Blown Plastics Pty Ltd v Bayer Australia Ltd - [2010] FCA 19

FEDERAL COURT OF AUSTRALIA
Blown Plastics Pty Ltd v Bayer Australia Ltd [2010] FCA 19

Citation: Blown Plastics Pty Ltd v Bayer Australia Ltd
[2010] FCA 19

Parties: BLOWN PLASTICS PTY LTD v BAYER AUSTRALIA LTD

File number(s): SAD 161 of 2009

Judges: BESANKO J

Date of judgment: 13 January 2010

Legislation: Federal Court of Australia Act (1976) (Cth s 59(2B)
Trade Practices Act 1974 (Cth) s 71
Federal Court Rules O 13 r 2(7)(a)

Cases cited: White v Eurocycle Pty Ltd (1995) 64 SASR 461
Mullett v Gabriel (1989) 52 SASR 330

Date of hearing: 22 December 2009

Place: Adelaide

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 6

Counsel for the Applicant: Ms G Walker

Solicitor for the Applicant: DMAW Lawyers

Counsel for the Respondent: Mr G Cuppola

Solicitor for the Respondent: Fisher Jeffries

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 161 of 2009

BETWEEN:
BLOWN PLASTICS PTY LTD
Applicant

AND:
BAYER AUSTRALIA LTD
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

13 JANUARY 2010

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The applicant be granted leave to file and serve an amended statement of claim and an amended application, within two days.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 161 of 2009

BETWEEN:
BLOWN PLASTICS PTY LTD
Applicant

AND:
BAYER AUSTRALIA LTD
Respondent

JUDGE:

BESANKO J

DATE:

13 JANUARY 2010

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application by the applicant in this proceeding to amend its Application and Statement of Claim. The critical issue on the application to amend is the date upon which the amendments are to take effect. The applicant asks that the amendments take effect from the date upon which the proceeding was commenced, namely, 21 August 2009. The parties are agreed that that will be the effect of a grant of leave to amend without qualification. The respondent does not oppose the grant of leave to amend, but it seeks a condition that the amendments operate only from the date it was first notified of the proposed amendments, namely, 1 December 2009. It seeks such a condition so that it may raise a limitation defence in relation to any damage claimed by the applicant which accrued after 21 August 2003 but before 1 December 2003.
The applicant’s claim relates to the supply to it by the respondent of a quantity of polycarbonate resin in late August 2003. In its existing Statement of Claim, the applicant alleges that the polycarbonate resin was contaminated and was not fit for the purpose (made known to the respondent) of the manufacture of bottles for use by producers of spring water and other beverages. The applicant alleges breach of contract, breach of a duty of care and a breach of an obligation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 19
Decision Date

CaseChat Overview and Summary

Blown Plastics Pty Ltd initiated legal proceedings against Bayer Australia Ltd in the Federal Court of Australia, seeking damages for the supply of contaminated polycarbonate resin in late August 2003. The applicant, Blown Plastics, alleged that the resin was unfit for the intended purpose of manufacturing bottles for beverage producers, leading to claims of breach of contract, breach of duty of care, and implied contractual obligations under the Trade Practices Act 1974 (Cth). Bayer opposed the amendment, advocating for the amendments to take effect only from 1 December 2009, the date it was first notified of the proposed changes, to preserve its right to raise a limitation defence for damages claimed for periods between 21 August 2003 and 1 December 2003. The court was tasked with determining whether the amendments should be allowed to take effect from the commencement of the proceeding on 21 August 2009 or from the date of notification of the proposed amendments, 1 December 2009.

The court considered the statutory authority to grant leave to amend under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules, which allow amendments under certain conditions. It also evaluated the absence of prejudice to Bayer, as the existing Statement of Claim still covered the period up to 1 December 2009. The court highlighted that the delay in proposing the amendments was not substantial and that there was no significant prejudice to Bayer other than the loss of the limitation defence. It referred to authorities such as White v Eurocycle Pty Ltd and Mullett v Gabriel, which underscored that the absence of prejudice to the opposing party is a significant consideration in granting leave to amend. Given these considerations, the court concluded that it was appropriate to allow the amendments to take effect from the date the proceeding was commenced.

The Federal Court granted Blown Plastics leave to amend its Application and Statement of Claim, allowing the amendments to take effect from the date the proceeding was commenced, 21 August 2009. The court found that there was no substantial prejudice to Bayer, and the delay in proposing the amendments was not significant. Therefore, the amendments were permitted to take effect from the original date of the proceeding. This decision ensures that the applicant can proceed with its claims, while the respondent retains the right to defend itself against the amended claims based on the existing allegations within the period specified.

Orders