Valentino Gennarini SRL v. Andromeda Navigation Inc.

This was a simplified action for disbursements incurred and for ship agency services rendered by the Plaintiff at the port of Taranto, Italy. The case is of interest because of the way a number of procedural matters were decided. The Defendant sought to adduce affidavit evidence that it was acting as agent for a third party. The Plaintiff applied to strike this evidence on the basis that the agency relationship the Defendant sought to prove was never pleaded. The Court agreed and struck the evidence, holding that “the Court should not consider any evidence which is irrelevant to the pleadings as they are formulated or which contradicts the pleadings”. The Defendant also applied for short leave to bring a motion to amend its pleadings. The Court reiterated the general rule that an amendment should be allowed for the purpose of determining the real question in controversy between the parties provided that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice. The Court denied the Defendant’s motion to amend its Statement of Defence because the motion was presented one day before trial when it could have been brought many months earlier, the amendment was not being made to refocus and particularize points in controversy but rather sought to introduce a distinct and entirely new cause of defence, and the proposed amendments would inevitably delay an expeditious trial. At the hearing on the merits the Plaintiff sought to introduce documents by way of an affidavit which effectively incorporated by reference every document listed in the Plaintiff’s Affidavit of Documents which the Plaintiff wished to introduce as evidence in chief. Despite the objections of the Defendant the Court accepted as filed the original documents incorporated by reference in the affidavit since they had been listed in the Plaintiff’s Affidavit of Documents and served on the Defendant over one year earlier together with copies of the documents themselves. As a final procedural point, the Court permitted the Plaintiff to read in excerpts from the transcript of an oral examination for discovery conducted before the action was converted to a simplified action. While the rules on simplified procedures do not provide for read-ins of oral discovery because there can be no oral examination for discovery, they do not preclude such read-ins when the oral examination was conducted before the action was converted to a simplified action.