International Computers (Australia) Pty Ltd v Bate, E.W

Re: INTERNATIONAL COMPUTERS (AUSTRALIA) PTY LIMITED
And: ERNEST WILLIAM BATE
No. VG.237 of 1984
Practice and procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Davies J.
Beaumont J.

CATCHWORDS

Practice and procedure - application to amend statement of claim - statement of claim alleging contraventions of, inter alia, s.52 Trade Practices Act, 1974 ("the Act") - proposed amendments relating to, inter alia, relief sought under ss.82(1) and 87(1A) of the Act - whether new relief sought statute-barred - operation of ss.82(2) and 87(1A).

Trade Practice Act, 1974 ss 82, 87.

French v. Sterling, Full Federal Court, unreported, 29 October 1984 - con.

HEARING

MELBOURNE
#DATE 22:2:1985

ORDER

1. That the appeal be allowed.

2. That the orders 1 and 2 made by a single judge of the Court on 3 August 1984 be set aside.

3. That the matter be remitted to the Court constituted by a single judge to be dealt with in accordance with these reasons and in the light of the further amendments now sought to be made to the statement of claim.

4. That there be no order for the costs of the motion before the single judge or of this appeal.

JUDGE1

I would dismiss the appeal for the reasons given by Beaumont J.

JUDGE2

I have had the opportunity of reading the reasons prepared by Mr Justice Beaumont. I agree with them and with the orders proposed.

JUDGE3

This is an appeal from an order of a single judge of the Court granting leave to the respondent (the plaintiff below), to amend his statement of claim (which alleged contraventions of, inter alia, s.52 of the Trade Practices Act, 1974 ("the Act") and claimed damages and other consequential relief), by making additional allegations and by claiming additional relief under the Act against the appellant (the defendant below). Since the opposition to the amendments is grounded on the lateness and scope of the application to amend, it will be necessary to refer to the history of the matter in some detail.

1. By his statement of claim delivered with the writ of summons issued on 21 September 1978, the plaintiff alleged that he was a pathologist; that the defendant carried on the business of supplying computer goods and services to the public; that between 14 May 1974 and 16 September 1977, the plaintiff and the defendant entered into a series of written agreements "for the supply and/or hire and/or service and/or licence of and/or relating to certain computer equipment" (therein referred to as "the computer Agreements", particulars whereof were specified); that in the negotiations for the computer agreements, the defendant engaged in conduct that was misleading or deceptive or likely to be so; that, in the negotiations, the defendant represented to the plaintiff that parts of the computer equipment and of the services had performance, characteristics, uses or benefits which they did not have (particulars whereof were given); that the statements and the presentations so particularised, especially statements made in the defendant's "Management Summary"…