SUPREME COURT OF QUEENSLAND
CITATION: | Comprite Pty Ltd v Returned & Services League of Australia (Queensland Branch) [2010] QSC 355 |
PARTIES: | COMPRITE PTY LTD |
FILE NO/S: | BS 1047 of 2006 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 22 September 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 February 2010; |
JUDGE: | Daubney J |
ORDER: | 1.(a)The defendant’s application filed 4 September 2009 is dismissed. (b)The defendant shall pay the plaintiff’s costs of and incidental to that application, to be assessed on the indemnity basis. 2.The defendant has leave to counter-claim against the plaintiff in the form of the draft counter-claim which is Exhibit “PGM-3” to the affidavit of Peter Glen Mylne sworn on 25 January 2010 and filed herein, such leave being limited to have effect only to the extent necessary to give effect to Order 3 below. 3.(a)The plaintiff shall have judgment upon the counter-claim, with costs thereof (including the costs of the plaintiff’s application filed 14 October 2009), and including any reserved costs in respect of previous counter-claims in this proceeding and the costs of proceeding BS 942 of 2006, such costs to be assessed; (b)The plaintiff shall be at liberty forthwith to enter such judgment. 4.The defendant’s application filed 25 January 2010 is otherwise dismissed, with costs. |
CATCHWORDS: | Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Pleading – Defence and counterclaim – where the plaintiff has sued for money owing – where the defendant has counter-claimed for monies which it asserts were paid to the plaintiff by mistake – where defendant has filed several versions of the counter-claim – where the counter-claim has repeatedly failed to identify the individuals who the defendant asserts held the mistaken beliefs it alleges – where previous versions of the counter-claim have been struck out – where specific orders have been made in relation to the filing of an amended counter-claim – where the defendant has applied for leave to deliver a further amended counter-claim – where the plaintiff has cross-applied for summary judgment on the counter-claim – whether leave to deliver the amended counter-claim should be granted – whether the plaintiff should have judgment on the counter-claim Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 1999 (Qld), r 5 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, applied Comprite Pty Ltd v Returned & Services League of Australia (Queensland Branch) [2008] QSC 234, cited Comprite Pty Ltd v Returned & Services League of Australia (Queensland Branch) [2009] QSC 163, cited Mango Boulevard P/L v Spencer & Ors [2008] QCA 274, cited |
COUNSEL: | SL Doyle SC with PR Franco for the plaintiff GA Thompson SC with R Clutterbuck for the defendant |
SOLICITORS: | Russell and Company for the plaintiff Mylne Lawyers for the defendant |
(a)Mark ups charged by Comprite on printing and stationery costs (the RSLQ contending that its contractual obligation was only to reimburse Comprite for its actual costs), and
(b)List rental charged by Comprite for the use of certain databases (the RSLQ contending that the use of the databases was within Comprite’s management fee charged under a Management Agreement entered into between the parties on 1 April 1999 and Comprite was not entitled to impose an extra charge for the use, or “rental”, of these databases).
6 February 2006 | The RSLQ commences proceeding BS 942/06 against Comprite claiming alleged overpayments |
8 February 2006 | Comprite commences present proceeding |
23 March 2006 | Comprite files an application for further and better particulars of the RSLQ’s statement of claim |
5 April 2006 | de Jersey CJ orders the RSLQ to provide further and better particulars of its statement of claim |
25 May 2006 | Comprite files an application to strike out the RSLQ’s statement of claim |
8 June 2006 | Muir J orders the RSLQ’s statement of claim be struck out |
5 July 2006 | The RSLQ files an amended statement of claim in BS 942/06 (amended in whole) claiming alleged overpayments |
21 August 2006 | Comprite files an application to strike out the RSLQ’s amended statement of claim |
6 September 2006 | The RSLQ files a further amended statement of claim claiming alleged overpayments |
7 September 2006 | Mullins J orders that the majority of the RSLQ’s further amended statement of claim be struck out and orders the RSLQ to file and serve a further pleading by 28 September 2006 |
31 October 2006 | Mackenzie J extends the time for the RSLQ to file and serve a further pleading to 15 December 2006 |
19 December 2006 | The RSLQ files a further amended statement of claim (amended in whole) in BS 942/06 claiming alleged overpayments |
17 January 2007 | Comprite’s solicitors request further and better particulars of the RSLQ’s further amended statement of claim, including particulars of each person who held an allegedly mistaken belief in respect of each alleged overpayment |
13 September 2007 | Chesterman J orders that BS 942/06 and BS 1047/06 be consolidated, and that Comprite have the carriage of the consolidated proceeding |
14 February 2008 | Comprite files a further amended statement of claim |
7 May 2008 | Comprite files a second further amended statement of claim |
22 July 2008 | The RSLQ files a defence and counter-claim claiming alleged overpayments (including a claim for misleading and deceptive conduct) |
28 July 2008 | Comprite’s solicitors write to the RSLQ’s solicitors seeking further and better particulars of the defence and counter-claim, including particulars of each person who held an allegedly mistaken belief in respect of each alleged overpayment |
20 August 2008 | The RSLQ’s solicitors refused to provide the requested particulars, asserting, inter alia, that the relevant states of mind were held by the RSLQ “as a body corporate” |
26 September 2008 | de Jersey CJ orders the RSLQ’s counter-claim be struck out |
22 October 2008 | Mackenzie J orders the RSLQ to file and serve an amended pleading by 17 November 2008 |
18 November 2008 | The RSLQ files an amended defence, set off and counter-claim by which it claims alleged overpayments |
5 January 2009 | Comprite requests further and better particulars of the RSLQ’s amended defence, set off and counter-claim, including particulars of each person who allegedly held a mistaken belief in respect of each alleged overpayment |
6 February 2009 | The RSLQ provided some further and better particulars, but refused to provide particulars of each person who allegedly held a mistaken belief in respect of each alleged overpayment |
25 June 2009 | Byrne SJA orders that the amended counter-claim be struck out, and required delivery of a draft amended counter-claim by 14 August 2009 |
14 August 2009 | The RSLQ delivers a draft amended counter-claim, some statements and a list of authorities |
20 October 2009 | RSLQ’s application for leave to file and serve an amended counter-claim in the form of the draft delivered in accordance with the order of Byrne SJA and a cross-application by Comprite for judgment in respect of the RSLQ’s counter-claim are heard by me |
14 January 2010 | While judgment in respect of the applications heard in October 2009 was pending, the RSLQ’s legal advisers advise Comprite and the Court that the RSLQ wanted to reopen the matter to adduce fresh or new evidence, and that it would be filing an application to adduce further evidence in the proceedings in the following week |
25 January 2010 | RSLQ files an application for leave to deliver another version of its amended pleading (not the pleading which was the subject of the argument in October 2009, and not an application for leave to adduce further evidence on the application heard in October 2009) |
3 February 2010 | Hearing of this further application by the RSLQ |
7 February 2010 | Supplementary submissions by counsel for the RSLQ which, inter alia, confirm the position stated in oral argument that the RSLQ wished to further amend one paragraph of the draft pleading which was the subject of argument on 3 February 2010 |
“[12] The defendant seeks to mount a case of reliance (para 26(a)), to the effect that it made the payments in question “in reliance upon being charged by the plaintiff”, presumably because of an implied representation that the amounts claimed were payable. It also mounts a case of “mistaken belief” that the amounts were due (para 26(c)(i)). The natural persons who, on behalf of the defendant corporation, did so rely, or hold that belief, should be particularized: Australian Commercial Research and Development Ltd v Commonwealth [1995] 2 Qd R 336, 339. The plaintiff sought such particulars and they were denied, on the basis that the defendant so relied “as a corporate entity”. But the individuals involved should have been named, to enable the plaintiff to meet the claim.
[13] This is particularly significant in view of the affidavit of Mr Kay. He was the person in charge of art unions on behalf of the defendant for much of the relevant period. It was he who dealt with budgets and authorized payments. In his affidavit filed 4 September 2008, he deals in quite a detailed way with the budgetary and payment processes, leading to his assertion that “every charge which RSL Queensland paid to Comprite during my tenure as promoter was correct. There was no overcharging.”
[14] The particular alleged overcharging which assumed prominence at the hearing before me concerns stationery and printing costs, and “mail list rental”.
[15] Mr Kay explained the basis on which the plaintiff was entitled to charge, and did charge, for the former. Its entitlement was agreed upon at a meeting on 31 January 2001. The defendant’s relevant deponent, Mr Mialkowski, was not involved with the art union committee at the time of that agreement. There is nothing in Mr Mialkowski’s affidavit to suggest that the position he adopts, in denying various amounts to the plaintiff in respect of printing and stationery costs after the arrangement between the parties changed, is based on information given to him by any person who did participate at the meeting which led to the agreement.
[16] A fair reading of Mr Mialkowski’s affidavit leads one to conclude that he has no particular factual foundation for the position he has taken in relation to those instances of alleged overcharging. Indeed, when he stopped making payments in those areas, on the basis of a suspicion as to the plaintiff’s entitlement, he capitulated when the plaintiff sought the renewal of the payments. The contrast with Mr Kay’s affidavit is important. This feature bears on whether the counter-claim in its present form can be resurrected, or whether the defendant should start again and thereby confront the precise basis for a formulation of its claim.
[17] The defendant relies of course on David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
[18] The counter-claim is presently inadequate in that it fails to identify the material facts going to why, as a matter of contract, the plaintiff was not entitled to the charges made; in that it fails to identify the natural persons who mistakenly made the payments; and in that it fails to specify the mode of calculation of the alleged excess.”
“... in respect of each alleged item of overcharging by the Plaintiff, specifies the amount of the alleged overcharging ... [and] the natural person or persons who’s (sic) state of mind was the state of mind of the Defendant for the purpose of any alleged reliance, mistake or other allegation of state of mind of the Defendant.”
“[6] The present counter-claim was delivered on 17 November. It identifies members of a committee of the defendant who are alleged to have laboured under the pertinent mistakes.
[7] But the pleading does not identify the person(s) who functioned as the defendant’s guiding mind in authorising the payments that are said to have been made by mistake.
[8] The plaintiff sought particulars to identify the persons who made the payments under the allegedly mistaken beliefs. That information was refused: a decision sought to be justified (see defendant’s solicitor’s letter of 3 February 2009) on the footing that “the payments were made by the [defendant], not by any individual or individuals…”. The reasons of the Chief Justice and Mackenzie J’s order were interpreted to require identification only of person(s) who entertained a mistaken belief, as distinct from the person(s) who made the payment while labouring under the mistakes, with the defendant’s solicitor contending that “the [defendant] made the payments, and the issue is as to who, on behalf of the [defendant] made the mistake alleged.” That stance was also taken at the hearing.
[9] A possible explanation for the reluctance to name those who authorised the payments is that those who were mistaken did not make the payments, and those who authorised the payments may have supposed that the alleged overpayments were not due, but paid them nonetheless, or else, when paying, have been indifferent to whether there was a legal liability to do so: see, generally, K Mason, J W Carter & G J Tolhurst, Restitution Law in Australia, 2nd Ed (2008) [416], [422]. At least that is what seemed to emerge as a distinct possibility from the evidence and, more importantly for present purposes, from yet another amendment to the counter-claim that was proposed during the hearing.
[10] Relevantly, the further amendments now advanced are to this effect: that if the persons who, on behalf of the defendant, laboured under the relevant mistakes had known the truth, they would have acted to prevent the payments being made by those others who actually caused them to be made.
[11] That new case is not pleaded in the alternative. So it assumes, it seems, that those who authorised the payments were not relevantly mistaken or else that any misapprehension on their part was not a cause of the payments.
[12] Nothing was cited to suggest that the new case is fairly arguable: not a case or commentary from anywhere; and that the proposition was advanced does not make it so.
[13] Assuming, as the proposal did, that leave is required to amend the pleadings to raise the new case, the discretion should be exercised against permitting amendments that are not shown to propound a fairly arguable case.
[14] What, then, should be done?
[15] Neither the amended pleading nor the particulars so far furnished identify the natural persons who authorised the payments, despite the Chief Justice having indicated that that should be done and Mackenzie J having ordered it. Nor does the current pleading clearly allege that those who paid were influenced by a mistake to do so. Those considerations, taken with the nine months that have elapsed since the Chief Justice struck out the counter-claim, suggest that affording the defendant yet another chance to plead (and properly particularise) a sensible case may well be pointless and only productive of more delay and expense.
[16] However, the mistakes alleged concern legal liabilities to pay money. So perhaps those who made (or authorised) the payments shared the mistake. And if the payment was made because of the mistake, there may be a right to recover. Moreover, the defendant’s solicitors have sworn an affidavit which indicates that the defendant can identify at least many of those who authorised the relevant payments.
[17] The non-compliance with Mackenzie J’s order and the unsatisfactory state of the pleading and particulars require the material paragraphs of the counter-claim to be struck out. But the defendant should be afforded a (probably final) opportunity to attempt to plead appropriately, but on terms, as to which I shall hear the parties. These might include that there be delivered with the proposed counter-claim: (i) proper particulars; (ii) a letter from the defendant’s solicitor certifying that those who settle the new pleading, after proper enquiry into the facts and the law, have formed the opinion (if they do) that the newly pleaded case has reasonable prospects of success; and (iii) references to the cases, commentaries and any statutory provisions to show that the new pleading advances a case that has reasonable prospects of success.”
“1.The Further Amended Counterclaim filed on 17 November, 2008 is struck out.
THE COURT DIRECTS THAT:
(a)the defendant must deliver to the Plaintiff a draft of its proposed amended counterclaim;
(b)if such draft counterclaim contains any claim for recovery of sums allegedly paid under a mistake:-
(i)when delivering such draft counterclaim, the defendant must also deliver:-
A.a signed statement of the evidence of each person who the defendant wishes to allege held the mistaken belief pursuant to which he or she authorised the defendant to make the relevant payment(s) (which statement need not contain any other evidence); and
B.references to the cases, commentaries and any statutory provisions to show that the proposed new pleading would advance a case that has reasonable prospects of success; and
(ii)the defendant must (without derogating from the order of Mackenzie J made on 22 October, 2008) identify therein:-
A.each person who, on its behalf, authorised or made each such payment; and
B.the substance of the mistake under which such person(s) allegedly authorised or made each such payment.
(a)The plaintiff shall thereupon have judgment upon the counterclaim, with costs thereof, including any reserved costs in these proceedings, and costs of proceedings BS 942 of 2006, such costs to be assessed; and
(b)The plaintiff shall be at liberty forthwith to enter such judgment.
(a)The plaintiff must, by 4.00 pm on Friday, 28 August, 2009 advise the defendant in writing whether it consents to the grant of leave to file and serve a counterclaim in terms of the draft, including (if it does not consent) a concise statement of its reasons therefor;
(b)If the plaintiff does not so consent, the defendant must, by 4.00 pm on Friday, 4 September, 2009, file and serve on the plaintiff:-
(i)an application for leave to file and serve such a counterclaim, returnable as soon thereafter as is mutually convenient to the parties’ respective senior counsel; and
(ii)all affidavits which it proposes to read in support of such application.”
(a)Mr Sydney Kay;
(b)Mr Raymond Townsend;
(c)Mr Geoffrey Opray;
(d)Mr George Mialkowski
“(a)Each of Mr Mialkowski, Mr Opray and Mr Townsend authorised those payments and signed cheques on the defendant’s bank account in respect thereof in circumstances where each of them was ignorant that, upon the proper construction of the Management Agreement:
(i)the services and functions which the plaintiff was obliged to provide and undertake under the Management Agreement included utilizing its buyer database in marketing the defendant’s art unions;
(ii)the only fees payable to the plaintiff for the services and functions it was obliged to undertake under the Management Agreement were those fees specified in the Schedule to the Management Agreement.
(b)further, each of Mr Mialkowski, Mr Opray and Mr Townsend authorised those payments to be made by the defendant and signed the said cheques in the belief that the amounts stated on the invoices and remittance advices were due and payable to the plaintiff under the written Management Agreement in circumstances where the amounts stated on the invoices and remittance advices were not in fact due or payable to the plaintiff.
(c)further, in relation to the additional printing and stationary fees, each of Mr Mialkowski, Mr Opray and Mr Townsend, authorised the payments to be made by the RSLQ and signed the cheques in the mistaken belief that the invoices submitted for payment by the plaintiff to the defendant for printing and stationary were for the defendant’s share of the cost charged by third party printers for printing and stationary, and did not include any addition fee to the plaintiff.
Particulars
The defendant relies on the statements of Mr Mialkowski, Mr Opray and Mr Townsend dated 14 August 2009 provided with this pleading to the plaintiff pursuant to the directions made by Bryne SJA on 19 June 2009.”
“7.I was a signatory to all RSL cheque accounts from 2002 to 2009 and authorised payment to Comprite under this belief.
“2.I now remember that there was a change in the process of payment of Comprite and other creditor invoices.
“2.I have been asked whether the mechanism of payment of Comprite invoices ever changed. Payment of Comprite invoices altered in October of 2002. I was the State Secretary of the RSL and was responsible for the day to day running of the Queensland State headquarters.
Mr Opray then described the process that he followed when authorising the payment of invoices.
“To the best of my knowledge at that particular time I believe that the method of payment of invoices to Comprite may have changed when George Mialkowski was elected Treasurer of RSL Qld in July of 2002. At that same time I was elected a Vice-President of RSL Qld and in doing so also became a member of the RSL Qld State Managing Council.”
He then referred to changes that were effected in the way payments were made to Comprite after Mr Kay had ceased his involvement in the RSLQ, and described the process he followed for authorising payment of Comprite invoices.
“16.I have sought production of copies of the cheques drawn on the relevant bank accounts during the period since the Management Agreement was signed from the Commonwealth Bank. I have been informed by Amber Boggis and believe that she is an officer of the Commonwealth Bank familiar with the defendant’s accounts and that the Bank will be able to produce the cheques, and is exploring methods of doing this in electronic form based on the volume of cheques involved.”
“9.Two matters of significance emerged during the process of identifying and cross-referencing the relevant cheques to which I have referred above. First, it emerged that the CBA had been unable to produce all of the relevant cheques.
(a)No explanation whatsoever is provided from any of Mr Townsend, Mr Opray or Mr Mialkowski for the fact that the written statements they had previously given, and which had been provided in purported compliance with the order of Byrne SJA, were incorrect; and
(b)It is quite wrong for the RSLQ to seek to represent to me, through its solicitor’s affidavit, that the making of payments by electronic transfer was a matter of significance that emerged only during the process of identifying and cross-referencing the relevant cheques after provision of the CD-ROM by the Commonwealth Bank in November 2009.
“I have now been able to locate Ms Mepsted and interview her in relation to the system Comprite adopted for the payment of accounts by RSL.”
He said that in this interview, which occurred on 6 January 2010, Ms Mepsted informed him of matters which he then identified in his affidavit. His deposition as to the matters of which he was informed by Ms Mepsted in that conversation included:
“(h)That an electronic payment system was introduced on or about the 23 October 2002. From that time on Ms Mepsted would enter invoice details into a MYOB accounting system. She would then print from the MYOB program an Electronic Payment Register. Pamela or Brad Olson authorised the Electronic Payment Register by placing their initials or signatures on the electronic payment register report (“EPR”). Now produced and shown to me and marked “PGM1” is a true copy of a sample EPR and corresponding tax invoice signed by Geoff Opray and Pamela Olson authorising a list rental payment for art union 214. A remittance summary sheet would then be sent to the RSL containing details of the invoices and attaching copies of invoices to be paid by the electronic payment. Now produced and shown to me and marked “PGM2” is a true copy of a sample Tax Invoice from Comprite signed and initialled by G Mialkowski, initialled by Pamela Olson for art union 202. ...”
“It may well have been that they had in the back of their minds that electronic payments were used to pay some of these accounts but didn’t convey that ... . The critical point is that the three of them were the only people who were authorised to operate on the accounts and whether that was done by cheque or whether it was done by signing another piece of paper, from which an electronic transfer was effected is, in our respectful submission, not particularly material if you identify in relation to each transaction, as we have, who was the party who authorised that particular [payment].”
“Having had an unfortunate experience with its statement of claim to date, the RSL has retained a new team of counsel and those counsel are reviewing the material and requested further time to plead than that allowed under the timetable ordered by Justice Mullins or forecast by me in my letter dated 29 September 2006.”
“32.In so far as the payments made by the defendant to the plaintiff between 1 April 1999 and on or about 19 December 2001 authorised and made or caused to be made by Mr Kay comprised amounts for the database rental fee and amounts for the additional printing and stationary fees, those amounts were paid by reason of a mistake namely, that:
(a)Mr Kay authorised and made or caused those payments to be made in the belief the amounts were properly payable to the plaintiff, but ignorant that, upon the proper construction of the Management Agreement:
(i)the services and functions which the plaintiff was obliged to provide and undertake under the Management Agreement included utilizing its buyer database in marketing the defendant’s art unions;
(ii)the only fees payable to the plaintiff for the services and functions it was obliged to undertake under the Management Agreement were those fees specified in the Schedule to the Management Agreement and did not include either the data base rental fee or the additional printing and stationary fees;
(iii)the expenses of the art union which the defendant was obliged to pay relating to printing and stationary comprised only the cost of stationery and printing for the defendant’s art unions incurred to third party suppliers.
(b)further or alternatively, Mr Kay authorised and made or caused those payments to be made by the defendant ignorant that, upon its execution on 1 April 1999, the written Management Agreement contained the entire agreement between the defendant and the plaintiff;
(c)further or alternatively, Mr Kay authorised and made or caused those payments to be made in the belief that the amounts stated on the invoices and remittance advices were due and payable to the plaintiff under the written Management Agreement in circumstances where the amounts stated on the invoices and remittance advices were not in fact due and payable to the plaintiff;
(d)further or alternatively, in relation to the additional printing and stationary fee, either:
(i)in the mistaken belief that the invoices submitted for payment by the plaintiff to the defendant for printing and stationary were for the cost charged by third party printers for printing and stationary in relation to the defendant’s art unions; or
(ii)if he knew that the invoices submitted for payment by the plaintiff to the defendant for printing and stationary included the additional printing and stationary fee, in the mistaken belief that the Management Agreement had been varied to provide for the plaintiff to be paid the additional printing and stationary fee.
Particulars
The defendant relies on paragraph 4 of the Affidavit of Mr Kay sworn on 17 October 2008 in this proceeding.”
“Mrs Olson had explained to us that Comprite had compiled large data bases called (I believe) the National Consumer File and the National Business File. She had asked if the RSL was willing to pay a fee for access to those data bases, in order to assist in marketing the art unions. I discussed this with the other members of the committee. We all agreed to pay the fee which Mrs Olson had proposed. At the meeting of the RSLQ Art Union Committee on 19 May 1996, we resolved (as is recorded in the minutes) to approve a charge by Comprite for mail list acquisition and rental at a rate of $90 per 1,000 names on these lists.”
“I intended to do so; and I made no mistake in doing so.”
“I understand that the written agreement [the Management Agreement] does not mention this particular charge. However, as I have explained, the RSLQ Art Union Committee agreed to pay these charges well before the agreement was signed. It continued to pay those charges after the agreement was signed (at least during my time on the Committee).”
“In reliance upon the representations ... and induced thereby, the defendant paid to Comprite the amounts which were invoiced by Comprite.”
“Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”
“111An 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. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully working out in a significant succession of cases (204). On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy (205). It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.” (emphasis added)
(a)the absence of any proper explanation for the circumstances in which the application is brought;
(b)the history of repeated failed attempts to plead a counter-claim properly;
(c)the history of non-compliance with orders and directions made in connection with previous versions of the counter-claim;
(d)the unexplained inconsistencies between the previous and the current statements of Messrs Townsend, Opray and Mialkowski;
(e)the lack of a statement in support by Mr Kay;
(f)the evidence of Mr Kay which undermines the premise on which the proposed counter-claim is sought to be advanced; and
(g)the delay and expense to Comprite which would inevitably follow if leave were granted;
I am not satisfied that this is an appropriate case for the exercise of the discretion to grant leave to the RSLQ to file and serve a further version of its counter-claim. The application filed on behalf of the RSLQ on 25 January 2010 will, therefore, be dismissed with costs.
(b)The defendant shall pay the plaintiff’s costs of and incidental to that application, to be assessed on the indemnity basis.
(a)The plaintiff shall have judgment upon the counter-claim, with costs thereof (including the costs of the plaintiff’s application filed 14 October 2009), and including any reserved costs in respect of previous counter-claims in this proceeding and the costs of proceeding BS 942 of 2006, such costs to be assessed;
(b)The plaintiff shall be at liberty forthwith to enter such judgment.
[1] Comprite Pty Ltd v Returned & Services League of Australia (Queensland Branch) [2008] QSC 234 at [12] – [18].
[2] Comprite Pty Ltd v Returned & Services League of Australia (Queensland Branch) [2009] QSC 163 at [6] – [17].
[3] 3 February 2010, Transcript 1-4 ll 5-8.
[4] UCPR r 5(1).
[5] (2009) 239 CLR 175 at 213.
[6] [2008] QCA 274.
[7] At [66].
