Media Ocean Limited v Optus Mobile Pty Limited (No 9) [2010] FCA 1165

Media Ocean Limited v Optus Mobile Pty Limited (No 9) [2010] FCA 1165

Although the proposed amendments were substantial, late, likely to require further discovery and evidence, and caused real prejudice to Optus, the delay was explained as errors of judgment rather than tactical forensic conduct, the amendments were important and at least arguable, and Anshun-related considerations weighed against precluding the claims. Leave should therefore be granted only with costs consequences in Optus's favour and subject to Media Ocean pleading the nature and source of the alleged obligation on Optus to carry calls to Media Ocean numbers.

Jurisdiction
Australia
Judgment Date
27 October 2010
Procedural Posture
Practice and Procedure Application to Amend Application and Statement of Claim, Including Joinder of Another Party / Notice of Motion for Leave to Amend and Joinder; Costs of Earlier Strike Out Motion
Outcome
Respondent awarded costs of the notice of motion filed 22 March 2010; proceeding listed for directions. The reasons indicate leave to amend should be granted subject to costs and pleading the source of the alleged obligation.
Legal Topics
['amendment of Pleadings' 'joinder' 'overarching Purpose in Civil Practice and Procedure' 'delay and Prejudice' 'costs Thrown Away' 'anshun Estoppel']
['practice and Procedure'] ['amendment of Pleadings' 'joinder' 'overarching Purpose in Civil Practice and Procedure' 'delay and Prejudice' 'costs Thrown Away' 'anshun Estoppel']

Case Brief

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Procedural Posture

Practice and Procedure Application to Amend Application and Statement of Claim, Including Joinder of Another Party / Notice of Motion for Leave to Amend and Joinder; Costs of Earlier Strike Out Motion

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to amend their application and statement of claim, including by joinder of another related party.' 'Whether the delay in seeking amendments, and prejudice to the respondent, should lead to refusal of leave.' 'Whether the proposed amendments were incoherent or futile.' "What costs consequences should follow from the applicants' late and dilatory conduct and the withdrawal of the proposed reply."]

Ratio Decidendi

Although the proposed amendments were substantial, late, likely to require further discovery and evidence, and caused real prejudice to Optus, the delay was explained as errors of judgment rather than tactical forensic conduct, the amendments were important and at least arguable, and Anshun-related considerations weighed against precluding the claims. Leave should therefore be granted only with costs consequences in Optus's favour and subject to Media Ocean pleading the nature and source of the alleged obligation on Optus to carry calls to Media Ocean numbers.

Court Disposition

Respondent awarded costs of the notice of motion filed 22 March 2010; proceeding listed for directions. The reasons indicate leave to amend should be granted subject to costs and pleading the source of the alleged obligation.

Orders

  • ["The applicants pay the respondent's costs of the notice of motion filed 22 March 2010 including the costs incurred on and in connection with the hearing of that motion in part on 1 April 2010, as agreed or taxed." 'List the proceeding for directions at 9.30am on 2 November 2010.']