McKerracher J
Introduction
In this case, the Court considered an application by the Buurabalayji Thalanyji Aboriginal Corporation (BTAC) seeking leave to amend its defences to three cross-claims. The key question was whether the amendments added sufficiently to BTAC's case to warrant the prejudice to the cross claimants given that the trial was due to commence in five weeks.
Arguments
In opposing BTAC’s application, the cross claimants (Chevron Australia Pty Ltd, the State of Western Australia and Onslow Salt Pty Ltd) relied on the ruling made in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 8) [2020] FCA 1488 (BTAC (No 8)). In that decision, BTAC sought to avoid the operation of a springing order which would have struck out substantial portions of its defences to the cross-claims. BTAC also applied to vacate the trial dates, which was immediately refused. BTAC was given a further week to file its evidence to avoid the springing order. In accordance with that order, BTAC filed four witness statements in defence of the cross-claims.
The Amendments
In the present proceedings, BTAC applied to amend its defences to conform to the evidence that was properly available. The amendments sought to:
Reformulate the estoppel claim by re-particularising the precise nature of the two alleged representations by Chevron
Add a fresh claim for misleading or deceptive conduct by silence. BTAC claimed that while purporting to negotiate the native title agreement in good faith with BTAC, Chevron was also negotiating the removal of the fill from the borrow pits with Onslow Salt on the pretence that Onslow Salt would not apply for a new mining tenement or for its Mining Lease to be varied and did not disclose these facts to BTAC;
Particularise the relief sought in respect of the Misleading or Deceptive Conduct Claim and the Silence Claim by adding a counterclaim for a variation of the native title agreement for damages.
Decision
McKerracher J allowed BTAC to amend their pleadings in the terms sought, in spite of the fact the cross-claimants had to wait a long time to have a relatively simple point resolved and almost all the responsibility for the delay rested with BTAC. His Honour took into account that BTAC’s legal representation had recently changed and the fact they had been under special administration for much of the year.