Bingo Holdings Pty Ltd v GC Group Company Pty Ltd

Bingo Holdings Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning an application to amend its pleadings. The dispute arose in the context of civil proceedings where the applicant wished to plead an apportionable claim under section 34 of the *Civil Liability Act 2002* (NSW). The relevant statutory scheme governing the proceedings was Part VIA of the *Competition and Consumer Act 2010* (Cth). The application for leave to appeal was heard by Meagher, Payne and Brereton JJA of the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing the applicant leave to amend its pleadings to include a claim for apportionment under section 34 of the *Civil Liability Act 2002* (NSW). Specifically, the court had to consider whether the proposed amendment was futile or bound to fail, given that the applicant had not identified any particular "concurrent wrongdoer" as required by the statutory framework.

The Court of Appeal dismissed the summons seeking leave to appeal. Their Honours reasoned that the applicant's proposed amendment was fundamentally flawed because it failed to identify any specific concurrent wrongdoer against whom apportionment could be sought. Without such identification, the claim for apportionment under section 34 of the *Civil Liability Act 2002* (NSW) could not be sustained within the context of the proceedings governed by Part VIA of the *Competition and Consumer Act 2010* (Cth). Consequently, the primary judge had correctly refused leave to amend the pleadings.

The Court ordered that the summons seeking leave to appeal be dismissed and that the applicants pay the costs of the summons.