Federal Court of Australia

Haggarty v RX Plastics Pty Ltd (No 2) [2025] FCA 565

ORDERS

THE COURT ORDERS THAT:

Respondents’ application for leave to amend and to withdraw admissions

1.    Pursuant to rule 16.53(1) of the Federal Court Rules 2011 (Rules), leave is granted to the third to sixth respondents to amend their defence substantially in the form of the proposed amended defence to the further amended statement of claim annexed to the application filed 15 May 2025 (amended defence).

2.    Within 1 business day of the date of this order, the third to sixth respondents are to file and serve their amended defence.

3.    Pursuant to rule 26.11(2)(b) of the Rules, leave is granted to the third to sixth respondents to withdraw the admissions of paragraphs 13B, 14, 15, 19 and 67 of the further amended statement of claim filed 5 August 2024 contained in the defence filed 26 August 2024.

4.    Within 1 business day of the date of this order, the third to sixth respondents are to file and serve a form 47 notice of withdrawal.

5.    By 4:00pm AEST on 3 June 2025, the applicants file and serve their reply to the amendments in the amended defence and any affidavits in response to the amendments in the amended defence.

6.    Costs reserved.

Discovery application

7.    The applicants pay the third to sixth respondents’ costs of the applicants’ application filed 14 May 2025 on a party and party basis.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    This matter concerned the form of orders to be made to give effect to the Court’s reasons for judgment in Haggarty v RX Plastics Pty Ltd [2025] FCA 536. Judgment was delivered on 23 May 2025 in relation to two interlocutory applications (together the interlocutory applications) heard on 21 May 2025. This judgment assumes familiarity with Haggarty and the judgments should be read together. The trial in this matter is set down for seven days to commence on 9 June 2025.

2    By the first interlocutory application the applicants sought discovery of further documents: Haggarty at [2]. The applicants, also the applicants for substantive final relief in this matter, are:

    Mr Justin Haggarty, in his personal capacity and as trustee for the Justin Haggarty Bloodline Trust;

    Mr Darren Haggarty, in his personal capacity and as trustee for the Darren Haggarty Bloodline Trust; and

    Mr Campbell Craddock.

See [3] of Haggarty.

3    By the second interlocutory application the third to sixth respondents (the respondents) sought leave to amend their defence and withdraw admissions made in their defence to the applicants’ further amended statement of claim: Haggarty at [4] and [6]. The third to sixth respondents are:

    Mr Scott Haggarty, in his personal capacity and as trustee for the Scott Haggarty Bloodline Trust (third respondent);

    Mrs Sandra Haggarty (fourth respondent);

    Haggarty Holdings Co Pty Ltd, in its own right and as trustee of the RX Trust (fifth respondent); and

    John Haggarty Co Pty Ltd, in its own right and as trustee of the J.P.J. Haggarty Family Trust (sixth respondent).

See Haggarty at [5].

4    The orders made in Haggarty on 23 May 2025 were as follows:

THE COURT ORDERS THAT:

1.    The application for further discovery, dated 14 May 2025, is dismissed.

2.    The respondents’ application for leave to amend defence and leave to withdraw admissions, dated 15 May 2025, is allowed.

3.    Within 3 working days of the date of these orders, the parties are to provide to the court:

(a)    a minute of agreed orders; or, as the case may be,

(b)    competing minutes of orders together with supporting written submissions of no more than five pages,

that are, in either case, proposed to give effect to the court’s reasons for judgment.

5    On 28 May 2025, my Chambers received an email from Ms Rachel Wallen, a solicitor at Results Legal, the legal representatives for the applicants (applicants’ email). The applicants’ email attached their proposed draft orders and outline of submissions. My Chambers also received an email on 28 May 2025 from Ms Paris Galea, a senior associate at Piper Alderman, the legal representatives for the respondents (respondents’ email). The respondents’ email similarly attached their proposed orders and outline of submissions.

6    The respondents submitted that a consent position had been reached with the applicants with respect to four orders. They read as follows:

Respondents’ application for leave to amend and to withdraw admissions

1.    Pursuant to rule 16.53(1) of the Federal Court Rules 2011 (Rules), leave is granted to the third to sixth respondents to amend their defence substantially in the form of the proposed amended defence to the further amended statement of claim annexed to the application filed 15 May 2025 (amended defence).

2.    Within 1 business day of the date of this order, the third to sixth respondents are to file and serve their amended defence.

3.    Pursuant to rule 26.11(2)(b) of the Rules, leave is granted to the third to sixth respondents to withdraw the admissions of paragraphs 13B, 14, 15, 19 and 67 of the further amended statement of claim filed 5 August 2024 contained in the defence filed 26 August 2024.

4.    Within 1 business day of the date of this order, the third to sixth respondents are to file and serve a form 47 notice of withdrawal.

(Emphasis in original.)

7    However, the parties were unable to come to a consent position as to the time within which the applicants must file and serve any amended reply and affidavits responding to the amendments in the amended defence (Order as to Amended Reply) and as to costs (Orders as to Costs).

consideration

Order as to Amended Reply

8    Both parties agree that an order should be made granting leave for the applicants to file and serve an amended reply responding to the respondents’ amended defence and any affidavits responding to the amendments made to that defence. This is clearly a matter of procedural fairness in light of the orders made and the procedural history of the matter which is outlined at [16] – [28] of Haggarty.

9    The competing proposed orders are as follows. The applicants sought an order in the following terms:

4.    The Applicants have leave to file and serve any amended reply and further affidavit in response to the amended defence within 7 days of the date of this order.

10    If these orders were made today, the relevant date for compliance would be 6 June 2025, two days prior to the commencement of the trial.

11    The respondents sought an order in the following terms:

5.    By 4:00pm on 2 June 2025, the applicants file and serve their reply to the amendments in the amended defence and any affidavits in response to the amendments in the amended defence.

12    The applicants made no specific submissions directed to the time for the delivery of an amended reply.

13    The respondents submitted as follows:

    The amended reply should be delivered on 2 June 2025, which is one week before the commencement of the trial on 9 June 2025 and affords the respondents sufficient time to prepare for trial with respect to the amended reply and any further affidavits;

    The applicants have been on notice of the Court’s decision to grant leave for the respondents to file their amended defence and withdraw the relevant admissions since 23 May 2025, at which time reasons for judgment were delivered;

    The respondents’ proposed date for delivery of the amended reply means the applicants have had ten days from the delivery of judgment on 23 May 2025 to file and serve their amended reply and any further affidavits, which is a reasonable amount of time;

    The applicants have provided no explanation for the date proposed in their draft orders.

14    As is clear from these reasons the timeframes until trial are now tight. In light of the proximity of the trial I consider that the amended reply should be filed by 4:00pm on 3 June 2025. That date recognises the imperative to preserve the trial dates which have already been vacated once, and also the time pressures on the applicants by ordering that they have an additional day to that proposed by the respondents to file their amended reply and any further affidavits. As the respondents submitted the applicants have been aware of the orders granting leave to the respondents to file an amended defence and withdraw admissions since 23 May 2025.

Order as to Costs

15    The applicants sought an order as to costs in the following terms:

3.    Any submissions regarding costs of the applications are to be heard at the trial of the proceeding, at a time to be directed by the Court.

16    The applicants submitted that they understood the Court as having intended to reserve costs pursuant to r 40.03 of the Federal Court Rules 2011 (Cth).

17    Conversely, the respondents sought orders as to costs in the following terms:

Respondents’ application for leave to amend and to withdraw admissions

…

6.    Costs reserved.

Discovery application

7.    The applicants pay the third to sixth respondents’ costs of the applicants’ application filed 14 May 2025 on a party and party basis.

18    The respondents submitted that while paragraph [74] of Haggarty made clear that it was intended that costs should follow the event, as the applicants have now indicated that they wish to be heard with respect to the costs of the application for leave to file an amended defence and withdraw admissions, the respondents consent to the costs with respect to that application being reserved.

19    As to the application with respect to discovery the respondents sought an order in the terms set out above, on the basis that it is “consistent with the general rule that a successful party is entitled to its costs”, citing Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498; [2015] FCA 1281 at [18]. The respondents further submitted that “no reason has been advanced as to why the Court should depart form [sic] the general rule”.

20    The respondents’ submissions in that regard must be accepted.

conclusion

21    I will therefore make orders in terms of those now proposed by the respondent.

Associate:

Dated:    30 May 2025

SCHEDULE OF PARTIES