David Barry Logistics Pty Ltd v The State of Victoria (No 3)

David Barry Logistics Pty Ltd, the appellant, brought an action against the State of Victoria, the respondent, in the Supreme Court of Victoria, seeking to amend an originating process after final orders had been made. The appellant sought to amend its claim in the writ of summons and statement of claim in order to include additional relief. The respondent opposed the application on the grounds that the court was functus officio and lacked the power to grant the relief sought. The primary issue for the court was whether it had the power to grant relief that would amend the originating process after final orders had been made. A secondary issue was the effect of a notation in ‘Other Matters’ in the orders of the court.

The court held that it did have the power to grant the relief sought by the appellant. The court found that the power to grant relief under section 47 of the Civil Procedure Act 2010 (Vic) was not limited to situations where final orders had not yet been made. The court found that the notation in ‘Other Matters’ in the orders of the court did not limit its power to grant the relief sought. The court found that the liberty to apply was not limited to situations where final orders had not yet been made, and that the court could grant the relief sought in the application. The court found that the principles set out in Abigroup Ltd v Abignano, Patterson v Humfrey, Eckert v Roberts, Dautry v Wemple, Meadows v Meadows, Achurch v The Queen and PCCEF Pty Ltd v Geelong Football Club Ltd were applicable to the case.

The court made orders granting the appellant leave to amend the writ of summons and statement of claim, and setting aside the final orders made in the case. The court found that the appellant had established a good arguable case for the relief sought, and that it was just and convenient to grant the relief sought. The court found that the respondent had not established that the making of the orders sought would cause an injustice or prejudice to any party.