Batten v Container Terminal Management Services Limited [2001] FCA 1539 (26 October 2001)

Last Updated: 19 November 2001

FEDERAL COURT OF AUSTRALIA

Batten v Container Terminal Management Services Limited [2001] FCA 1539

ROBERT GEORGE BATTEN v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED, FYNWEST PTY LTD, MICHAEL WELLS, PETER KILFOYLE, PATRICK STEVEDORES NO 1 PTY LTD, PATRICK STEVEDORES NO 2 PTY LTD, PATRICK STEVEDORES NO 3 PTY LTD, NATIONAL STEVEDORING TASMANIA PTY LTD, PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD, LANG CORPORATION LIMITED, STRANG PATRICK HOLDINGS PTY LTD, NATIONAL STEVEDORING HOLDINGS PTY LTD, PLZEN PTY LTD, INTRAVEST PTY LTD, CUMBERLANE HOLDINGS PTY LTD, EQUITIUS PTY LTD, JAMISON EQUITY LIMITED, SERENADE PTY LTD, SCARABUS PTY LTD, PATRICK STEVEDORES HOLDINGS PTY LTD, PATRICK STEVEDORES OPERATIONS PTY LTD, CHRISTOPHER D'ARCY CORRIGAN, WILLIAM CLAYTON, ROBERT DUNN

QG 177 of 1998

AND

ANTHONY WAYNE GRAHAME v LANG CORPORATION LIMITED, CHRISTOPHER D'ARCY CORRIGAN, PCS OPERATIONS PTY LTD, PCS RESOURCES PTY LTD, P AND C STEVEDORES PTY LTD, DONALD GORDON McGAUCHIE, PAUL XAVIER HOULIHAN and JAMES WILLIAM FERGUSON

Q132 of 2000

KIEFEL J

26 OCTOBER 2001

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG177 OF 1998

BETWEEN:

ROBERT GEORGE BATTEN APPLICANT

AND:

CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED FIRST RESPONDENT FYNWEST PTY LTD ACN 080 502 343 SECOND RESPONDENT MICHAEL WELLS THIRD RESPONDENT PETER KILFOYLE FOURTH RESPONDENT PATRICK STEVEDORES NO 1 PTY LTD ACN 003 621 645 (Under Administration) SIXTH RESPONDENT PATRICK STEVEDORES NO 2 PTY LTD ACN 003 893 141 (Under Administration) SEVENTH RESPONDENT PATRICK STEVEDORES NO 3 PTY LTD ACN 010 815 362 (Under Administration) EIGHTH RESPONDENT NATIONAL STEVEDORING TASMANIA PTY LTD ACN 009 477 150 (Under Administration) NINTH RESPONDENT PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD ACN 156 292 687 TENTH RESPONDENT LANG CORPORATION LIMITED ACN 008 660 124 ELEVENTH RESPONDENT STRANG PATRICK HOLDINGS PTY LTD ACN 003 893 847 TWELFTH RESPONDENT NATIONAL STEVEDORING HOLDINGS PTY LTD ACN 060 623 529 THIRTEENTH RESPONDENT PLZEN PTY LTD ACN 065 905 571 FOURTEENTH RESPONDENT INTRAVEST PTY LTD ACN 001 726 496 FIFTEENTH RESPONDENT CUMBERLANE HOLDINGS PTY LTD ACN 000 079 078 SIXTEENTH RESPONDENT EQUITIUS PTY LTD ACN 065 981 526 SEVENTEENTH RESPONDENT JAMISON EQUITY LIMITED ACN 008 648 655 EIGHTEENTH RESPONDENT SERENADE PTY LTD ACN 008 644 655 NINETEENTH RESPONDENT SCARABUS PTY LTD ACN 008 645 387 TWENTIETH RESPONDENT PATRICK STEVEDORES HOLDINGS PTY LTD ACN 060 462 919 TWENTY-FIRST RESPONDENT PATRICK STEVEDORES OPERATIONS PTY LTD ACN 065 375 840 TWENTY-SECOND RESPONDENT CHRISTOPHER D'ARCY CORRIGAN TWENTY-THIRD RESPONDENT WILLIAM CLAYTON TWENTY-FOURTH RESPONDENT ROBERT DUNN TWENTY-FIFTH RESPONDENT

AND:

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q132 OF 2000

BETWEEN:

ANTHONY WAYNE GRAHAME APPLICANT

AND:

LANG CORPORATION LIMITED (ACN 008 660 124) FIRST RESPONDENT CHRISTOPHER D'ARCY CORRIGAN SECOND RESPONDENT PCS OPERATIONS PTY LTD (ACN 081 231 049) THIRD RESPONDENT PCS RESOURCES PTY LTD (ACN 081 231 021) FOURTH RESPONDENT P AND C STEVEDORES PTY LTD (ACN 081 225 078) FIFTH RESPONDENT DONALD GORDON McGAUCHIE SIXTH RESPONDENT PAUL XAVIER HOULIHAN SEVENTH RESPONDENT JAMES WILLIAM FERGUSON EIGHTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	26 OCTOBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Ex Tempore (Costs)

THE BATTEN PROCEEDINGS

1 I will deal with the outstanding issue of costs arising out of the application for leave to amend heard on 26 March 2001 in respect of which judgment was given on 4 April 2001 and to which the orders dated 11 April 2001 refer. I have reviewed the matter and reconsidered my view, earlier expressed, with respect to costs.

2 In each of the Batten and Grahame matters, I consider that the applicants should pay one-half of the respondents' costs of the application for leave to amend and the costs thrown away by the amendment. In the Batten proceedings, the Lang respondents, there referred to as the Patrick companies, succeeded in requiring further amendment to make clear the basis upon which accessorial liability was claimed and whether reliance loss was sought. Other orders relating to the need to furnish statements as to reliance are those which would, in any event, have been made in the management of the case.

3 The respondents attacked the proposed further amended pleading on other bases, which were not shown to have substance. Submissions that the nature of the wrongful conduct was unclear were not accepted. The complaints relating to the joint venture alleged were not considered to warrant an order, for they appeared to take the matter nowhere. That is to say a substantial part of the respondents' complaints were either unfounded or did not concern matters which were likely to prejudice them if left in their present form and for argument at the hearing.

THE GRAHAME PROCEEDINGS

4 Similar comments apply to the Grahame proceedings, except that there were additional matters of complaint raised. Again, the orders were largely limited to requiring the applicant to make clear the claims of accessorial liability. Complaints about the clarity of the allegations and, additionally, whether aspects of the case could be shown now to be wrongly based, did not result in orders. At this point in the proceedings, and after so many interlocutory hearings, it is less likely that respondents will be able to claim a lack of understanding about a case or that they are prejudiced. The complaints in that regard made by them should not attract an award of costs in their favour.

5 The PCS respondents also claimed the entire costs that they incurred in the Batten proceedings on the basis that they are no longer involved in them. A difficulty is presented by the fact that the current action against them was for a long time conducted jointly with the Batten matter until they were split by the consent of the parties. On one view, the Batten proceedings, until recently, are to be taken as the beginning of both actions. In these circumstances, it seems to me that the preferable course is to leave the question of those costs over to the conclusion of the proceedings when other orders as to costs are made.

6 The respondents in each of the proceedings also seek orders that the costs to be paid by the applicant should be taxed and paid forthwith. I accept that the applicants' pleadings have required a number of amendments. However, the hearing and their further amendment was only partially necessary, as the orders for costs reflect. Further, the matter is now scheduled for trial in early next year. It could not be said that the respondents will now suffer much in terms of delay in payment of their costs, and at the conclusion of the trial the parties' liability to each other in that respect will be better able to be assessed. I add that the parties are, from this point, likely to be taken up with trial preparation, even if the taxation process could be undertaken and completed before the conclusion of the trial.

7 In these circumstances, the orders for costs will simply be that the applicant pay one-half of the respondents' costs of the application for leave to amend and that the applicant pay the whole of the respondents' costs thrown away by the amendments.

8 There will also be an order that, pursuant to O 22 r 2(d), the applicant in the Batten proceedings have leave to discontinue the proceedings against the PCS respondents.

9 I am not, however, inclined to order that the costs to be paid by the applicants ought to be taxed and paid forthwith. Consistent with the reasons I have given, it seems to me that the applicants cannot really say that they will be held out for too long, given that there is a

trial early next year.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .

Associate:

Dated: 26 October 2001

IN THE MATTER: QG 177 of 1998

Counsel for the Applicant:	Mr H Fraser QC and Mr M Jarrett
Solicitors for the Applicant:	Klooger Phillips Scott
Counsel for the Tenth to Twenty-Fifth Respondents:	Mr RM Peters
Solicitors for the Tenth to Twenty-Fifth Respondents:	Arnold Bloch Leibler

AND:

IN THE MATTER: Q 132 of 2000

Counsel for the Applicant:	Mr M Jarrett
Solicitors for the Applicant:	Klooger Phillips Scott
Counsel for the First and Second Respondents:	Mr CM Scerri QC and Mr RM Peters
Solicitors for the First and Second Respondents:	Arnold Bloch Leibler
Counsel for the Third to Eighth Respondents:	Mr P Jopling QC and Mr J Bourke
Solicitors for the Third to Eighth Respondents:	Minter Ellison
Date of written submissions:	30 April 2001, 4 May 2001, 23 August 2001, 4 September 2001
Date of Hearing:	18 October 2001

IN THE MATTER: QG 177 of 1998

Counsel for the Applicant:	Mr M Jarrett
Solicitors for the Applicant:	Klooger Phillips Scott
Counsel for the Tenth to Twenty-Fifth Respondents:	Mr RM Peters
Solicitors for the Tenth to Twenty-Fifth Respondents:	Arnold Bloch Leibler

AND:

IN THE MATTER: Q 132 of 2000

Counsel for the Applicant:	Mr M Jarrett
Solicitors for the Applicant:	Klooger Phillips Scott
Counsel for the First and Second Respondents:	Mr RM Peters
Solicitors for the First and Second Respondents:	Arnold Bloch Leibler
Counsel for the Third to Eighth Respondents:	Mr P Jopling QC and Mr J Bourke
Solicitors for the Third to Eighth Respondents:	Minter Ellison
Date of Hearing:	26 October 2001
Date of Judgment:	26 October 2001