Boulton, R.l. v Westpac Banking Corporation

[1991] FCA 388

IN THE FEDERAL COURT	)
1
OF AUSTRALIA	1 No. VG 336 of 1986
VICTORIAN DISTRICT REGISTRY )	1
1
G E N E m DIVISION	1
BETWEEN:

ROBERT LEWIS BOULTON AND ANOR

Applicant

- and -

.

WESTPAC BANKING CORPORATION AND ANOR

Respondent

--	JUDGE-	Heerey J.
PLACE :	Melbourne
m:	28 June 1991

EX TEWORE m O N S FOR JUDGMENT

On 15 October 1987, Ryan J. made an order directing that the

applicants have leave to amend the statement of claim as they

might be advised, that the amended statement of claim be filed and served within 21 days and that the directions hearing be adjourned to 4 December 1987. In fact, the amended statement of claim was not delivered until 9 March 1988. In the meantime, there had been discussions between the parties' solicitors concerning substantially, I gather, questions of discovery. In any event, in an affidavit sworn on 2 August 1988, the first respondent's solicitor, MS Belinda Lim, deposed that at that period it had been agreed between her and the solicitor having the carriage of the matter for the applicants that:

I have found this application to amend the first respondent's

defence a difficult matter and I only take the course of delivering reasons ex tempore because I am conscious of the delay that has already occurred in this case before the merits of the matter are reached.

The application was filed on 18 September 1986 together with a statement of claim which alleged various breaches of s.52 of the Trade Practices Act said to have occurred in December of

1984.

".

"No further steps were to be taken in the proceeding u n t ~ l	after
the aforementioned meeting had been held."

The meeting referred to was a meeting that was to take place between the legal representatives of the applicants and the first respondent for the purpose of discussing issues in the proceedings and possibly settlement proposals. For a number of reasons that meeting did not take place until 3 March 1988. The directions hearing on 4 December 1987 was adjourned.

On 11 March 1988, Northrop J. made an order that the amended statement of claim which had been delivered on 3 March "stand pursuant to the leave of Ryan J, granted on 15 October 1988 as the further amended statement of claim and application (sic). ''

I should say that the amended statement of claim delivered in

March 1988 (which was the second amended pleading) raised quite distinct and new allegations against the respondents. They went well beyond what was contained in the initial statement of claim. The amendment which M r Archibald QC for the first respondent seeks leave to make is as follows:

"Further any cause or causes of action against the first respondent constituted by or arising from the representations alleged in paragraph 8 of the second amended statement of claim,

is or are barred by the operation8 at section 8 2 ( 2 ) and 87(1)CA(b)
of the Trade Practlces Act 1974."

The arguments that were raised by Mr Ritter QC against the making of the amendment were as follows. First, on the proper construction of Ryan J.'s order the amended statement of claim delivered in March 1988 was the pleading of which his Honour spoke. It was therefore within the terms of that order and is to be treated as being made in October 1987, and hence before the expiration of the three year period in December 1987.

I think the short answer is that, as Mr Archibald puts it, the .. relevant question here is not when leave was given or when it was complied with, but when the amended pleading was in fact filed and delivered. I note also in this context 0.13 r.6 of the Federal Court Rules.

Secondly, Mr Ritter argued that there was a clear case of estoppel here. He relied on an affidavit sworn today by

Mr Ross Norman Freeman, a solicitor employed by the

applicants' solicitors. Mr Freeman deposed from information and belief based on a conversation with a Mr Carey, the applicants' former solicitor who is now working in Perth, that in substance the agreement deposed to by Miss Lim had in fact been made in 1987 and 1988, and that were it not for the

would have filed and served the amended statement of claim	proposed meeting discussed in October 1987 the applicants
pursuant to the order of Ryan J. on 15 October 1987 within 21 days of the date of the order. Also it is said that the amended statement of claim would have been filed in time had the meeting not been proposed.
While on the face of it that evidence by the solicitors on both sides who were handling the matter in 1987 carries great weight, a finding that a party is estopped from raising a plea which as a matter of law is open to him, I think properly depends on a full assessment of all relevant evidence.
The first respondent has not had the opportunity to obtain instructions on this matter. It may be that investigations do not reveal any other facts which would contradict or qualify what it is said by Miss Lim and Mr Carey. Nevertheless I think it would be wrong for me to summarily decide now, and in the state of the material presently available, the applicants' estoppel contention.
Thirdly, the applicants pointed out that this plea could have been contained in the amended defence delivered on 15 April 1988 and that there was no explanation for the long delay. It is trbe there was no evidence tendered as to the reason for this delay, but since a plea under the statute of limitations is a matter of law and depends simply on the date the claim is made compared with the date when the alleged cause of action arose, it may be not unreasonable to infer that it is something which occurred to different legal minds at a later stage. As to prejudice I think it is correct to say in this situation that any prejudice the applicants may have suffered by the delay can be properly compensated for in costs.
Finally, there is a question which I found rather difficult. Mr Ritter argues that on the basis of Sneade v Wotherton Barvtes and Lead Minina Com~anv Limited [l9041 1 KB 295, the
effect of an amendment is that it speaks from the date of the
original pleading. It was said that the well known rule in Weldon v Neal (1887) 19 QBD 394, was complementary to that. The whole purpose of the Weldon v Neal rule was to enable the party who had a potential limitation defence to oppose an amendment which would raise the claim to which the limitation defence was applicable, because were that not so, once the amendment was made the limitation defence would be defeated.
This matter was touched on comparatively recently in Bankina Group Limited v Larcos (1987) 13 NSWLR 286.
In the time available it has not been possible to analyse the cases. Indeed, there may well be other cases bearing on what one would think would be a not unprecedented incident in the course of litigation. Mr Archibald argues that the procedural conduct of litigation cannot override the limitations prescribed in the Trade Practices Act and have the effect that something which in fact was not done until March 1988 is treated as having been done in September 1986.
I think that the fairest course is to leave this point open. Mr Archibald accepted as a condition of granting leave, and I impose such a condition accordingly, that it is open to the applicants to argue at the appropriate time that the effect of the amendment made in March 1988 was that the claim contained in that amendment is treated as having been made in September 1986.
And finally, without making this an express condition of the leave to amend, I indicate that I would be very anxious to avoid any unnecessary expense to the parties by, in particular, calling Mr Carey as a witness. And I give an indication that I would be inclined to make appropriate procedural directions to avoid such expense.
I will therefore grant leave to make the amendment.
application to amend the defence be paid by the first I order that the applicants' costs of and incidental to this
respondent in any event, and I order the applicants' costs thrown away by reason of the amendment be paid by the first respondent and that the applicants have leave to amend their reply.
Mr Ritter applied for leave to appeal against this order. I
refuse that application. The granting of the amendment is a matter of practice and procedure and thus subject to the restrictions on appellability laid down in Adam P Brown Male
Fashions Ptv Ltd v Phili~ Morris Inc (1981) 148 CLR 170.
Moreover, the applicants will still have the opportunity to raise fully at a subsequent stage in this proceeding the legal and factual arguments which they contend will defeat the plea.

I certify that this and the preceding five ( 5 ) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Appearances

Counsel for the Applicant:	Mr G R Ritter QC with Mr P Bingham
Solicitors for the Applicant:	Minter Ellison
Counsel for the Respondent:	Mr A C Archibald QC with
Mr M J Colbran
Solicitors for the Respondent:	Dunhill Madden Butler