Case: Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008
Outcome: cited
history relating to that application is fully described in my reasons for judgment in Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [2] - [22] . For completeness I include these paragraphs. The application seeking leave to amend had its genesis in a notice of motion which was filed on 12 June 2007 in which the applicant sought leave to amend its third further amended statement of claim. That notice of motion was listed for mention on 9 July 2007 and was heard on 12 July 2007. On that day I made the following orders: The applicant lodge and serve the applicant's proposed fourth further amended statement of claim within 28 days. The hearing of the applicant's notice of motion dated 12 June 2007 to amend its further amended statement of claim be adjourned to 9.30am on 4 September 2007. The applicant pay the respondent's costs of the applicant's notice of motion dated 12 June 2007 to date. The respondent's notice of motion dated 26 April 2007 be adjourned to 9.30am on 4 September 2007. On 16 August 2007 the parties, by agreement, consented to an extension of time within which the applicant had to lodge its proposed fourth amended statement of claim, from 9 August 2007 to 27 August 2007. The hearing of the application was adjourned again by consent to 20 September 2007. On 19 September 2007 the applicant filed a notice of motion seeking an adjournment of the hearing of the notice of motion filed on 12 June 2007 to amend the applicant's third further amended statement of claim. On 20 September 2007 I dismissed the applicant's notice of motion of 12 June 2007 and made the following further relevant orders: The applicant pay the respondents' costs of and incidental to the notice of motion. The respondents' oral application for an order that the costs be paid forthwith be reserved. ... The applicant's oral application for leave to file a further amended statement of claim be adjourned to the same date and time for hearing. I also made the following directions: The applicant lodge with the Court and deliver to the respondents any further proposed amended statement of claim by Wednesday, 10 October 2007. The respondents advise any objections to the proposed amended statement of claim by Monday, 29 October 2007. The applicant respond to any notice of objection by Friday, 2 November 2007. I adjourned the oral application for leave to file a further amended statement of claim to 7 November 2007. On 9 October 2007 the applicant's solicitors wrote to my associate and advised that a notice of motion seeking leave to amend the applicant's third further amended statement of claim would be filed and served by 19 October 2007, together with an affidavit annexing a copy of the proposed fourth further amended statement of claim. The applicant's solicitors were advised that an oral application had already been made for leave to amend the applicant's statement of claim. They were also advised that the orders so far made required the applicant to "lodge" with the Court any proposed amended statement of claim rather than file and serve that document. On 19 October 2007 the applicant's solicitors again wrote to my associate advising that the proposed fourth further amended statement of claim would not be ready until the following week. On 24 October 2007 the applicant sent to my chambers the proposed fourth further amended statement of claim advising that the applicant remained ready to argue its application for leave to amend its statement of claim on 7 November 2007. On 31 October 2007 the applicant wrote again to my Chambers and stated that the parties proposed that the respondent provide any objections to the proposed fourth amended statement of claim by Monday, 5 November 2007. It was also proposed that the matter proceed by way of a directions hearing on 7 November 2007, instead of for the purpose of hearing the substantive application. On 7 November 2007 I noted the parties' agreement: The parties are to confer in relation to the respondents' objections to the proposed fourth further amended statement of claim dated 24 October 2007. I made the following orders: The applicant is to deliver to the respondents and to the Court any revised proposed fourth further amended statement of claim on or before 12 November 2007. The respondents are to file any submissions in opposition to the proposed fourth further amended statement of claim (or revised version thereof) on or before 19 November 2007, together with any affidavit material or submissions that the respondents may seek to rely on, in respect of any order that they seek including by way of any condition to be imposed on any grant of leave to file the proposed fourth further amended statement of claim including: (a) an order that the applicant pay the respondents' costs thrown away by reason of the amendment as agreed or taxed, payable forthwith; and (b) an order relating to the time or times of commencement of any amendment. The applicant is to file and serve any affidavit material together with any submissions upon which it will seek to rely in support of: (a) the grant of leave to file the proposed fourth further amended statement of claim; and (b) in relation to any issue raised by the respondents in their submissions filed under order 3 above, on or before 23 November 2007. The proceeding be stood over to 27 November 2007 at 10.15am before Lander J. 6. The question of costs be reserved. All outstanding notices of motion be adjourned to the same date and time for mention. On 13 November 2007 the applicant's solicitors delivered to my chambers a revised proposed fourth amended statement of claim which was one day late. The respondents' responded to the revised proposed fourth amended statement of claim by filing affidavits in opposition. On 22 November 2007 the applicant's forwarded another proposed further fourth amended statement of claim in substitution of the proposed further fourth amended statement of claim which had been lodged on 13 November 2007. On 23 November 2007 the respondents wrote to my chambers advising that the proposed further fourth amended statement of claim which had been lodged on 22 November 2007 was substantially different to that which had been lodged on 13 November 2007. The applicant's application to file and serve a fourth further amended statement of claim did not proceed on 27 November 2007 because the respondents had not had sufficient time to address the proposed fourth further amended statement of claim which had been lodged on 22 November 2007. On 27 November 2007 I made the following orders: The applicant lodge with the Court and serve the respondents with the applicant's proposed statement of claim by 10 December 2007. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions by 14 December 2007. The respondents provide Lander J's associate and the applicant's solicitors with the respondents' written submissions by 25 January 2008. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions in reply by 12 February 2008. The applicant's application for leave to amend the applicant's statement of claim be adjourned until 9.00am on Wednesday, 20 February 2008. The applicant pay the respondents' costs of the application for leave to amend up to and including today. The questions as to the scale of costs and as to whether there is a further order that costs be paid forthwith be reserved. It can be seen that, with the exception of the hearing on 7 November 2007, an order has been made that the applicant pay the respondents' costs of the hearings. Moreover, an order was made that the applicant pay the respondents' costs of the applicant's notice of motion of 12 June 2007 which I dismissed on 20 September 2007. The question of costs of the hearing of 7 November 2007 was reserved. To avoid any doubt, there will be an order that the applicant pay the respondents' costs of that hearing. The applicant's application was heard and determined on 20 February 2008. On that day, I made the following orders: The applicant have leave to file a Fourth Further Amended Statement of Claim in the form initialled this day by Lander J ("FFASOC") on or before 29 February 2008, subject to the FFASOC as filed containing, in addition to paragraphs 103 to 105 inclusive as they appear in the initialled version, sub-paragraphs in each of those paragraphs: (a) pleading the applicant's claimed status as a person aggrieved and giving particulars thereof; and (b) stating the particular section(s) and paragraph(s) of the relevant statute that describe the entry in the respective Registers of which the applicant seeks rectification. The applicant file and serve with the FFASOC proper particulars of the fiduciary duty pleading (paragraphs 21 to 53) and of the misleading and deceptive conduct pleading (paragraphs 113 to 116). The time from which the amendments the subject of paragraph 1 take effect shall be reserved for trial, and for that purpose this order is a contrary order within the meaning of Order 13 rule 3A. The questions of costs the subject of the parties' submissions on 20 February 2008 be reserved. As the history shows, a number of drafts of a proposed fourth further amended statement of claim were lodged and considered by the respondents and the Court before leave was eventually given on 20 February 2008 for the applicant to file that document. The time lost between the filing of the notice of motion on 12 June 2007 and the grant of leave was almost exclusively a result of the applicant's inability to articulate its claim. On 7 March 2008 the applicant filed an amended application. Pursuant to the leave granted it also filed a Fourth Further Amended Statement of Claim (FFASOC), which remains the current pleading.