FEDERAL COURT OF AUSTRALIA
Energex Limited (ACN 078 849 055) v Alstom Australia Limited (ACN 000 215 092)
[2005] FCAFC 215PRACTICE AND PROCEDURE – interlocutory judgment – leave to appeal – criteria for leave – refusal of motion for summary dismissal of claim and strike out of statement of claim – arguable questions in relation to application of s 82(2) of the Trade Practices Act 1974 (Cth) – availability of relief under s 87 – whether abuse of process – viability of a plea of deceit associated with collusive tendering – judgment at first instance not attended with doubt – motion for leave dismissed
TRADE PRACTICES – collusive tendering – contraventions of s 45 of Trade Practices Act – duration of over 20 years – whether claims for damages time barred – accrual of causes of action – application of s 82 to anti-competitive conduct – alternative claim under s 87 – whether collateral purpose of circumventing time limit – whether abuse of process – deceit – whether implied representation in collusive tendering – motion for leave to appeal against refusal to summarily dismiss action and/or strike out statement of claim dismissed
Trade Practices Act 1974 (Cth) s 45, s 82, s 87
Trade Practices Amendment Act (No 1) (2001 (Cth) Item 21
Federal Court of Australia Act 1976 (Cth) s 24(1A)Energex Limited v Alstom Australia Ltd [2004] FCA 575 cited
Australian Competition and Consumer Competition v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 cited
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-839 cited
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2 – Power Transformers) [2002] ATPR 41-871 cited
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2 – Distribution Transformers) [2002] ATPR 41-872 cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 cited
Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 cited
Hawkins v Clayton (1988) 164 CLR 539 cited
Little v Law Institute of Victoria (No 3) [1990] VR 257 cited
Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518 cited
Commonwealth v Verwayen (1990) 170 CLR 394 cited
Atlantic City Electric Co v General Electric Co 312 F2d 236 (2nd Circuit 1962) cited
Bailey v Glover 88 US 342 (1874) cited
Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 cited
Scarcella v Lettice (2000) 51 NSWLR 302 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Minogue v Ling [2000] FCA 125 cited
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 cited
I and L Securities Pty Ltd v HGW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 cited
Warner v Elders Rural Finance Ltd (1992) 41 FCR 399 cited
Australian Competition and Consumer…
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- Case
- [2005] FCAFC 215
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the claims were time-barred under section 82 of the Trade Practices Act, the interpretation of when a cause of action accrues, and whether the claims for damages under section 87 were an abuse of process given the statute of limitations. The primary judge addressed these issues by examining the general principles governing summary judgment and the striking out of pleadings. He concluded that the claims were not time-barred and should proceed to trial, as the limitation period should not deprive Energex of its right to compensation for a fraudulent conspiracy detected after the limitation period had expired.
The primary judge's reasoning was based on the principle that the limitation period should not start until the loss or damage becomes apparent. He noted that in cases involving latent defects, such as those in a building, the economic loss does not occur until the defect is discovered. Similarly, in cases of fraudulent conduct, the cause of action accrues when the fraudulent conduct is detected. The primary judge held that the claims were not time-barred and should be allowed to proceed to trial.
ORDERS:
On the motion of the first, second, third, fourth, and fifth respondents seeking leave to appeal from the judgment of Weinberg J made 7 May 2004, the motion was dismissed, and the respondents were ordered to pay Energex's costs of the motion. Similarly, on the motion of the sixth and seventh respondents seeking leave to appeal against the judgment of Weinberg J made 7 May 2004, the motion was dismissed, and the respondents were ordered to pay Energex's costs of the motion.
Orders
Orders of the court
A. On the Motion of the First, Second, Third, Fourth and Fifth Respondents filed 14 May 2004 seeking leave to appeal from the judgment of Weinberg J made 7 May 2004:
1. The motion be dismissed.
2. The First, Second, Third, Fourth and Fifth Respondents pay the Applicant’s costs of the motion.
B. On the Motion of the Sixth and Seventh Respondents filed 14 May 2004 seeking leave to appeal against the judgment of Weinberg J made 7 May 2004:
1. The motion be dismissed.
2. The Sixth and Seventh Respondents pay the Applicant’s costs of the motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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