would be reasonably fit for the purpose of being on-sold to Woolworths, and would meet Woolworths’ specifications.

    In December 2007 the applicant faxed orders to the respondent for the purchase of frozen prawns, for delivery to the intermediary entity Versacold in Victoria and New South Wales.

    The applicant paid the respondent the sum of $691,701.96 for the frozen prawns.

    From about March 2008 some of the frozen prawns were distributed to Woolworths supermarkets for sale to consumers. Upon being thawed however it became apparent that those prawns did not meet Woolworths’ specifications because they were difficult or impossible to peel and did not have a sweet flavour.

    Woolworths rejected the entire stock of prawns it had received and claimed $427,084.53 from the applicant.

    The applicant conducted tests of the remaining stock of prawns and determined that those prawns, inter alia, did not satisfy the requirements of the specifications, were not fit for the purpose of being sold, and were unsaleable.

7    The applicant claimed that, by reason of the respondent’s conduct, the applicant has suffered loss and damage in the sum of $328,421.93.

8    The respondent filed a Defence on 3 August 2010. In summary, the respondent denied liability for breach of contract or of the TPA, and denied that the applicant had suffered loss and damage as claimed or at all. In particular, and so far as relevant to the current interlocutory proceedings, the respondent pleaded as follows:

15. The Respondent denies paragraph 15 of the Statement of Claim on the basis that the allegations pleaded therein are untrue, the true facts of the matter being that in late 2007, the Applicant, by Mr Warren Lewis, contacted the Respondent, by Mr Con Mitris with a view to arranging for the Applicant to purchase prawns from the Respondent.

Particulars

(a) the contact was by telephone;

(b) the contact occurred periodically in the later part of 2007;

(c) the words used by Mr Lewis were to the effect that Mr Lewis wanted to purchase prawn stock from the Respondent as he did not have enough stock to sell over the 2007 Christmas period.

16. The Respondent denies paragraph 16 of the Statement of Claim on the basis that the allegations pleaded therein are untrue, the true facts of the matter being as set out in paragraph 15 above.

…

18. As to paragraph 18 of the Statement of Claim:

(a) admits that in 2007 the Applicant and the Respondent conducted negotiations about the supply of prawns by the Respondent to the Applicant;

(b) says that the true facts of the matter are as follows:

(i) in the later part of 2007 the Applicant, by Mr Warren Lewis, contacted the Respondent, by Mr Con Mitris with a view to arranging for the Applicant to purchase prawns from the Respondent. The Respondent repeats and relies upon the particulars at paragraph 15 above.

(ii) in our [sic] about August/September 2007 during subsequent telephone calls, Mr Mitris informed Mr Lewis that the Respondent had 80 tonnes of frozen medium prawns (of size 21/30) available to sell to the Applicant;

(iii) in our [sic] about October/November 2007 during subsequent telephone calls, Mr Mewis and Mr Mitris agreed that the Applicant would purchase from the Respondent 50 tonnes of frozen medium prawns (of size 21/30), 10 tonnes of frozen large prawns (of size 10/15) and one-half of the fresh product expected to be produced by the Respondent in December 2007;

(iv) at no stage did the Applicant advise the Respondent that the prawns were to be supplied to Woolworths;

(v) at a meeting at the Respondent’s farm on 9 November 2007 Mr Lewis on behalf of the Applicant and Mr McPherson on behalf of the Respondent:

a. Mr Lewis provided Mr McPherson with a copy of an Australian Tiger Prawn Colour Chart produced by the Applicant;

b. No discussion occurred in relation to the requirements of Woolworths as pleaded in paragraph 18 (c) or at all;

c. Mr Lewis inspected approximately 48 cartons and multiple batch codes of the prawn product that the Applicant wished to purchase from the Respondent;

(vi) In or about November/December 2007, the Applicant agreed to purchase the following prawns from the Respondent:

…

(vii) it was a term of the purchase agreement that unless the Applicant notified the Respondent to the contrary on the day of delivery of the goods and such notification is confirmed in writing within two days, the prawns shall be deemed to have been accepted by the Applicant as being in good condition;

(viii) the Applicant did not provide notification to the Respondent in accordance with paragraph 18 (b)(vii) above;

(ix) the Respondent did not give any warranty that the prawns supplied pursuant to the purchase agreement were fit for any particular purpose;

(x) The Applicant agreed to pay the Respondent for the prawns supplied pursuant to the purchase agreement within seven (7) days of the date of the Respondent’s invoice;

(xi)…

(xii) at the time of the purchase agreement, the Respondent was not a certified supplier of prawns to Woolworths and the prawns were not supplied to the Applicant pursuant to any Woolworths Quality Assurance Specifications;

(xiii) in or about November 2007 and following the purchase agreement, the Respondent was invited by Woolworths to become a certified supplier of prawns to Woolworths by completing the Woolworths Quality Assurance Program;

(xiv) the Respondent admits that on 12 November 2007 the Respondent sent by email to the Applicant a completed copy of the Woolworths Quality Assurance registration;

(xv) the Woolworths Quality Assurance Specifications could not and did not apply for the prawns sold to the Applicant as they had been processed prior to any certification being given;

(xvi) the Respondent did not represent to the Applicant that the prawns subject to the purchase agreement complied with the Woolworths Quality Assurance Specifications;

(xvii) the Respondent did not warrant that the prawns for [sic] fit for any particular purpose.

(c) for these reasons denies the allegations in paragraph 18 of the Statement of Claim as untrue;

(d) further, the Respondent says:

(i) the prawns supplied by the Respondent to the Applicant pursuant to the purchase agreement were in good condition and were of a quality acceptable by the general market;

(ii) any characteristics in the prawns which affected the quality of the prawns (which characteristics are not admitted by the Respondent) or deterioration of the prawns occurred whilst the prawns were in the Applicant’s possession as a result of:

a. inappropriate handling and/or storage of the prawns by the Applicant; and/or

b. the Applicant’s delay in on-selling the prawns to third parties.

9    On 21 October 2010 the applicant filed a notice of motion in which the applicant sought orders from the Court that, inter alia, the respondent provide particulars of para 18(d)(ii) of the Defence, including:

    full particulars of the allegation of the “inappropriate handling and/or storage” of the prawns by the applicant; and

    full particulars of the allegation of the “Applicant’s delay in on-selling” the prawns.

10    By the same notice of motion the applicant also sought an order that para 18(d)(ii) of the Defence be struck out if the respondent failed to provide particulars in compliance with Court order, and that on or before 8 November the parties file any application for third party discovery.

11    Further, by notice of motion filed 27 October 2010 the respondent sought orders for security for costs, and that the trial dates – then 13-16 December 2010 inclusive – be vacated and the trial be listed for a four day trial in 2011.

12    On 1 November 2010 Dowsett J made extensive orders, both in respect of the further and better particulars sought by the applicant and in respect of timetabling of the matter. His Honour took the view that the respondent could not simply plead an inappropriate handling and/or storage of the prawns without saying in what respect it was inappropriate (TS 1 November 2010 p 27 ll 43-45). However his Honour was not satisfied that an order should be made striking out para 18(d)(ii) of the Defence (TS 1 November 2010 p 29 ll 22-23).

13    At the hearing before his Honour, counsel for the respondent informed his Honour that the respondent was “in the process of getting disclosure from Woolworths” (TS 1 November 2010 p 32 ll 1-4).

14    On 18 November 2010 the respondent filed further and better particulars of para 18(d) of the Defence. In particular, in relation to para 18(d)(ii)b of the Defence the respondent stated:

2. As to paragraph 18(d)(ii)b. of the Defence, the delay in on-selling the prawns occurred as

(a)    the prawns were purchased by the Applicant in or about November/December 2007;

(b)    the prawns were allegedly not distributed to Woolworths Supermarkets until about March 2008;

(c)    the prawns were allegedly not rejected by Woolworths until dates between March 2008 and August 2008.

15    Paragraph 3 of the further and better particulars also provided:

3. The Respondent will provide further particulars of the allegations upon complete disclosure of documents relative to handling and storage of prawns by the Applicant, its servants and/or representatives and third parties.

16    In November 2010 the proceedings were transferred to my docket. On 1 December 2010 the parties appeared before me for directions. At that hearing the applicant submitted that the particulars in the Defence filed by the respondent were materially worse than had existed before, on the basis that the particulars claimed the possibility that an unknown third party stored the prawns inappropriately in a manner the respondent did not specify which caused an unidentified type of contamination to the prawns. In light of that uncertainty the applicant submitted that it was not possible to finalise witness statements. The respondent in turn submitted that the particulars narrowed the issues, that it sought the leave of the Court for a subpoena to be issued requiring Woolworths to provide information, and that the delay in finalising the Defence arose because a former director of the respondent with important information was overseas at the time the Defence was finalised. I formed the view that the respondent had not complied with the order of Dowsett J of 1 November 2010 because, as was clear from para 3 of its further and better particulars of the Defence, it had not finalised further and better particulars (TS p 60 ll 11-22). In the circumstances of the case however I ordered that a subpoena be issued to Woolworths in terms sought by the respondent, on the basis that there was adjectival relevance to the material sought by subpoena.

17    Included in my orders of 1 December 2010 was para 6 as follows:

The respondent file and serve a notice of motion to amend the defence by insertion of amendments to para 18(d)(ii) (if any) by 4.00 pm on 21 January 2011.

THE NOTICES OF MOTION

18    On 21 January 2011 the applicant filed a notice of motion seeking orders that para 18(d)(ii) of the Defence be struck out, and costs.

19    On 24 January 2011 the respondent filed a notice of motion seeking the following orders:

1.    That pursuant to Order 13 of the Federal Court Rules, the Respondent be granted leave to amend the following paragraphs of its Defence dated 2 August 2010:

a.    Paragraph 15;

b.    Paragraph 16;

c.    Paragraph 18(b); and

d.    Paragraph 18(d);

in accordance with the draft Amended Defence exhibited to the Affidavit of Alexander John Baxter sworn 24 January 2011.

2.    That the parties’ costs of and incidental to this Notice of Motion be reserved.

3.    Such further or other Order as the Court deems fit.

20    So far as relevant, paras 15, 16, 18(b) and 18(d) as proposed by the respondent read as follows:

15. The Respondent admits paragraph 15 of the Statement of Claim.

16. The Respondent denies paragraph 16 of the Statement of Claim on the basis that the allegations pleaded therein are untrue, the true facts of the matter being as set out in paragraph 15 above. that between June through October 2007 the Applicant, by Mr Warren Lewis informed the Respondent, by Mr Con Mitris that:

(a) It was too early in the year for Mr Lewis to know whether the requirements of the Applicant’s customers were such that he could assist the Respondent by purchasing the frozen prawns for on-sale to the Applicant’s customers;

(b) Mr Mitris should contact Mr Lewis later in the year to see if the Applicant was then able to assist the Respondent to move the Respondent’s frozen prawn stock.

…

18. As to paragraph 18 of the Statement of Claim:

…

(b) says that the true facts of the matter are as follows:

(i) in the later part of 2007 the Applicant, by Mr Warren Lewis, contacted the Respondent, by Mr Con Mitris with a view to arranging for the Applicant to purchase prawns from the Respondent. The Respondent repeats and relies upon the particulars at paragraph 15 above.

(ii) in our [sic] about August/September 2007 during subsequent telephone calls, Mr Mitris informed Mr Lewis that the Respondent had 80 tonnes of frozen medium prawns (of size 21/30) available to sell to the applicant.

(iii) …

(iv) at no stage did the Applicant advise the Respondent that the prawns were to be supplied to Woolworths;

(iv) in or about October/November 2007:

a. Mr Lewis asked Mr Mitris whether the Respondent was an accredited supplier of prawns to Woolworths Limited (“Woolworths”);

b. Mr Mitris advised Mr Lewis that the Respondent was not an accredited supplier of prawns to Woolworths;

c. Mr Lewis advised Mr Mitris that Mr Lewis would speak to Woolworths about accepting the stock as he had previously sold prawns to Woolworths from suppliers that were not Woolworths accredited;

d. During a subsequent telephone conversation, Mr Lewis contacted Mr Mitris and asked to inspect the Respondent’s prawn stock before agreeing the [sic] purchase the stock.

…

(c) …

(d) further, the Respondent says:

(i) the prawns supplied by the Respondent to the Applicant pursuant to the purchase agreement were in good condition and were of a quality acceptable by the general market;

(ii) any characteristics in the prawns which affected the quality of the prawns (which characteristics are not admitted by the Respondent) or deterioration of the prawns occurred whilst the prawns were in the Applicant’s possession and/or the possession of the Applicant’s agents and/or representatives and/or third parties after the prawns had left the possession and/or control of the Respondent as a result of:

(a) inappropriate handling and/or storage of the prawns by the Applicant and/or the Applicant’s agents and/or third parties who had possession of the prawns; and/or

(b) the Applicant’s delay in on-selling the prawns to third parties and/or delays on the part of third parties in selling the prawns to consumers.

(all tracking replicated from original)

SUBMISSIONS OF THE PARTIES

21    At the hearing before me last Tuesday Mr Drew for the respondent submitted in summary as follows:

    At the time of preparation of the respondent’s Defence, Mr Con Mitris (a key witness for the respondent) was not in Australia. The Defence was therefore prepared without the benefit of any conference directly with Mr Con Mitris. This is particularly relevant to the amendments proposed to para 16 and para 18(b)(iv).

    The proposed amendment to para 18(b)(iv) sets out what the applicant actually says occurred, and is performing its true role as a pleading. The proposed amendment also reflects material in the witness statement filed by Mr Mitris.

    In respect of its proposed subpoena to Versacold and any imputation of delay on the part of the respondent in seeking material from Versacold, it is clear that the applicant did nothing for two years from June 2008 until June 2010 when litigation was commenced. Further, it appears from the submissions of the respondent it was not until the respondent had the opportunity to examine documents produced by Woolworths that the respondent realised that key temperature and storage records were actually held by Versacold, not Woolworths.

    From evidence filed by the applicant it appears that the applicant has had access to freezer records of Versacold.

    The respondent delivered particulars of para 18(d) of the Defence on 18 November 2010, several months ago. At the same time the respondent alerted the applicant to the possibility that it would seek to amend the Defence. The possibility that the respondent would seek to amend the Defence in terms of, in summary, inappropriate storage of the prawns by third parties is no surprise to the applicant.

22    Mr Cowen for the applicant submitted in summary as follows:

    In line with reasoning of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the respondent has left it too late to amend the Defence. The substantive trial is listed to commence in five weeks.

    The amendments proposed by the respondent raise completely new issues. Paragraph 16 presents a completely different version of the relevant conversation from the version upon which the respondent previously relied. If leave is given to the respondent to amend its defence the applicant will need time to file further supplementary evidence, to which the respondent may also seek to reply.

    The trial in these proceedings has already been adjourned once.

    Costs would not compensate the applicant for a further adjournment of the trial.

    The applicant would be prejudiced by the need to meet the new allegations within a very short time frame.

    Although these proceedings have only been on foot since June 2010, a comparison may be drawn with the litigation in Aon where less than two years had passed from commencement of litigation to trial in a matter involving millions of dollars and many parties.

    The respondent has not provided a satisfactory explanation for the delays in seeking amendments to the Defence, in light of the facts that:

    Mr Con Mitris is the son of the sole director of the respondent;

    the respondent knew that the issue of storage of the prawns was relevant, that the prawns had been in the possession of Woolworths in 2008, and that Versacold had also had possession of the prawns. It is incorrect to say that the possibility of inappropriate storage of the prawns is a recently-discovered issue.

    A great deal of evidence, including expert evidence, has already been filed in respect of problems which assail prawns and prawn farming.

    The proposed amendments to para 18(d) reflect the further and better particulars filed by the respondent, and are very vague and difficult to meet.

    There is no reason to expect that, even should the Court grant leave to issue a subpoena to Versacold as sought by the respondent, any information obtained by the respondent from Versacold would assist in clarifying the particulars of the respondent’s Defence. The respondent is continuing on a “fishing expedition”, at a very late stage of the proceedings.

    The applicant maintained its objection to para 18(d)(ii) in its unamended form, because it is not a proper pleading and is unsupported by proper particulars.

    The applicant opposes the Court granting leave to issue a subpoena to Versacold.

CONSIDERATION

23    Order 13 rule 2 of the Federal Court Rules permits the Court, at any stage of any proceeding, to order that any party have leave to amend any document in the proceeding in such manner as the Court thinks fit. A notice of motion brought by a party to litigation to amend pleadings close to the hearing date requires a very careful consideration. It is trite to observe that dismissal of the notice of motion will invariably affect the manner in which the moving party presents its case at final hearing, potentially to the prejudice of that party. However it is equally clear that an order in favour of the moving party potentially prejudices the other party to the litigation, which party is now required to meet an amended case.

24    The balance the trial judge is required to bring in considering such an application close to the trial was considered in detail by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. In summary, the Court in Aon found as follows:

    An award of costs to compensate the other party for the inconvenience of the trial dates being vacated as a consequence of the amendment to the pleadings is not a panacea: [5], [100];

    The Court should recognise any ill-effects of resultant delay upon the parties to the proceedings and the effects on other litigants who are also seeking a resolution to their proceedings: [101];

    The nature and importance of the amendment to the party applying for the amendment cannot be overlooked: [102];

    The exercise of the discretion requires an explanation to be given where there is delay in applying for amendment: [102]-[103]. The party seeking the amendment will also need to bring the circumstances giving rise to the amendment to the Court’s attention, so that they may be weighed against the effects of any delay: [103];

    The nature of the amendment requires consideration, including whether they introduce new and substantial claims: [104];

    An inference drawn by the Court that the raising of new claims not previously agitated is because of a deliberate tactical decision not to do so militates against the grant of leave to amend pleadings: [4];

    There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates: [102]. Issues of case management in the judicial system are not to be disregarded – it is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings: [5]-[6], [113];

    The timing of the application for amendment is a salient issue: [106]. Limits will be placed on the ability of parties to effect changes to their pleadings, particularly if litigation is advanced: [112];

    An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement: [111].

25    Aon has been the subject of extensive consideration in this Court. So, for example, in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 the Full Court observed at [51]:

Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.

26    This observation was endorsed by a Full Court, differently constituted, in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118.

27    In the present case the amendments sought by the respondent to para 16 and para 18 of the Defence, and which remain in contention, are quite distinct. Proposed amended para 16 and para 18(b)(iv) are clearly referable to evidence of Mr Con Mitris, in particular evidence in Mr Con Mitris’ witness statement filed 24 January 2011. Proposed amended para 18(d)(ii) raises separate issues of care and control of the prawns at a relevant time, the preciseness with which the proposed amendment is drafted, and is also relevant to the issue whether the Court should grant leave to issue a subpoena to Versacold.

28    In this case I am prepared to grant leave to the respondent to amend paras 16, 18(b) and 18(d) of its Defence in the terms it has sought. I have formed this view for the following reasons.

29    First, while the trial is relatively imminent, the circumstances of this case are not comparable with those in Aon where the relevant party sought extensive amendment of the pleadings after the commencement of a lengthy trial. A four day trial in these proceedings is listed to commence on 14 March 2011, five weeks from now. The applicant has made submissions that, in summary, the effect of leave being provided would result in the vacation of the trial dates, however while adjournment is a distinct possibility, at this stage I am not persuaded that it is an inevitable consequence of a decision in the respondent’s favour. This is because:

    The evidence of Mr Con Mitris, to which the proposed amendments to para 16 and para 18(b)(iv) relate, was filed on 24 January 2011. Presumably, the applicant has been in a position to give instructions to its solicitors in respect of Mr Mitris’ evidence since then, should it choose to do so.

    Similarly, the further and better particulars to which the proposed amendment to para 18(d)(ii) relates were filed on 18 November 2010. While Mr Cowen for the applicant made lengthy submissions before me, both on 1 December 2010 and 1 February 2011, to the effect that the proposals are vague to the point of meaningless and potentially could apply to any third party, it appears from both the material before the Court and the submissions of the parties that the only parties possibly in possession of the prawns at the relevant time (other than the applicant and the respondent) were Woolworths and Versacold. Depending on the nature of records in the possession of Versacold and the information which Versacold is in a position to disclose, the applicant may wish neither to file an amended reply nor file additional evidence.

30    Second, even if it becomes clear that the vacation of the trial dates in these proceedings is necessary, I am not persuaded that this consequence would either unduly prejudice the applicant or affect the case-load of the Court so as to impact adversely on other litigants before the Court. I make this observation in light of the facts that:

    This is a trial of only four days. Unlike, for example, in Aon, it is not a hearing scheduled over several weeks, the relisting of which would invariably cause difficulties both to the Court, and to the parties.

    The order of Dowsett J adjourning the trial on the previous occasion was made in circumstances where the then-listed dates were inconvenient to both the applicant and the respondent (TS 1 November 2010 p 21 ll 20-24). Accordingly, I draw no adverse inference from the previous vacation of the trial dates in considering the possibility that the trial could again be postponed.

    As the docket judge, I am in a position to hear the matter in June or July 2011.

    The events the subject of the litigation occurred in late 2007 and early 2008. Notwithstanding this, the substantive application was not commenced by the applicant until mid-2010. While the applicant having commenced proceedings is indubitably entitled to its day in Court, time does not appear to have been a critical factor to the applicant in respect of prosecuting its claim. There is no material before the Court to support a finding that the injustice would accrue to the applicant should the trial be postponed.

    In any event, at the hearing before Dowsett J on 1 November 2010, while the applicant expressed a preference for the matter to be heard as soon as possible, the applicant was unable to point to any particular prejudice to the trial being held mid-2011 (TS 1 November 2010 p 22 ll 22-23).

31    Third, I accept the submission of Mr Drew for the respondent in respect of the proposed amendments to para 16 and para 18(b)(iv) that the amendments actually reflect the case of the respondent, as indicated in the witness statement of Mr Con Mitris which has already been filed. It is desirable, if possible, that the respondent’s Defence actually reflect the position it maintains.

32    Fourth, that it was not possible to obtain evidence from Mr Con Mitris at an earlier stage of the proceedings, and seek amendment to the Defence, is perhaps surprising in light of the fact that Mr Con Mitris is the son of the sole director of the respondent. However this explanation is consistent with the timing of the filing of the witness statement of Mr Con Mitris. I accept the submission of Mr Drew that Mr Con Mitris has been overseas at relevant times and that it has been difficult to obtain his evidence until recently.

33    Fifth, while in my view there is merit to the submission of the applicant that the proposed amendments to para 18(d)(ii) could encompass a wide range of parties and circumstances, nonetheless the respondent has submitted that, following production of documents by Woolworths pursuant to subpoena, it now knows that the prawns were in the possession of Versacold during the six months after sale (TS 1 February 2011 p 16 ll 20-29). In light of that submission, while the proposed amendment could be drafted with more precision, I am not persuaded that it contemplates as infinite a set of either parties or circumstances as submitted by the applicant, or that it is so vague as to be meaningless. In my view however, the respondent should clarify its position once it has the opportunity to examine material produced by Versacold and accordingly I will order the respondent to again file and serve further and better particulars in relation to para 18(d)(ii) of the Defence at that time.

34    Further, while in my view the possibility that Versacold had possession of the prawns at the relevant time has been information apparently available to the parties during the course of these proceedings, particularly in light of evidence before the Court, nonetheless I note the respondent’s submission that this circumstance was only confirmed following production of documents by Woolworths in December 2010. While a formal application for leave of the Court to issue a subpoena to Versacold would in my view have been both proper and preferable rather than an oral application at the hearing last week, this does not of itself disentitle the respondent to either a hearing in respect of the subpoena or an order.

35    Sixth, there is in my view no inference to be drawn that the timing of the respondent’s application to amend the Defence is a deliberate tactic on the part of the respondent, or in any way motivated by anything other than a wish by the respondent to present a comprehensive Defence in these proceedings.

36    Seventh, I consider that any prejudice suffered by the applicant on these facts in respect of leave granted by the Court to allow amendments to the Defence would be significantly outweighed by the prejudice to the respondent by a refusal to grant such leave. In my view, the circumstances of this case do not warrant such a refusal, although I will seek submissions by the parties as to where the costs of the respective notices of motion should fall.

37    Finally, the applicant has made extensive submissions claiming that the conduct of the respondent in relation to seeking information from both Woolworths and now Versacold is no more than a fishing exercise. On balance, however, I consider that the conduct of the respondent (including its present application for leave in respect of a subpoena) does not constitute “fishing”, in the sense of the respondent having made bare allegations without the necessary basis to support them and the subpoena being the mechanism whereby the respondent hopes to find something which will enable it support those allegations (cf Jilani v Wilhelm (2005) 148 FCR 255 at [113]). The reason I take this view is because, in summary:

    The respondent denies liability for breach of contract or the TPA in respect of the condition of the prawns it supplied.

    The prawns were not in the possession of the respondent at all relevant times.

    There is evidence before the Court that an agent of the applicant had examined a sample of the prawns in November 2007 – that is, before the prawns left the possession of the applicant – and that they exhibited no signs of deterioration.

    The issue of temperature control of the prawns is potentially an issue of importance. It appears that the only party with relevant temperature records is Versacold.

    While the respondent seeks information from Versacold to substantiate this aspect of its Defence, in my view it is not a hopeful exercise on the part of the respondent to support a bare allegation.

38    At the hearing Mr Drew for the respondent submitted that the respondent had sought records from Versacold but that Versacold required a subpoena before it was prepared to provide such records. The material sought by the respondent is described in the draft subpoena, attached to the Respondent’s Outline of Argument submitted to the Court on 1 February 2011, as follows:

(A) Records and documents, delivery notes, storage records, temperature records, reports, inspection records, invoices, correspondence and memoranda relating to the storage of prawns sold by the Applicant to Woolworths Limited in or about December 2007 for the period December 2007 until August 2008.

39    In my view it is appropriate that the Court grant leave for the issue of a subpoena in these terms, and make orders for production of documents and inspection, because:

    The documents sought are identified with reasonable particularity.

    The category of documents is not so wide as to be oppressive.

    The material sought is of relevance to the issues in the principal proceedings.

    The respondent has demonstrated a legitimate forensic purpose for the production of the relevant documents.

    It appears that the respondent has already communicated to Versacold that the respondent would be seeking production of these documents, and to that extent Versacold has been put on notice as to the possibility of service with a subpoena.

40    However, as the trial is currently listed for next month, and as I understand from Mr Drew’s submissions that Versacold has indicated a preparedness to provide relevant documentation upon production of a subpoena, I will make orders requiring both prompt service of the subpoena and prompt production of the relevant documentation by Versacold.

CONCLUSION

41    In light of these orders I also consider it appropriate for the parties to return before the Court, after consideration of my reasons, to make submissions both as to costs and in respect of further timetabling of this matter.

Associate:

Dated:    7 February 2011