Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569
Outcome: cited
More generally, I do not consider that Finkelstein J's orders granting leave to file the cross claims should be seen in isolation from the other orders which he made on 7 July 2006. In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] and [9], Merkel J said: 'In my view the Court's case management and individual docket system is such that it is well placed to ensure that there is no embarrassment or prejudice about the pleadings and proper particulars can be required to be provided at an appropriate time. At this point of time I am not satisfied by the evidence or the submissions on behalf of Esso that the pleadings are so wide that the resulting embarrassment or prejudice is such that Esso is unable to properly or adequately plead to the statement of claim or proceed with any other interlocutory steps. ... Further, to the extent embarrassment might exist it is more properly dealt with by a requirement that particulars be provided rather than the pleading be struck out.' To the extent that the cross claims are defective or do not strictly comply with the rules of pleading, any prejudice to the applicants is not irremediable. It is capable of being addressed by the provision of particulars or by the trial judge undertaking other appropriate case management steps as this action proceeds towards trial. If adequate particulars are not provided, the applicants could also move to strike out the unsupported allegations. 41 In determining to grant leave to file the cross claims, Finkelstein J was exercising a discretion that fell squarely within the realm of case management. It is clear from his reasons for decision that Finkelstein J weighed up several factors. He was satisfied that the amended cross claims adequately notified Baker &amp; McKenzie and Munroe of the case they had to meet. On an objective assessment, he concluded that the causes of action against Baker &amp; McKenzie and Munro were clear from the cross claims. He also considered that counsel for the applicants had demonstrated, by their submissions, that they understood the causes of action that were raised against them by the cross claims. On the other side of the ledger, Finkelstein J took into account the fact that there were, or may be, deficiencies in the manner in which the cross claims had been pleaded. It is reasonable to infer that his Honour considered that those deficiencies could be addressed by the provision of particulars, as to which he made directions. His Honour also took into account the stage of the proceedings, the adjournment of the proceedings to 20 November 2006, and the desirability of not jeopardising a timely trial of the case. In my opinion, this process of reasoning was open to his Honour. I do not consider that it discloses any error of principle warranting the grant of leave to appeal. 42 Like Finkelstein J, I consider that the basic claims alleged against each of the applicants are tolerably clear from the relevant cross claims. In the absence of any pleading or particulars identifying what facts were allegedly known, or ought to have been known, by Baker &amp; McKenzie and Munro at the time that they engaged in the conduct pleaded against them, I may have reached a different conclusion about the grant of leave to file the cross claims. But this is irrelevant. The question I must consider on an application for leave to appeal is not whether an appellate court would exercise its discretion in the same way as the trial judge, but whether there is sufficient doubt that the primary judge's discretion miscarried because he failed to apply the correct legal principles so as to warrant reconsideration by the Full Court. In my opinion, the course which Finkelstein J followed was open to him, and it cannot be said that his decision discloses an error of principle justifying the grant of leave to appeal. 43 The applicants also submitted that Finkelstein J fell into error in the weight he attached to the importance of not jeopardising a timely trial of the action. In my opinion, Finkelstein J was entitled to have regard to the desirability of achieving a timely trial of the action. I do not consider that Finkelstein J elevated this consideration to such a level that it had the consequence that he did not apply the correct principles when he granted leave to file the cross claims. 44 The applicants argued that Finkelstein J assumed that any delay in the institution of the cross claims was the fault of Baker &amp; McKenzie and Munro, and that he took this into account to their prejudice. I do not read his Honour's reasons for decision in that way. Finkelstein J referred to the lateness of the cross claims as a relevant objective fact, but he did not attribute that situation to the fault of Baker &amp; McKenzie or Munro. 45 Lastly, the applicants submitted that Finkelstein J failed to take into account the fact that this was the fourth proposed amended cross claim put forward by CSL and the Directors. This submission counts cross claims which were circulated between the parties as well as those which were filed. Clearly, Finkelstein J was conscious of the background to the leave applications: his reasons state that cross claims were first filed on 30 June 2005, and a month or so earlier Finkelstein J had struck out earlier versions of the cross claims. I do not accept the applicants' submission and, in any event, I do not think it supports the grant of leave to appeal. 46 Assuming for the purposes of argument that Finkelstein J erred in principle in his decision to grant leave to file the cross claims, I am not satisfied that substantial injustice would result if I refuse leave to appeal. Finkelstein J's orders did not determine any substantive rights of the parties. The central complaint raised by the applicants is that the allegations of breach of duty and/or involvement in contraventions are not supported by proper pleading and particulars. The substance of this complaint is capable of being addressed by the provision of appropriate particulars. If that does not occur, the applicants can make another application to the trial judge seeking particulars and/or an order striking out the cross claims.