Bate v International Computers (Aust) Pty Ltd

[1984] FCA 224

Re: ERNEST WILLIAM BATE
And: INTERNATIONAL COMPUTERS (AUSTRALIA) PTY. LTD.
VG No. 53 of 1978
(1984) ATPR para 40 - 475 / 2 FCR 526
Practice and Procedure - Limitation of Actions

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.(1)

CATCHWORDS

Practice and Procedure - amendment to statement of claim - whether amounting to a fresh cause of action - whether in substance a counter-claim to a cross-claim - period of limitation for counter-claim to a claim under the accrued jurisdiction of the Court.

TRADE PRACTICES - period of limitation for claims under s.87 of the Act.

Judiciary Act 1903 ss.79 & 80

Trade Practices Act 1974 ss.82 & 87

Limitation of Actions Act (Vic) 1958 s.30

Practice and Procedure - Amendment to statement of claim - Whether a statute-barred amendment may be revived by a cross-claim on the same issue.

Limitation of Actions - Limitation of action for damages under s. 87 of the Trade Practices Act 1974 (Cth) - Amendment of statement of claim raising statute-barred cause of action may be permitted where the same cause of action is the subject of a cross-claim by the defendant.

HEADNOTE

Held: (1) That claims brought under s. 87 of the Trade Practices Act 1974 (Cth) which are supplementary and ancillary to claims for damages under s. 82(1) of the Act are subject to a limitation period of three years.

(2) The limitation period established by state legislation applies to a claim entertained under the accrued jurisdiction of the Federal Court which would otherwise have been heard in a State court. The State Act will apply in terms both to the right to bring the action and to the right to counter-claim.

(3) An amendment to the statement of claim otherwise statute-barred will be permitted where the defendant cross-claims in respect of the same subject matter.

Aurel Forras Pty Ltd v. Graham Karp Developments Pty Ltd (1975) V.R. 202, followed.

HEARING

Melbourne, 1984, May 3; August 3. #DATE 3:8:1984

SUMMONS.

Summons seeking leave to amend the statement of claim.

J. Larkins Q.C. and B. Doyle, for the plaintiff.

G. Beaumont, for the defendant.

Cur. adv. vult.

Solicitors for the plaintiff: Paving Whiting & Byrne.

Solicitors for the defendant: Moules.

G.F.V.

ORDER

The application by the plaintiff for leave to amend its statement of claim to the form produced to the Court on 5 April 1984 be allowed.

The costs of this application be costs in the cause.

Orders accordingly.

JUDGE1

The matter was commenced in September 1978 by a writ of summons, with statement of claim annexed, issued under the rules then applying to this Court; it has since been ordered that the matter proceed under the Federal Court Rules, but it is convenient in these reasons to continue to refer to the parties as plaintiff and defendant. The defendant entered an appearance seven months later and filed a request for further and better particulars six months after that. Then nothing happened, so far as…