Lee v Travers

[2009] NSWSC 398

CITATION:	Lee v Travers & Ors [2009] NSWSC 398
HEARING DATE(S):	13 May 2009
JUDGMENT DATE :	29 May 2009
JURISDICTION:	Equity
JUDGMENT OF:	Bryson AJ at 1
DECISION:	Dismiss the appeal with costs.
CATCHWORDS:	PRACTICE and PROCEDURE - Summary Disposal UCPR 13.4 - Appeal from dismissal by Associate Judge of proceedings after Amended Statement of Claim filed purportedly under leave granted on earlier Summary Disposal Application - detailed review of alleged errors in exercise of discretion under UCPR 13.4. HELD - no error, appeal dismissed.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Trade Practices Act 1965 (Cth)
CATEGORY:	Consequential orders
CASES CITED:	Dey v Victorian Railways Commission (1949) 78 CR 62 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Hillebrand v Council of the City of Penrith (2000) NSWSC 1058 House v R [1936] HCA 40 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Tresize v National Australia Bank Limited [2005] FCA 1095 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
PARTIES:	Leonard John Lee (Plaintiff) John Christopher Travers (First Defendant) Gerald Joseph Travers (Second Defendant)
FILE NUMBER(S):	SC 5008/07
COUNSEL:	Ivan Griscti (Plaintiff) Marcus Pesman (Defendants)
SOLICITORS:	Herbert Greer (Plaintiff) Henry Davis York (Defendants)
LOWER COURT JURISDICTION:	Supreme Court (Associate Judge)
LOWER COURT FILE NUMBER(S):	5008/07
LOWER COURT JUDICIAL OFFICER :	Macready AsJ
LOWER COURT DATE OF DECISION:	11.12.2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

FRIDAY 29 MAY 2009

5008/07 LEE v TRAVERS & ORS

JUDGMENT

1 HIS HONOUR: By Notice of Motion of 12 February 2009 the plaintiff appeals to a judge of the Equity Division from the order of Macready AsJ of 11 December 2008 which dismissed the proceedings with costs. The order was made in the second of two applications by the defendants for summary disposal under UCPR 13.4 and the Court’s inherent jurisdiction. I extended the time for Notice of Motion on appeal as delay was caused by misunderstanding. Extension was not contentious.

2 The plaintiff who was not then represented commenced the proceedings by filing his Statement of Claim on 16 October 2007. There were then three defendants, and they applied by Notice of Motion of 21 November 2007 for dismissal of the proceedings. Macready AsJ heard that Notice of Motion on 19 March 2008 and disposed of it on 30 April 2008 for reasons then stated. His Honour made these orders:

1. I strike out the Statement of Claim and dismiss the proceedings against the third defendant.
2. I give leave to the plaintiff to file and serve against the 1st and 2nd defendants a further Statement of Claim in accordance with the principles expressed in this judgment within 28 days of today’s date.

3 There were further orders relating to costs and procedure.

4 The reference to the principles expressed in the judgment can be understood from expressions in it particularly paragraphs 11 and 34. After reviewing the references in the Statement of Claim to an alleged contract and breach Macready AsJ disposed of the contract claim, which had other difficulties, by ruling:

11. The cause of action was complete in 1994 and accordingly the claim is statute barred. There are other problems concerning the correct defendant and in my view this claim is not maintainable because of the limitations point.

5 Nothing in the reasons suggests that the Trial Judge was prepared to allow repleading of the contract claim. This is understandable as it was statute barred. There was no contention and no room for a contention that there was concealment of the breach of contract.

6 After considering extensive passages in the Statement of Claim referred to as the fraud claim the Trial Judge said:

34. Perhaps the best that can be said is that if it were not for the presentation of the forged document the plaintiff might have had the opportunity to earn fees for writing the series. In these circumstances I will not strike out the fraud claim but allow it to be repleaded on the basis that the loss claimed is limited to fees lost from writing. There is no basis for a claim for an account of profits for the series on this claim.

7 The leave to file an Amended Statement of Claim did not extend to any contract claim and extended to a fraud claim only with the limitations in paragraph 34. In allowing re-pleading the Trial Judge exhibited, to a high degree, the restraint with which powers of summary dismissal are exercised. An ASC was filed, well out of the time allowed and without an extension of time, on 11 August 2008. It appears to have been prepared by a lawyer and was filed by the solicitor who by that time acted for the plaintiff. The two defendants who were joined in the ASC applied by Notice of Motion of 28 August 2008 again for dismissal pursuant to UCPR 13.4 and for related orders. This Notice of Motion was heard by Macready AsJ on 10 October 2008, and reasons for disposition were published on 21 November 2008. The Trial Judge did not proceed to make an order but gave leave to reopen argument to allow submissions to be made on one defined point. The parties made written submissions and the Trial Judge published reasons dealing with these on 11 December 2008, and for reasons stated then and earlier made the order of dismissal under appeal.

8 The plaintiff is an author and his work has included writing for television. The defendants John Travers and Gerald Travers were the principals of a television production company called Unlimited Energee Pty Ltd and on behalf of their company commissioned the plaintiff to write the synopsis for 13 episodes of a television series called “Croc Tears”, later known as “Crocadoo”. After discussion with the defendants, the plaintiff received from them a form of agreement headed “Croc Tears – Writers Agreement” - Exhibit A. Much of this form appears to be a standard form for arrangements between Unlimited Energee as producer and a writer for television. According to its terms the plaintiff was commissioned to write the synopsis of 13 episodes of “Croc Tears” as specified in Schedule A, and to attend story consultations as required. Schedule A on two pages contained a brief for the writer. After some material about the mood and contents of the work Schedule A said:

It is noted that if we are successfull in selling the production then you will be engaged as writer of the series.
Remuneration
Total payment of $3000 for all complete work. There will be two payments of $1500, based on the following.
(a) in advance based on the return of this document signed.
(b) at the approved completion of the following tasks.

9 Then the tasks were described, in three stages with completion dates, providing character development, providing a one-page synopsis for 13 episodes and 7 two sentence storylines, and providing a complete script for one 22 minute episode.

10 For a good commercial outcome it would be necessary for the producer to sell the production to a television station and this would require further work, including work of the writer, in writing and producing 13 episodes. The Agreement in Exhibit A would not cover this further work. Schedule A did not contain any material establishing the terms on which the plaintiff would be engaged as writer of the series if the Company was successful in selling the production.

11 The plaintiff wrote the following on Schedule A in his own handwriting after the words “It is noted that if we are successful in selling the production then you will be engaged as writer of the series.”

We recognize that the fees paid for this development work are not to be used as a basis for future negotiations should the series proceed.

12 The plaintiff signed the document on the last page, where provision was made for signatures, his signature was witnessed by one Cumming, and he sent it back to the defendants. Unlimited Energee Pty Ltd did not sign this document or adopt the handwritten addition, in anything communicated to the plaintiff.

13 There is a second version of the Writers Agreement in evidence – Ex B. This is on the same standard form as Exhibit A and I will mention the differences which are significant. Mr Lee’s name and address are written in as the Writer; a different writing to Exhibit A but meaning the same things. In the standard form there is a reference to “the Company” as a party which would pick up references in the extended terms to a company through which a writer works. The plaintiff did not have such a company, and on Exhibit A the reference to the Company as a party was crossed out and not filled in. In Exhibit B the space for the name of the Company is filled in “John C. Travers of Unlimited Energee Pty Ltd” revealing lack of understanding, as the document could not work with Unlimited Energee Pty Ltd in the position of the company.

14 On the last or signature page the document is dated 31 March 1993, and is signed on behalf of Unlimited Energee Pty Ltd and also by Mr Lee himself; but without attestation by the witness Cumming. Instead of the handwritten passage Schedule A in Ex B says this in typewriting:

It is noted that if we are successful in selling the production then you will be given first option to undertake the work and provide a quote accordingly.
It is further noted, writing fees for work completed for the series will be negotiated independent to this Agreement.

15 These words are different both in the first sentence and in the second sentence to the handwriting in the earlier Schedule A. In my opinion the alteration does not make any significant difference in the effect of the document because in the first form the terms on which the plaintiff was to be engaged as a writer, as to remuneration or otherwise were not established; the handwritten addition emphasises this. In the second form he was to have first option to undertake the work and provide a quote. Writing fees were to be negotiated. The plaintiff’s rights would be much the same in both versions.

16 An observation by the Trial Judge shows his view, which in my opinion is correct, that in the absence of agreement about remuneration an agreement to engage the plaintiff as a writer of the whole series would be void for uncertainty. A first option to undertake the work and provide a quote is not really any better: there must be a further agreement before there is any real entitlement.

17 So far as I can understand the facts, within the limited range of consideration available on application for summary disposal, no contract in accordance with Exhibit A came into existence because Unlimited Energee Pty Ltd did not accept the contract with the handwritten alteration (which should be seen as a counter offer) by signing the contract with the alteration. The plaintiff did the work described in Schedule A and was paid $3000. Unlimited Energee and the defendants did not involve the plaintiff any further in the production.

18 According to the plaintiff's case he did not sign a contract containing Schedule A in the form in Ex B with the typewritten material. It is not disputed that the signature on the last page is the plaintiff's signature, but he contends that he did not ever see the document in the form of Ex B until 2001. The plaintiff had the document examined as a questioned document by an expert, whose evidence, supporting his own evidence, tends to show that the document he signed was not Ex B in the form it now has.

19 ASC alleges (para 7 and following) to the effect that after the plaintiff returned an earlier form of Writer’s Agreement with his handwritten alterations, initialled on each page and signed by him, the defendants drafted a second agreement and sent it to him for execution. The plaintiff alleges (para 4) that he executed the document, with his handwritten addition, and did so relying on and induced by a number of representations. He sent the document to the defendants, in the expectation that they would send him the fully executed agreement executed "on their own behalf and on behalf of the Company". The ASC contains many anomalies, and the reference to an expectation that the defendants, who were not named as parties to the agreement, would execute "on their own behalf" is a relatively minor one of them.

20 In ASC there are references which I find obscure to breach of contract by the defendants. This is difficult to follow because there is no distinct allegation that the plaintiff entered into a contract with the defendants. The parties mentioned in Ex A were Unlimited Energee and the plaintiff. There is no allegation of formation of a contract to which the defendants were parties, or of breach of contract by the defendants. The allegations of loss at ASC paragraph 38 refer to the defendants’ breach of contract; it is not possible to understand what that is.

21 Although ASC does so in a very defective way, it should be understood that it was intended to allege formation and breach of a contract between the plaintiff and the defedants, and a claim against them of damages for breach. If the proceedings were not dismissed, ASC should be dealt with in some appropriate way, such as striking out the passages alleging contract and breach (and it would be difficult to identify them exactly) because their inclusion was not authorised by the leave granted on 30 April 2008; and was not in accordance with the principles in the judgment of that date.

22 The Statement of Claim included a claim for damages for the tort of deceit, referred to as the fraud claim. As paragraph 34 of the judgment shows, the plaintiff was allowed to replead the fraud claim on the basis that the loss claimed was limited to fees lost from writing. Leave related only to repleading the fraud claim which had been made in the Statement of Claim, where it was not expressed in a satisfactory way. It was plainly not the effect of the order that the plaintiff had leave to plead a different fraud claim to the one which had been pleaded in the Statement of Claim. This restriction is important, because of the operation of ss 14 and 55 of the Limitation Act 1969. In the period from 1993 to 1995 Unlimited Energee sold the production to a television network, the remaining writing work was carried out without involving or informing the plaintiff, the television series was produced and broadcast, and any loss and damage to the plaintiff occasioned by any fraudulent misrepresentations made to him in the negotiating stage occurred in the course of these events. It was not necessary to establish when precisely this happened, but it happened when or before he learnt that Unlimited Energee had sold the production, which he learned in 1994. In the ordinary operation of the Limitation Act s 14 a time bar against proceedings came into effect at some time in the year 2000, at the latest.

23 The plaintiff's case is however that the running of time was postponed under s 55 (1) of the Limitation Act 1969. Section 55 (1) is:

(1) Subject to subsection (3) where:

(a) there is a cause of action based on fraud or deceit, or
(b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

24 ASC embarked on showing how the plaintiff would overcome s 14 by relying on s 55. Reliance on s 55 did not emerge in the course of pleadings from a Defence and a Reply; the defendants have never filed a Defence. Concealment is dealt with in paras 23 to 37 of ASC, which allege reasons why, as it is said, the plaintiff is permitted to bring these proceedings by reason of s 55.

25 Paragraphs 23, 24 and 25 are:

23. On or around July 2001 the Plaintiff again requested a copy of the “Writers Agreement”, that had been presented to the Nine Television Network from the new owners of Unlimited Energee, and was duly provided with the original copy of the Writer’s Agreement which was dated 31st March 1993.
24. On around September 2001 the Plaintiff requested that the original of the contract be examined by an expert forensic document and handwriting examiner for the purpose of forensically analysing the document which was agreed to by the new owners of Unlimited Energee Pty Ltd.
25. On or around 18 October 2001 a report was provided by the examiner which concluded that there was very strong evidence to suggest two key pages had been substituted in the contract.

26 It is then alleged (paras 26 and following) that the defendants ceased to act as directors of Unlimited Energee in 2001, that the plaintiff made further requests and was provided with access to a copy of the agreement and the alternative version (now Ex B) and was informed that the alternative version had been forwarded by the defendants to the television company. The plaintiff engaged an expert in forensic handwriting analysis and the expert provided a report on 19 October 2001 to the effect that forensic evidence suggests that two pages had been substituted in the alternative agreement. In terms of subs 55(1), it is the plaintiff’s case that in this way the plaintiff first discovered the cause of action in deceit.

27 Paragraph 30 alleges:

The expert’s report was the first notification received by the plaintiff:
(a) Of evidence that the defendants had constructed the Alternative Agreement by substituting pages into the Agreement;
(b) Of evidence that the defendants had not provided to the Nine Network a true copy of the Agreement;
(c) Of evidence that the defendants had misrepresented to the Nine Network their contractual obligations to the plaintiff pursuant to the Agreement;

28 It is then alleged that the defendants did not make relevant disclosures to the plaintiff, that the receipt of the expert's report was the first time the plaintiff had a copy of the agreement since March 1993, and:

33 As a consequence of the action of the defendant and the concealment of the matters set out in paragraph 23 hearing the plaintiff was unable to bring legal proceedings during the period of 1994 to October 2001.

It is then alleged that the plaintiff had exercised all due diligence.

29 The allegations relating to the tort of deceit or fraud are found at a number of different places in ASC. In paragraphs 3 and 4 it is alleged that the defendants made a number of oral representations to the plaintiff in December 1992 and January 1993 while negotiating with a view to engaging the plaintiff as a writer. Nine representations are alleged; most of them are about subjects which I dealt with when discussing the forms of agreement, although not in exactly the same terms, and two of them are representations that the defendants themselves personally guaranteed performance of Unlimited Energee's obligations and would be personally liable to the plaintiff, referred to as oral representations. Paragraph 8 of ASC sets out things which the plaintiff was required to do by the form of agreement and paragraph 9 alleges

"By their provision of the Agreement to the plaintiff, the defendants represented to the plaintiff (“the Contractual Representations”) that pursuant to the agreement the Company would, (and they would procure the Company to)":

and eight matters are set out, the first four being provisions of the agreement and the second four said to be terms necessarily implied in the agreement.

30 The contractual representations then are representations which it is alleged that the defendants made expressly or impliedly by providing the form of agreement to the plaintiff. They are representations about what the Company would do and what the defendants would procure the Company to do.

31 There is also alleged to be a collateral agreement entered into by the defendants with the plaintiff. It is alleged in paragraph 12:

Relying upon and induced by the Oral Representations and the Contractual Representations … the plaintiff executed the Agreement on 2 March 1993.

32 Under the heading "The Deceit" ASC alleges in paragraph 19 that the representations included representations that were false. The particulars in para 19 are:

Particulars
(a) The defendants sold the Work and/or the production to the Nine Network but the plaintiff was not engaged as writer for the series.
(b) The defendants sold the Work and/or the production to the Nine Network without prior notification to the plaintiff.
(c) The defendants did not inform the Nine Network that it was a condition of the Agreement under Schedule A that the Company and/or the defendants engage the plaintiff as sole writer if successful in selling the production.
(d) The defendants did not provide the Nine Network with a true copy of the Agreement as executed by the plaintiff but in fact provided to it an altered copy.
(e) The defendants failed to notify the Nine Network that the plaintiff was to be the sole writer of the series;
(f) The defendants failed to ensure that the sale to the Nine Network was on terms that allowed the defendants and/or the Company to comply with its obligations pursuant to the Agreement.

33 ASC goes on:

20. The representations were made to the plaintiff by the defendants with the knowledge that they were false.
21. In the alternative, the defendants were reckless or careless as to the falsity of the representation.
22. In reliance on the false representations the plaintiff:
(a) Executed the Agreement;
(b) Provided to the defendants the Crocadoo material;
(c) Agreed to accept $3,000 for Crocadoo, substantially less than its true value, in anticipation of payment of greater amounts upon commercialization of the Work;
(d) Assigned the copyright for the Work for $3,000, substantially less than its true value, in anticipation of payment for greater amounts upon commercialization of the Work;
(e) Engaged in further discussions during late March 1993 with the defendants in relation to refining the concept of the series;
(f) Declined from negotiating with other parties to commercialise the Work.

34 Particular 19(a) echoes one of the alleged oral representations namely (e) as follows:

4(e) the plaintiff would be engaged by the defendants as sole writer of the series if the defendants were successful in selling the production as a series.

35 Particular 19(a) also echoes particular 9(c) of the contractual representations as follows:

(c) engage the plaintiff as a sole writer if it was successful in selling the production.

36 Particular 19(b) echoes particular 4(d) of the oral representations and Particular 9(e) of the contractual representations. Particular 19(c) echoes particular 9(f) of the contractual representations. Particular 19(d) echoes particular 9(g) of the contractual representations. Particular 19(e) is generally but not exactly similar to particular 9(f) of the contractual representations. Particular 19(f) echoes particular 9(h) of the contractual representations. All of the representations referred to in para 4 are alleged to have been made orally to the plaintiff by Mr Gerald Travers:

4. During the negotiations described in paragraph 3 hereof the defendants made oral representations (“the Oral representations”) to the plaintiff that:
(a) The plaintiff would be commissioned to write a 13 episode synopsis for a children’s television show about crocodiles;
(b) The plaintiff would necessarily assign his interest in world copyright to the defendants in return for fees;
(c) The defendants would use its best endeavours to sell the series to a commercial television network for the mutual financial benefit of the plaintiff and defendants;

(d) The defendants would keep the plaintiff informed of their attempts to sell the series and would notify the plaintiff if such a sale was achieved;

(e) The plaintiff would be engaged by the defendants as a sole writer for the series if the defendants were successful in selling the production as a series.
(f) The plaintiff would earn fees which would not be used as the basis for future negotiations if the work was developed into a series; and
(g) The plaintiff would receive substantial remuneration in respect of writing fees for the series in the event that a sale was achieved;
(h) The defendants themselves personally guaranteed performance of the Company’s obligations as represented and in respect of the written contract to be executed by the parties;
(i) The defendants would be personally liable to the plaintiff in respect of the matters represented to the plaintiff and in respect of the written contract to be executed by the parties.
Particulars
The representations were made by the second defendant on behalf of himself and the first defendant during oral negotiations that occurred between December 1992 and early March 1993.

37 Particulars 9(a), (b), (c) and (d) are alleged to have been made by providing the agreement, in which these are express terms, to the plaintiff. Contractual representations 9(e) and (f) are alleged to be necessarily implied terms of the agreement. Particulars do not show how contractual representations 9(g) and (h) were made.

38 For each representation alleged in paragraph 19 it is a fact essential to the plaintiff's cause of action that it should be shown either that the representation was false at that time it was made, or that at the time it was made the defendants were reckless or careless as to whether or not it was false. As all related to future conduct of the defendants or of the Company, the concept of recklessness or carelessness in making them is difficult to apply; understood as representations about the defendants’ actual intentions to the time they were made, they were either true or they were false.

39 As a proposition of fact, the proposition that by proffering a form of agreement for their company to enter into the defendants represented their own intentions to fulfil provisions in the agreement, both express provisions and implied provisions, has obvious difficulties; but it could not be said in the clear way required for summary disposal, that those difficulties could not be overcome; and the Trial Judge did not act on that basis.

40 The burden of the allegation that there was concealment is that the defendants did not give the plaintiff a copy of the agreement they had given to the television network, and did not give the plaintiff any other information, in response to many requests he made from 1994 until about 2000. For these to be held to be a fraudulent concealment of a cause of action within s 55(1)(b) several things must first be found. It must be found that not disclosing the document which was given to the television network was a concealment in that disclosing would have showed the existence of the cause of action alleged, that is, would have shown that there had been a fraud when the representations alleged were made in that there was then no intention to act in accordance with the representations. Or it may be necessary to show that the disclosure of the document would have showed that there had been carelessness or indifference to truth when those representations were made. It is conceivable that giving the television network what was (as the plaintiff alleges) a falsified version of the contractual arrangement between Unlimited Energee and the plaintiff is evidence from which, taken with other facts and circumstances, it could be inferred that there had been fraud; it could be regarded as relevant to the question whether there had been a fraud, but on no reasonably available view could it be regarded as revealing, or removing from concealment, the fact there had been such a fraud. The two facts are little connected and it cannot be said that one is removed from concealment by the other.

41 It would also be necessary to show, if it is to be concluded that there was a concealment, that there was some duty to respond to the plaintiff’s request and produce the document or give information about it; or that there were some facts and circumstances which showed that not responding was a concealment. To say nothing could not be a concealment if nothing false or incomplete was said and there was no duty to say anything. In neither form of agreement is there any promise or obligation of Unlimited Energee to reveal its dealings with the buyer or to produce documents shown to the buyer.

42 It would also have to be found that, if there was a concealment, it was fraudulent; not for example the product of inattention, or of a view that there was no duty or no occasion to produce a document, or of a view that it was none of the plaintiff's business what the defendants had done in their dealings with the television network. The fraudulence of the concealment is a necessary element for relying on s 55 (1)(b).

43 It will be seen that there are two distinct branches in s 55. The branch traced through clause 55(1)(a) relates to a cause of action based on fraud or deceit, and concealment or fraudulent concealment is not an element of it. In this branch time begins to run when the person having the cause of action first discovers the fraud or deceit, or may with reasonable diligence first discover the fraud or deceit. In the second branch, which applies to any cause of action, including a cause of action based on fraud or deceit, where the cause of action is fraudulently concealed, the running of the time bar is postponed until the person having the cause of action first discovers or might with reasonable diligence discover the concealment.

44 The decision and order of 30 April 2008 were not appealed against. ASC did not conform to limits imposed by the order granting leave to amend, and to the extent that it did not, it did not call for detailed consideration in the second application for summary disposal. If it was filed without leave to amend, or outside the terms of leave to amend, it was no error to act as if it were not there and dismiss the proceedings.

45 The decision under appeal is a decision in exercise of the discretion in UCPR 13.4. It was undoubtedly within the power so conferred, and is open to be set aside, and to further exercise of the discretion on appeal, only within the limits for review of a discretionary decision established in House v the King [1936] HCA 40, (1936) 55 CLR 499; and restated in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at 45 by Heydon JA; with further references to the authoritative sources of these principles, and to applications relating to practice and procedure; this is such an application. See too Gronow v Gronow (1979) 144 CLR 513 at 519-520 (Stephen J) and 537-538 (Aickin J).

46 I turn to address the matters in the Trial Judge’s judgment which were contended to be in error.

47 In his reasons of 21 November 2008 the Trial Judge instructed himself on the nature of the power of summary dismissal and the need for exceptional caution when exercising that power, and referred to Dey v Victorian Railways Commission (1949) 78 CR 62 at 91 (Dixon J) and General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-130 (Barwick CJ). He also referred to authorities dealing especially with summary dismissal on a limitation point; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533 and Hillebrand v Council of the City of Penrith (2000) NSWSC 1058 at 27 (Austin J). His Honour said:

9 Plainly it is only in cases where there are no disputed questions of fact and when the claims are clearly out of time that a Court should act.

It was not contended that the principles were not correctly set out.

48 What was under consideration in Wardley was a claim for damages relating to investments undertaken and damages alleged to be caused by misleading or deceptive conduct under the Trade Practices Act 1965 (Cth). Cases that kind are, I would think, characterised by needs for careful demonstration and careful examination before determining the point of time at which damage occurred, and hence the time of accrual of a cause of action. Identifying the accrual date in that case was indeed complex as is illustrated by discussion in the leading judgment at pp 525-533.

49 There is no corresponding difficulty here, because if the view put forward by the plaintiff is right, he incurred a significant loss in or by 1994 when the production was sold to the television network and someone else was engaged as the writer. Exactly identifying the accrual date is not a problem in this case; whenever it exactly was, it was plainly well before October 2001, six years before commencement of the proceedings, and ASC acknowledged this by embarking on allegations directed to showing that the accrual date was postponed.

50 The Trial Judge was of the view that the claim for breach of contract expressed in ASC should not proceed. There were several bases for this view. The first (para 11) was that pleading a claim for breach of contract was outside the limits of leave to replead earlier granted. The Trial Judge said: “This is a reason to strike out the claim” and in so saying was plainly correct. He went on to express several further adverse conclusions based on the terms of the new claim as pleaded. The principal ground of the earlier decision to limit leave to replead was that the contract claim was statute-barred as it was completed in 1994. A further ground was that the absence of an agreement on the basic manner of remuneration if the plaintiff were engaged as a writer for the series led to that part of the agreement being void for uncertainty. (Para 15)

51 The allegations in ASC (para 16) continued to make it plain that the limitation period ran from September 1994 as the plaintiff knew in September 1994 that the series had been sold without his involvement as a writer; indicating that there had been a breach of the contract which he alleges. The Trial Judge also referred to paras 17 and 18 in ASC and a claim that the plaintiff and the defendants entered into an agreement collateral to the plaintiff entering into the principal agreement with Unlimited Energee. The Trial Judge was of the view that the claim on the collateral agreement alleged was also statute barred.

52 In my opinion no error has been shown and the Trial Judge’s treatment of the contract claims in ASC, and the view that the contract claims should not proceed were well based in the want of compliance with the leave to replead, and there were also other sound grounds, and his Honour’s views on this matter had no inappropriate effect on the exercise of the discretion.

53 At judgment para 20 the Trial Judge said that the requirement for a claim in deceit are well established, and referred to Tresize v National Australia Bank Limited [2005] FCA 1095 at 38, where Sundberg J gave a summary of those elements, with reference to the principal authorities. It was not suggested that the Trial Judge instructed himself erroneously.

54 The Trial Judge’s analysis of the allegations of falsity in ASC para 9 (at judgment 22) was that only one actual or express representation was referred to by the particulars in para 19, namely particulars 19(a) and 19(c) which picked up earlier allegations that it was expressly represented that the plaintiff would be the writer of the series. The Trial Judge observed that the remaining particulars of para 19 related only to what were alleged to be implied terms of the written agreement. The Trial Judge was of the view that an implied term in a contract could not be a representation of fact. In his Honour’s view the only falsity alleged was falsity as to the actual express representation that the plaintiff would be the writer of the series. His Honour went on:

23. This is quite a different claim from the claim that was originally pleaded. The original claim was that the fraud was the act of substituting pages in the agreement, it contained no pleading of any representation. This means that the claim is a new cause of action and no leave pursuant to s 65 has been sought to have the amendment take effect at a date other than the date on which proceedings were commenced. It is plain that the cause of action, being the new cause of action, arises out of the same or substantially the same facts giving rise to the existing cause of action in the earlier statement of claim.

55 Whether or not it was correct that the only significant representation which could be relied on was that relating to the plaintiff being the writer of the series, judgment paragraph 23 is applicable to the claim in ASC. However wide or narrow the claim in ASC relating to false representations is, the observations in paragraph 23 apply and the claim is a new cause of action and outside the leave to replead earlier granted.

56 The reference to s 65 of the Civil Procedure Act 2005 raises a further important matter. Leave pursuant to s 65 to raise any new cause of action which would otherwise be statute-barred is a quite different and much more difficult subject to leave to replead a cause of action which has already been raised in a pleading filed before expiry of the relevant limitation period. Paragraph 23 states, in my opinion correctly, two substantial reasons why it was not appropriate for the Court to allow the claim relating to fraudulent representations to proceed, if appropriate by summary disposal.

57 The Trial Judge went on to refer to some further matters which supported the same conclusion. Of his decision of 30 April 2008 the Trial Judge said: (at 25) “… in the earlier proceedings I was not prepared to strike out the claim on the basis it was statute barred because there was an unresolved question of fact as to when the plaintiff could have discovered the fraud (see paragraph [21] of the earlier judgment). “The Trial Judge then referred to the terms of s 55 of the Limitation Act, and said at 27 “the deceit claim turns on the alleged actual representation that the plaintiff would be the writer of the series”. The Trial Judge then set out para 18 of ASC and para 18 of the Statement of Claim which make statements about the many times, it is said 130 times between 1995 and 2001 when episodes were broadcast and rebroadcast.

58 After referring to some agreed facts the Trial Judge said that the evidence fell short of showing that the plaintiff was aware of the falsity of the representation when he learnt that he was not to be the writer of the series in or around September 1994 but said:

32 Given that the series were produced in 1995 and all discussions had ceased in May 1993, with reasonable diligence the plaintiff could have discovered the deceit in 1995 and consequently s 55 would not be of assistance to the plaintiff. The cause of action would then be statute barred. However, at the hearing no evidence was called or submissions made in regard to these additional admissions. Therefore as a matter of procedural fairness, it is appropriate to reopen the matter to allow submissions to be made on this point.

59 The parties made written submissions in response to this invitation and on 11 December 2008 the Trial Judge published further reasons which dealt with the written submissions. In these reasons his Honour said (at 70):

2 At paragraphs 27 and onwards I referred to the plaintiff’s knowledge on this aspect. In paragraph 29 I referred to an additional admission which appeared in an earlier pleading which had not been referred to in the argument before me. Because it had not been referred to I gave the parties an opportunity to make further submissions on the question of whether the plaintiff was aware of the alleged deceit by September 1994.
3 I have now received those submissions in which the plaintiff concedes that by 1995 he knew he was not the writer of the series. That being so and having regard to that admission it would appear that the deceit claim is also statute barred.

60 It will be seen that his Honour regarded the concession establishing that by 1995 the plaintiff knew that he was not the writer of the series as establishing, with other circumstances, that with reasonable diligence the plaintiff could have discovered the deceit in 1995.

61 It will be seen that this was an additional ground on which the Trial Judge acted, the ground first expressed being that the allegation of the tort of deceit by reference to the representations alleged raised a new cause of action which was outside the leave to replead earlier granted and for which there was no leave under s 65 of the Civil Procedure Act. This was a sufficient basis for his Honour’s decision, whether or not it was also established that the plaintiff was aware by 1995 of sufficient facts to enable him with due diligence to discover the allegedly fraudulent misrepresentations and his cause of action.

62 In the reasons of 11 December 2008 the Trial Judge stated some further matters relating to written submissions which went beyond the subjects on which he had invited submissions. The Trial Judge was not prepared to depart, as he had been invited to do, from his view that the cause of action in deceit alleged in ASC was not the same cause of action as that in respect of which he had allowed a repleading.

63 The concluding passage of the written submissions by the plaintiff’s counsel was para 18:

18 If, contrary to these submissions, it is found that the plaintiff does require leave pursuant to section 65 of the Limitation Act , the plaintiff applies for such leave on the basis that the cause of action arises from the same facts as originally pleaded.

64 The Trial Judge dealt with this by saying :

7 The question for the need for any leave under section 65 was raised in the earlier hearing before me and the occasion it was not proceeded with by the plaintiff.
8 In the circumstances I do not propose to consider the application.

65 In support of the appeal it was contended that in dealing with the deceit claim and deciding that the claim in deceit was statute-barred because the plaintiff knew of the relevant deceit by 1995 at the latest, the Trial Judge did not take into account all the pleaded elements of the deceit that the plaintiff sought to rely on and the alleged concealment pleaded.

66 I first observe that the conclusion that the plaintiff could by reasonable diligence have discovered the misrepresentations alleged in or about 1995 was an alternative basis for this part of the disposition. It was submitted, with some development, that the Trial Judge had not taken into account all the pleaded elements of deceit and concealment, and counsel referred particularly to the refusal of requests for a copy of the agreement and documentation provided to the Nine Network. It was contended that it was not sufficient to establish deceit that the plaintiff simply demonstrated false representation; he must also establish intent, and he did not until October 2001 have the means to know that the defendants had the requisite intent because he did not know of any evidence of intent until he received the forensic report.

67 I do not think this line of reasoning is correct. Receipt of the forensic report and of information to the effect that material had been substituted in the form of agreement shown to the television network did not inform the plaintiff that at the time the representation was made, well before the defendant dealt with the television network, the defendants did not in fact intend that the plaintiff should be the writer to the series and made a false representation about it. The connection between what is in Exhibit B and what the defendants intended in their representation to the plaintiff is extremely indirect; it might set off enquiry, but it is not even a scintilla or spark of evidence about what the defendants intended at the time the representation was made. The effect of the Trial Judge’s view is that if there was an inference available from the defendants’ behaviour in dealing with the television network without involving the plaintiff as writer, those circumstances were already known by 1995 and any available inference could be drawn by the plaintiff and any further enquiry prompted. The reference to reasonable diligence cannot be a reference to enquiries of the defendants, who could not be expected to respond to or join in enquiries into whether they had acted fraudulently.

68 The plaintiff’s counsel submitted, with references to the Statement of Claim, that the Trial Judge was incorrect in the view that the original claim “was that the fraud was the act of substituting pages in the agreement, it contained no pleading of any representation.” The references to passages in the original Statement of Claim however do nothing to show that the fraud alleged was any representation, whether those first alleged in ASC or others, or to show that the fraud alleged was not the act of substituting pages in the agreement. The reference was to cl 4 of the Statement of Claim and to what is there said to be a contractual representation that the plaintiff would be engaged as the writer of the series. Clause 4 is as follows:

On the morning of 2nd of March 1993 the Second Defendant sent the Plaintiff a facsimile of a contract (which included the term “it is noted that if we are successful in selling the production then you will be engaged as writer (singular) for the series”.

69 In paragraphs 16 and 17 of the Statement of Claim there are probably allusions to paragraph 4 in allegations that the defendants took various steps in 1994 and 1997 “without fulfilling their obligations to the plaintiff”. There is no indication anywhere in the Statement of Claim that it is alleged that the conduct set out in paragraph 4 was fraudulent.

70 In my opinion the Trial Judge’s view that in this respect the Amended Statement of Claim went far beyond the leave allowed was correct.

71 It was then contended, in a submission apparently directed to myself, that “39. If however it is found that the Amended Statement of Claim included a different cause of action, it is submitted that the appropriate course is that leave be granted in accordance with s 65 of the Civil Procedure Act so that the date the amendment takes effect is the date of the original pleading: 15 October 2007.” In my opinion it is not within the appellate power to do this. Unless the judgment of the Trial Judge is set aside for error it is not open to me to embark on consideration of how the defendants’ motion should be dealt with, or of any related questions. In any event the application for leave under s 65 should not be made on a side-wind in a submission on appeal. It would be a substantial application of considerable importance.

72 It was contended to the effect that the Trial Judge should have allowed leave; the contention was: (41) “Assuming his Honour erred in finding that the deceit claim was statute barred, it was not appropriate to the action to be dismissed on account of a failure to obtain leave under s 65.”

73 It is plain that s 65 had been adverted to. In the reasons of 21 November 2008 the Trial Judge observed at paragraph 23 “… No leave pursuant to section 65 has been sought to have the amendment take effect at a date other than the date on which proceedings were commenced.” In the observations of 11 December 2005 His Honour said what I earlier set out.

74 These observations make clear that consideration of s 65 occurred during the hearing of the Notice of Motion, that the plaintiff did not proceed then with an application under s 65, and so far as appears did not make any application, either by Notice of Motion or orally in the course of proceedings. Section 65 was then raised in written submissions after there had been adverse rulings and an offer to make written submissions on a different subject had been extended. It is not surprising then that the Trial Judge was not prepared to reopen the subject. Leave to reopen arguments was within the discretion of the Trial Judge, but as the subject had been at least ventilated and the opportunity to pursue it and make the application had not been taken it is in no way surprising that the Trial Judge did not allow the subject to be reopened. It should be kept in view that the new cause of action proposed had been introduced into the pleading in excess of the leave granted on 30 April 2008. If there was a proper occasion to apply under s 65 it was during the hearing of the application decided on 30 April 2008. Any later consideration of s 65 was inappropriately belated.

75 It was then contended that his Honour was in error in his treatment of the contract claim. I first observe that his Honour’s refusal to allow the contract claim to stand had its primary basis in the inclusion of that claim in ASC not being warranted by the leave granted on 30 April 2008, against which there was no appeal. It was further contended that the Trial Judge took an erroneous view of the operation of the Limitation Act in relation to the contract claim. It was contended that the Trial Judge failed to take into account all the alleged breaches which ASC alleges were concealed from the plaintiff by the defendants. The example given was “… that a contractual representation between the parties was in the event of sale of the production to a third party that party would be provided with a true copy of the agreement … the defendants concealed from the plaintiff what material they provided to the Nine Network.”

76 No form of the contractual document contains a provision to that effect. In paragraph 9 of ASC it is alleged that by providing the Agreement (that is the form of agreement) to the plaintiff, the defendants made contractual representations to the plaintiff that pursuant to the agreement the Company would (and they would procure the Company to) among other things

(g) in the event of sale of the production to a third party, provide that third party with a true copy of the Agreement.

77 Particulars show that some of the contractual representations, not including this one, were in writing and were express terms of the agreement, that others are implied; but these particulars do not refer to the contractual representation I have set out and say that it is either express or implied.

78 On the material before the Trial Judge this matter plainly had no substance. When the plaintiff knew that the production was going ahead it was plain to him that contractual provisions relating to his involvement had not been observed, and that if there had been a breach of contract in these respects, he was in a position to claim damages. In my opinion this part of the plaintiff’s submission has no substance.

79 In my opinion I should dismiss the appeal.

80 Order: Dismiss the appeal with costs.

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