Federal Court of Australia

UIL (Singapore) Pte Ltd v Wollongong Coal Limited (No 2) [2025] FCA 417

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to file and serve a further amended statement of claim be allowed in part.

2.    The parties bring in short minutes of order to give effect to these reasons and to timetable the proceeding to trial.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

BENNETT J:

1    The application before the Court seeks orders for leave pursuant to r 16.53 of the Federal Court Rules 2011 (Cth). The Applicant relies upon the affidavit of Maurice Thompson dated 7 April 2025. The Respondents rely upon the affidavit of Jodi Walkom, also dated 7 April 2025.

2    The case was commenced in 2020. UIL (Singapore) Pte Limited (UIL) has advanced five claims against the Respondents. I do not outline them in detail now. However, it is relevant to observe that the claims for damages invoke various articles of the UN Convention on Contracts for the International Sale of Goods, and this is brought against Wollongong Coal Limited (WCL) for breach of a sale agreement from May 2014 concerning the supply of 500,000 metric tonnes of material including unwashed coking coal per annum. The second claim is for breach of the sale agreement between UIL and Wongawilli in relation to 500,000 tonnes of similar material. Fairly minor amendments have been proposed by the Applicant relating to those claims. The Respondents have consented to those amendments.

3    The third and fourth claim is for misleading and deceptive conduct. The third claim is against WCL, Wongawilli and JSPL for misleading or deceptive conduct relating to what is called the “Sale Contract Representations” defined in paragraph [29(a)] of the proposed further amended statement of claim (Proposed Further Amended Statement of Claim). There are some amendments to the Sale Contract Representations, however, they are consented to by the Respondents.

4    The fifth claim is against JSPL and WCL for misleading and deceptive conduct in relation to what was defined as the “Supply Representation” set out in paragraph [29(b)] of the Proposed Further Amended Statement of Claim. There was a minor amendment to one of the particulars concerning the Supply Representation, also made by consent.

5    There was another representation that is said to have been misleading or deceptive which has been removed by consent.

6    At paragraph 33, the Applicant had pleaded by the amended statement of claim that the Sale Contract Representation was false or misleading, and that allegation was denied by the Respondents. By the proposed amendments to paragraph 33, the Applicant now alleges that the Sale Contract Representations were misleading or deceptive because the Respondents did not intend to comply with them at the time they were made.

7    Additional particulars have been proposed which, it is said, support the intention. These include an allegation the Respondents did not cooperate with UIL in establishing the actual shipment dates or mutually agreed laycans and, further, that the Respondents did not agree to the quality and quantity of coking coal.

8    At paragraph 35, the Applicant had pleaded the Supply Representation was false and misleading in that JSPL did not enter into the agreement to the effect set out in the supply agreement or to similar effect.

9    By a proposed amendment to paragraph 35, the Supply Representation is said to be misleading or deceptive because JSPL did not intend to comply with the Supply Representation at the time it was made. New particulars are identified to support the altered claim. Those particulars focus upon the failure of JSPL to enter into agreements and the assertion that JSPL did not make any real attempt to enter into a long-term agreement with certain entities as presented in the Supply Representation.

10    By paragraph 40, the Applicant seeks to update its particulars of loss and damage in a way that creates new areas of dispute and new areas of recovery for loss and damage.

PROCEDURAL HISTORY

11    I will briefly outline the procedural history of this matter. The current proceedings were commenced in 2020 and concern conduct that took place in 2014 and 2015.

12    The statement of claim was not served until 2021. The reply which ultimately closed the pleadings was filed in August of 2022. There was a privilege dispute that was heard by this Court in September and October 2023 before being handed down in December of that year. Discovery was completed in October 2023 and lay evidence from UIL was filed and served in December 2023.

13    The Applicant instructed Clyde & Co during that time with Mr Thompson as the partner with carriage of the matter. In October 2023, Mr Thompson resigned from Clyde & Co and was not able to work for a period of time from 14 December 2023 in what is described as “gardening leave”. Clyde & Co remained the solicitors for the Applicant at that time.

14    In 2024, there was dispute about security for costs which I do not consider relevant to the issues in this proceeding, save for in the limited way that I will refer to later. That dispute was resolved in about November of 2024.

15    Mr Thompson deposes that there was an unsuccessful mediation in March 2024. He also deposes that the matter was transferred to new solicitors, being HFW Australia, in July 2024, where he now worked, at which time he regained carriage of the matter. Counsel remained unchanged throughout that time. Following the security for costs issue being resolved in 2024, the solicitors now on the record carried out a review of the material in light of the evidence and materials filed and discovery up to that point in time. The proposed amendments are said to arise from that review, and they are said to be part of an attempt to clarify the matter for the purposes of preparation for trial.

16    On or about 25 March 2025, the Applicant communicated its intention to seek to further amend its amended statement of claim. That letter did not explain why the amendments were being sought at this stage in the proceeding, some ten years after the conduct that is alleged to have given rise to the claims. In correspondence that I will not summarise in detail, the Applicants asserted that there was no prejudice and did not otherwise explain the delay.

17    The Respondents were due to file their evidence a few days after the amendments were foreshadowed. It has not been submitted that the Respondents had their evidence all but ready to file based on the previously prepared pleadings.

18    An explanation for the delay in providing the proposed amended pleading was provided the evening before the hearing of this application, and it is not clear why it could not have been provided earlier. The Applicants have agreed to pay the costs thrown away by reason of the amendments.

19    It is in that general context and without having been exhaustive that I turn to consider the principles relevant to an application of this kind.

THE APPLICABLE RULE AND PRINCIPLE

20    The circumstances in which an amendment will be permitted are well known, having been articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

21    The principles have been repeated a great number of times, including recently in Alexiou v Australian and New Zealand Banking Group (Application to Amend Pleading) [2025] FCA 7 (Alexiou). At paragraphs [50] and [51] of that case, Perram J sets out the principles relevant to the exercise of the discretion under this rule, quoting Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 (Tamaya):

In [Tamaya], Gleeson J set out a convenient summary of the matters to be taken into account on an amendment application at [127]:

(1) the nature and importance of the amendment to the party applying for it;

(2) the extent of the delay and the costs associated with the amendment;

(3) the prejudice that might be assumed to follow from the amendment, and that which is shown;

(4) the explanation for any delay in applying for that leave;

(5) the parties’ choices to date in the litigation and the consequences of those choices;

(6) the detriment to other litigants in the Court; and

(7) potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

The weighting to be given to these various matters depends on the facts of the case: Cement Australia Pty Ltd v Australian Competition & Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51] per Keane CJ, Gilmour and Logan JJ. The list is not necessarily exhaustive.

22    Of course, all these factors are considered in the context of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

23    I will now make some observations in relation to some of the factors that I consider important in this case.

THE RELEVANT FACTORS

The nature and importance of the amendment

24    Turning first to the nature and importance of the amendment, the Applicant asserts that the amendments disclose a viable and appropriate cause of action which is being distilled at this stage as part of the usual preparation for the trial.

25    Examination of the Proposed Further Amended Statement of Claim show the amendments relate to already pleaded representations that have been the subject of a misleading and deceptive conduct claim. In this sense, the amended paragraphs do arise out of “substantially the same story” as that which supports the original cause of action in a manner described in Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (in liq) (Receivers and Managers Appointed) [2018] FCA 238 at [71] (Davies J).

26    I accept, as the Respondents submit, that the amendments do change the emphasis, and they create a new question of intention at the time the representations were made rather than simply whether those representations were misleading. Nonetheless, they are not entirely new factual matters. There may be prejudice that follows from the amendments – particularly as to fading memories – an issue to which I will return.

27    The Respondents argue the amendments are not viable or are otherwise inappropriate and, in part, this is said to be because the paragraphs are allegations of fraud or tantamount to fraud so that a particularly strict approach to pleadings arises. It may be the allegations are tantamount to fraud. However, I do not think that the supporting particulars are so unable to support the inference advanced as to make the amendments inappropriate. In making this observation, I emphasise I am not in a position to conclude definitively on this issue at this stage of the proceeding, and it is not appropriate for me to examine the facts in any more than an impressionistic way in this kind of an application. It may be that, ultimately, the facts identified in the particulars do not support the ultimate contention for which they are identified. That will be something that will be identified when the facts are fully ventilated. However, at this stage, they are not futile nor liable to be struck out.

28    Similarly, the damages claims appear to be viable at a high level.

29    Overall, the amendments appear to me to be non-trivial and, if they are not permitted, the Applicant's case will be significantly diminished.

The prejudice that might be assumed to follow from the amendment

30    The costs and difficulty derived from the proposed amendment are relevant. The Respondents argue based on evidence from their solicitor on the record that permitting the amendments will cause prejudice by increasing its costs for a number of reasons, including:

(1)    the Respondents will be required to prepare an amended defence which will take significant time and effort, as key persons that the Applicant alleges were involved in misleading and deceptive conduct are no longer employed by the Third Respondent;

(2)    concerns that a further substantial round of discovery will be required from the Applicant and that discovered material will then need to be reviewed by the Respondents;

(3)    lay evidence on topics will be required in circumstances where some key personnel no longer work for the Third Respondent; and

(4)    further expert evidence is likely to be required from a suitably qualified expert in Singaporean tax law.

31    There is concern this will require further additional security for costs and that previous delays in security for costs will make it difficult to agree and progress the matter in a timely way.

32    I note that security has presently been provided, at least up to the commencement of trial and for some period within the trial. That provision is, in my view, adequate security for additional work that may be undertaken arising from the amendments, and any further application can be made to supplement the current provision prior to the commencement of trial, any application in relation to which I will deal with expeditiously if it is raised.

33    In addition, I note the Applicant argues that the discovery obligation from the Respondents is, in their view, likely to be minimal. If such an application is forthcoming from any amendments, then it will need to be accompanied by an affidavit explaining why fresh discovery is required and how any such order is consistent with the arguments that have been put in pursuing the amendment application.

34    I am concerned by the risk that memories may have eroded significantly in the time since the conduct occurred. The Applicant asserts that the case is predominantly a documents case and submitted that as an answer to this criticism. I do not accept that this is a complete answer. It is a matter of concern that the intention of parties might be put into question more than 10 years following the events. It is not to the point that the Applicants believe it should be a documents case. The question is whether the Respondents are denied the opportunity to respond to the allegations. It is connected with the question of delay. There is no question allegations of this kind could have been validly pleaded earlier, although I cannot identify precisely when. The evidence does not go so far to suggest that key people are not available: simply that to obtain information from them could cause delay because they are no longer employed by the Third Respondent.

35    There is no evidence to suggest that the evidence has degraded beyond the usual understanding and expectation of human life. I accept that, as a matter of principle, there is likely to be some degradation in memory since the events of 2014 and 2015. It is not clear to me that the additional portion of delay occasioned by these amendments contributes so materially to that concern beyond what would have already occurred to date.

Risk to the trial date

36    I then turn to the risk to the trial date. The Respondents argue there is a risk to the trial date because of the matters that I have already discussed.

37    The trial date is still eight months away, and I am able to respond to any interlocutory issues in a timely manner. The Respondents' concern appears linked to negotiations for security for costs. I am therefore minded to list or foreshadow a listing for any dispute of that kind and, with that approach, I perceive the risk to the trial date to be low.

The extent of the delay and the explanation for it

38    I have already outlined the procedural history of the matter and I will not do so again. The extent of the delay and the explanation for it is a factor and, in some instances, a very significant factor. I have made clear that I am very troubled by it.

39    The Applicant relies on a number of matters to explain the delay, and it did so in a belated way that made this application more difficult.

40    In short, the Applicant relies upon discovery and the filing of evidence as being necessary before a process of “standing back” could take place to determine what amendments were necessary and appropriate in the course of preparing the matter for trial. The discovery and provision of evidence concluded in 2023, with the review taking place in the first half of 2024. I do have some sympathy for the notion that the solicitors were focused on the mediation scheduled for March 2024 before the costs and time involved in the outcome of a review and analysis would be more completely considered and acted upon.

41    It appears that security for costs then took significant focus, and it was only when that was concluded that the question of preparation for the hearing arose and, at that time, the amendments were identified.

42    This is not a strong explanation for the timing of the application. One could imagine things being done in a more timely way. However, practice often requires prioritising matters of more immediate significance such that other matters are less urgent for a time. Whilst not a perfect explanation, the trial is still eight months away.

43    This is not a case like Alexiou, where the amendments sought were voluminous and more significant than in the present case. The presently proposed amendments are relatively confined and connected to subject matter that was in many respects already in the arena between the parties.

44    The amendments to paragraph 40 are said to be based on evidence that was finalised in December 2023. An explanation as to why this could not have been done sooner is not overwhelmingly compelling. However, it is not uncommon for loss and damage to be ascertained more clearly closer to trial and given the trial date remains some eight months away, I do not consider this to be a significant factor in connection with those amendments.

45    Overall, I consider the effluxion of time as the most significant factor weighing against permitting the amendments. While this is a case where there is an explanation for the delay, albeit not a compelling one or not an overwhelmingly compelling one, I am not persuaded the delay ought to be considered disentitling for the Applicant's amendments in this instance. That is because when the factors are all weighed together in the context of the case taken as a whole, the effect of the explanation for the delay is not so significant as to outweigh all the other factors including the time until the trial, the relatively confined nature of the amendments, the factual continuity between the previous case and the proposed case, and the assurances provided by the Applicant as to the confined nature of subsequent discovery and the ability to respond to issues as they arise.

Forensic choices in the litigation

46    The amendments in this case are relatively narrow in compass and there is no sign of forensic choices taken that compound the impact of the amendments, nor is there any suggestion that there have been previous forensic choices that may have been relevant to this analysis, although I do note there was an exchange of correspondence in 2021 that appeared to foreshadow some of the issues that are now relevant. Again, I do not consider this to be of significant relevance. There have not been a large or inappropriate number of attempts to amend the pleading and the amendments are consistent with an attempt to focus on the core issues in dispute and are accompanied by removing some areas of dispute between the parties in a manner that is consistent with an increased amount of focus in preparation for the trial.

Detriment to other litigants in the Court

47    Because I do not perceive a significant risk to the trial date, I do not consider that there are risks of detriment to other litigants in the Court.

Loss of confidence in the legal system

48    I am concerned that the paucity of the explanation for delay could corrode confidence in the legal system. However, given the Respondents have yet to file evidence and there remains eight months until the hearing, I do not consider this factor weighs significantly in the balance.

CONCLUSION

49    Overall, I am satisfied that:

(1)    the amendments raise non-trivial issues, but they do concern much of the same factual substratum as the earlier case;

(2)    there may be some prejudice to the Respondents but that can generally be managed through speedy case management and costs. The scope of the amendments are not significant and are accompanied by a narrowing of the case by deleting some claims;

(3)    there is only a belated explanation for the delay. However, there have not been a large number of amendments, and so there is no suggestion there have been too many applications or an attempt to deploy such applications to delay or frustrate the proceedings. There remains eight months until the trial date and while the Respondents point to a risk to the trial date, they do not go so far as to say the trial date cannot be maintained;

(4)    the granting of the amendments will not result in prejudice to other litigants in my docket; and

(5)    in all the circumstances, the granting of the amendments will not impact public confidence in the legal system.

50    Determining whether to grant the amendments requires an assessment of the interests of justice. The main factor against, as I have identified, is the delay. However, overall, I am satisfied an explanation has been provided. This case is different from Tamaya where the failure to provide an explanation at all meant the weighing exercise called for could not be carried out. I have weighed the delay against the other factors and while I consider it to be a finely balanced matter, I have decided the interests of justice favour a grant of leave to amend, save in relation to one line in each paragraph to which I will return. In the hearing of this application, I made clear that if I permitted the amendment, it would be on the basis that all steps to trial a timetable take into account the issues raised.

51    I will now, therefore, hear the parties as to orders dealing with pleadings, discovery, evidence, security for costs, or any other matters by which interlocutory steps are required to be dealt with. As I noted in the course of this decision, any steps where the Applicant seeks further discovery will need to be accompanied by an affidavit explaining why the documents are required and an explanation making clear that any such application is consistent with the assurances provided to the Court in the course of this hearing. I will not give leave for the line in the Proposed Further Amended Statement of Claim that says, "further particulars will be provided following discovery", but save for those two matters, the amendments will be permitted.

Associate:

Dated:    29 April 2025