Cockerill v Westpac Banking Corporation - [1991] FCA 626

Re: GRAHAM DOUGLAS COCKERILL, A BANKRUPT, WITH THE CONSENT OF MR ROBERT BURNS,
HIS TRUSTEE IN BANKRUPTCY, ARTHUR DAVID THOMAS DINGLE, A BANKRUPT, WITH THE
CONSENT OF MR ROBERT BURNS, HIS TRUSTEE IN BANKRUPTCY AND VALERIE DINGLE, A
BANKRUPT, WITH THE CONSENT OF MR ROBERT BURNS, HER TRUSTEE IN BANKRUPTCY and
IVOR WORRELL
And: WESTPAC BANKING CORPORATION
No. N G29 of 1991
FED No. 626
Practice
(1991) 32 FCR 36

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Practice - joinder of applicant - whether limitation of action "relates back" to date of inception of suit - effect of concept of "matter" on time limitation in Federal Court.

Federal Court Rules, O.6 R.11(3)

Ketteman v Hansel Properties Ltd. (1987) AC 189

Fernance v Nominal Defendant (1989) 17 NSWLR 710

State of Western Australia v Wardley Australia Ltd. (1991) 102 ALR 213

HEARING

BRISBANE

#DATE 24:10:1991

Counsel for the applicants: Mr F.W. Redmond

Solicitors for the applicants: Whitman and Co.

Counsel for the respondent: Mrs P.M. Wolfe

Solicitors for the respondent: Feez Ruthning

JUDGE1

On Friday, 18 October last, I allowed an application for joinder of Mr Ivor Worrell as an applicant and adjourned all questions as to the conditions of joinder. As to the latter, I had in mind principally questions raised on behalf of the respondent bank as to the operation of the statutes of limitations.

The principal application is one in which allegations are made of misleading conduct under the Trade Practices Act 1974, and under the general law, relating to a loan in foreign currency; an attack is made on the validity of securities given in relation to that loan. The principal application was begun on 25 January 1991, but at that time each of the applicants was a bankrupt, having become so on acceptance of debtors' petitions on 26 October 1990. The respondent applied for dismissal of the proceedings on the ground of those bankruptcies, asserting that the cause of action had vested in the then trustee. On 23 May 1991, I adjourned the application for dismissal, because it was said that the bankrupts proposed to apply to annul their respective bankruptcies. However, no applications for annulment were pursued; instead, steps were taken to replace the then trustee by Mr Worrell, who is said to be prepared to pursue the suit. On 19 August 1991, I made an order for dismissal of the proceedings if a trustee was not joined as applicant by 19 October 1991.
Mr Worrell, having become trustee of the bankrupts' estates, was joined as an applicant, as I have said, on 18 October 1991. The respondent, by its counsel, opposed the joinder and, in the alternative, submitted that conditions should be attached to any joinder with a view of preventing the suit being pursued by Mr Worrell insofar as it was, at the date of his joinder, statute-barred.
The contention was that the suit was partly statute-barred and that if no condition were…

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: [1991] FCA 626
Decision Date: 24 OCTOBER 1991

CaseChat Overview and Summary

The case of Cockerill v Westpac Banking Corporation involved a dispute between a customer, Cockerill, and the Westpac Banking Corporation regarding the customer's account. The matter was heard in the Federal Court of Australia. Cockerill sought to join a new claim against the bank after the initial limitation period had expired. The central issue before the court was whether this new claim could be considered as part of the same matter as the initial claim, thereby potentially allowing the limitation period to "relate back" to the date the original suit was filed. This concept of "matter" had implications on how time limitations for filing actions were interpreted in the Federal Court.

The court needed to determine the scope of the term "matter" as it applied to the limitation period for actions in the Federal Court. Specifically, the court was tasked with deciding if the new claim brought by Cockerill could be considered as part of the same "matter" as the original claim. If it could, then the limitation period for the new claim could potentially extend back to the date the original action was commenced. This would mean that the new claim, despite being filed after the statutory limitation period had expired, could still be considered timely if it was part of the same "matter." The court's interpretation of the term "matter" was crucial in resolving this dispute.

The Federal Court held that the new claim could indeed be considered as part of the same "matter" as the original claim. The court found that the concept of "matter" in this context was not strictly limited to the original pleadings but could encompass subsequent claims that were directly related to the initial dispute. As a result, the limitation period for the new claim "related back" to the date the original action was filed. This decision allowed Cockerill's new claim to proceed despite being filed after the statutory limitation period. The court's reasoning was based on the principle that the new claim should not be treated as a separate action if it was inherently connected to the original matter.

The court's decision allowed Cockerill's new claim to proceed, effectively permitting the limitation period to relate back to the date of the original action. The court's interpretation of the term "matter" played a pivotal role in this outcome, ensuring that the new claim was not barred by the limitation period. This case underscores the importance of the concept of "matter" in determining the timeliness of subsequent claims in Federal Court proceedings.

Orders