SARRION Pty Ltd v Brambles Australia Ltd
[2004] WASC 12
SARRION PTY LTD -v- BRAMBLES AUSTRALIA LTD [2004] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 12 | |
| Case No: | CIV:1954/2001 | 3 DECEMBER 2003 | |
| Coram: | MASTER NEWNES | 10/02/04 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend dismissed | ||
| B | |||
| PDF Version |
| Parties: | SARRION PTY LTD (ACN 062 347 077) BRAMBLES AUSTRALIA LTD (ACN 000 169 938) |
Catchwords: | Practice and procedure Application to amend statement of claim Whether proposed amendments embarrassing or disclose arguable cause of action Turns on own facts |
Legislation: | Fair Trading Act 1987 (WA), s 11, s 79(2) Rules of the Supreme Court 1971, O 21 r 5 Trade Practices Act 1974 (WA), s 52, s 82(2) |
Case References: | ABB Service Pty Ltd v Hetherington & Anor [2001] WASCA 417 Carey Hazel v Getz Brothers & Co (Aust) Pty Ltd [2001] FCA 703 Drambo Pty Ltd v Westpac Banking Corporation Ltd (1992) 37 FCR 263 Fenech v Sterling (1983) 51 ALR 205 Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 PSL Industries Pty Ltd v Simplot Australia Pty Ltd [2003] VSCA 7 State of Western Australia v Wardley Australia Ltd & Ors (1991) 30 FCR 245 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Australia and New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286 BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) ATPR 40-771 Byass v Energy Power Systems Australia Pty Ltd [2003] WASC 160 Carey Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 341 Girando v Padbury (1919) 22 WALR 7 Grundy v Lewis (1995) 62 FCR 567 Hamersley Iron Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2000] WASC 66 Harris v Cigna Insurance Australia Ltd and Dicke (1995) ATPR 41-445 Harris v Western Australian Exim Corporation (1994) 56 FCR 1 Macpherson v Wingecarribee Shire Council & Ors, unreported; SCt of NSW (Greenwood M); 19 March 1997 McGee v Yeomans [1977] 2 NSWLR 273 Morgan v Banning (1999) 20 WAR 474 Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 Odin Central Service Pty Ltd (trading as Gregory's Plumbing & Pipeline Services) v Interstruct Pty Ltd (1992) ATPR 46-084 State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 116 ALR 363 Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 The Bell Group Ltd (In Liq) v Westpac Banking Corporation [2001] WASC 315 The Crown v McNeil (1922) 31 CLR 76 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BRAMBLES AUSTRALIA LTD (ACN 000 169 938)
Defendant
Catchwords:
Practice and procedure - Application to amend statement of claim - Whether proposed amendments embarrassing or disclose arguable cause of action - Turns on own facts
Legislation:
Fair Trading Act 1987 (WA), s 11, s 79(2)
Rules of the Supreme Court 1971, O 21 r 5
Trade Practices Act 1974 (WA), s 52, s 82(2)
Result:
Application to amend dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr D Wallace
Defendant : Mr D M Fairweather
Solicitors:
Plaintiff : Ginbey & Co
Defendant : Allens Arthur Robinson
Case(s) referred to in judgment(s):
ABB Service Pty Ltd v Hetherington & Anor [2001] WASCA 417
Carey Hazel v Getz Brothers & Co (Aust) Pty Ltd [2001] FCA 703
Drambo Pty Ltd v Westpac Banking Corporation Ltd (1992) 37 FCR 263
Fenech v Sterling (1983) 51 ALR 205
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853
PSL Industries Pty Ltd v Simplot Australia Pty Ltd [2003] VSCA 7
State of Western Australia v Wardley Australia Ltd & Ors (1991) 30 FCR 245
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Case(s) also cited:
Australia and New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286
BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) ATPR 40-771
Byass v Energy Power Systems Australia Pty Ltd [2003] WASC 160
Carey Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 341
Girando v Padbury (1919) 22 WALR 7
Grundy v Lewis (1995) 62 FCR 567
(Page 3)
Hamersley Iron Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2000] WASC 66
Harris v Cigna Insurance Australia Ltd and Dicke (1995) ATPR 41-445
Harris v Western Australian Exim Corporation (1994) 56 FCR 1
Macpherson v Wingecarribee Shire Council & Ors, unreported; SCt of NSW (Greenwood M); 19 March 1997
McGee v Yeomans [1977] 2 NSWLR 273
Morgan v Banning (1999) 20 WAR 474
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522
Odin Central Service Pty Ltd (trading as Gregory's Plumbing & Pipeline Services) v Interstruct Pty Ltd (1992) ATPR 46-084
State of New South Wales v McCloy Hutcherson Pty Ltd (1993) 116 ALR 363
Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [2001] WASC 315
The Crown v McNeil (1922) 31 CLR 76
(Page 4)
1 MASTER NEWNES: This is an application by the plaintiff for leave to amend the statement of claim to add claims under the Trade Practices Act 1974 (WA) and the Fair Trading Act 1987 (WA). The defendant opposes leave being granted on the grounds, first, that the proposed pleas are embarrassing and, secondly, that the proposed claims are out of time under s 82(2) of the Trade Practices Act 1974 and s 79(2) of the Fair Trading Act 1987 respectively.
2 In the action, the plaintiff claims damages against the defendant arising out of the defendant's alleged breach of a number of consultancy agreements entered into between the plaintiff and the defendant in 1993 and 1994.
3 It is alleged that the plaintiff was the trustee of a discretionary trust which carried on the business of indirect taxation consultant under the name Rima Consulting Services. The defendant carried on business as a heavy haulage and transport operator, heavy plant and machinery operator, and hirer and operator of cranes.
4 It is pleaded that, in about mid to late September 1993, the plaintiff, represented by one Richard Alan Hutchison ("Mr Hutchison"), had discussions with representatives of the defendant regarding the appointment of the plaintiff to carry out reviews of the defendant's diesel fuel rebate related operations and to assist in the preparation of rebate applications to be lodged with the Australian Customs Service. It is alleged that subsequently agreement was reached on the terms on which the plaintiff was to carry out those reviews. Relevantly for present purposes, one of those terms was that the defendant would "provide all complete and accurate records and instructions to [the plaintiff] when those records and instructions were sought by [the plaintiff]".
5 The plaintiff says that five specific consultancy agreements were subsequently entered into between the plaintiff and the defendant for the purposes of carrying out the reviews.
6 The first consultancy agreement was to review the defendant's Kwinana crane and heavy haulage branch operations. The initial work was done by the plaintiff between 9 February and 1 March 1994. Further work was done between 1 March 1994 and 19 February 1996. The plaintiff rendered an account for $31,839.49.
7 The second consultancy agreement was to review the defendant's Muchea branch operations. The agreement to do that work was made on
(Page 5)
- 14 October 1993. The work was undertaken between November 1993 and January 1995. The plaintiff rendered an account for $16,431.83.
8 The third consultancy agreement was in respect of the defendant's Darwin, Alice Springs, Broome, Geraldton and Port Hedland branches. The agreement to do that work appears to have been made in October 1993. It is not clear from the statement of claim when the work was carried out, but it seems to have been concluded by March 1995. The plaintiff rendered an account in the sum of $24,928.93.
9 The fourth consultancy agreement related to the defendant's Karratha crane operations. The agreement was made in November 1993 and work was carried out between about that date and October 1995. The plaintiff rendered an account for $120,255.03.
10 The fifth consultancy agreement was in respect of the defendant's Goldfields branch operations. It was made in December 1993 and work was carried out between about that date and August 1995. The plaintiff rendered an account in the sum of $73,885.68.
11 The defendant has not paid any of the plaintiff's accounts. The plaintiff pleads that it has terminated each of the consultancy agreements and in this action it claims damages against the defendant for the loss of the benefit of each of those agreements and the revenue it would otherwise have received from them. It now seeks to add claims under the Trade Practices Act 1974 and the Fair Trading Act 1987, alleging that, in respect of those agreements, the defendant engaged in misleading and deceptive conduct.
12 In the minute of amendments, the plaintiff alleges, in effect, that by its conduct the defendant represented that all of the records and instructions provided by the defendant to the plaintiff to carry out the work required under the consultancy agreements were complete, accurate and truthful. The plaintiff says that, in fact, the defendant supplied inaccurate and incomplete information, withheld certain relevant information and did not inform the plaintiff that certain sampling procedures suggested by the defendant were inaccurate and unreliable.
13 The plaintiff claims that, as a result of that conduct on the part of the defendant, Mr Hutchison was charged by the Commonwealth Director of Public Prosecutions with submitting a false return to the Australian Customs Service, contrary to the Crimes Act 1914 (WA). The return related to work carried out under the fourth consultancy agreement. The plaintiff says the fact that the information provided by the defendant to the
(Page 6)
- plaintiff in respect of the fourth consultancy agreement was not complete or accurate only emerged during the course of the criminal trial, leading to the prosecution's case "collapsing".
14 The plaintiff claims damages for legal fees it says it incurred in the defence of the criminal charge and for the loss of Mr Hutchison's professional time as a result of the prosecution. The plaintiff also claims that the inaccurate and incomplete information led to the plaintiff being "unfairly blamed" by the defendant for the inaccurate and incomplete returns it submitted and it claims damages, being the amount it was entitled to receive under the consultancy agreements.
15 I will deal first with the objections which the defendant took to the form of the proposed amended pleading. The first objections relate to pars 86 and 87 of the minute of amended statement of claim. Those paragraphs are as follows:
"86. The Plaintiff repeats paragraphs 4, 5, 6, 7, 8, 9, 10 to 14, 17, 18, 22 to 36, 40, 43 to 55, 57 to 67 and 70 of the Statement of Claim.
87. By reason of the conduct referred to in respect of each of the first four consultancy agreements the Defendant represented that all of the Defendant's records and instructions provided by the Defendant to the Plaintiff to carry out each consultancy agreement were complete, accurate and truthful. In particular the Plaintiff relied upon the following representations by the Defendant through its servants and agents.
PARTICULARS OF REPRESENTATIONS
- (a) As a result of the Defendant's missing records, the Defendant instructed the Plaintiff to utilise specific fuel consumption rates and work load patterns as the basis of its Kwinana rebate claim being the First Consultancy Agreement;
(b) As a result of the Defendant's missing records, the Defendant instructed the Plaintiff to use a 3 month sampling of cart notes and to extrapolate that sample to cover the period of the Defendant's operations the subject of the Third Consultancy
(Page 7)
- Agreement and the Fourth Consultancy Agreement;
- (c) As a result of the Defendant's missing records, the Defendant instructed the Plaintiff that the appropriate formula for calculating the use of diesel by cranes operated by the Defendant was 30% for lifting time and 70% for idling time for the First Consultancy Agreement and the Fourth Consultancy Agreement.
(d) In discussions with an employee of the Defendant, prior to and after access to the 3 months sample of cart notes was given to the Plaintiff, the Plaintiff was not advised of any crane operations, or crane work load peaks and troughs likely to affect any 3 month sampling procedure for the relevant review period.
(e) The Plaintiff accepted and adopted the Defendant's sampling and extrapolation methodology to establish the extent of operations eligible for diesel fuel rebate entitlements which the Defendant told the Plaintiff, had been an accepted practice by the Defendant for submitted diesel fuel rebate claims to the Australian Customs Service.
- Full particulars of the sampling and extrapolation methodology by the Defendant will be provided following discovery and interrogatories.
- (f) The Plaintiff was instructed by the Defendant's Karratha Operations Manager, Mr Lou Cliff on or about the 2nd December 1993 that extrapolation of a 3 month crane cart note sampling would be appropriate if the formula of 30% for lifting time and 70% for idling time was applied to the sampled cart note hours.
(Page 8)
- (g) Subsequently, the Defendant amended that formula to 30% lifting, 60% idling and 10% shutdown.
(h) This formula was confirmed by the Defendant's Kwinana Operations Manager to the Plaintiff on or about the 16th February 1994. Those instructions were confirmed by letter from the Plaintiff to the Defendant for the attention of Mr Donald Harold Ross dated the lst March 1994.
(i) As a result of the Defendant's missing records, the Defendant instructed the Plaintiff as to the relevant travel rates for all of its plant including cranes and trucks that were the subject of the diesel fuel rebate claims for the Consultancy Agreements.
- (i) By letter dated the 3rd December 1993, the Defendant provided the Plaintiff with its Muchea operations' trucks average fuel usage rates in litres per kilometre when running off road and the trucks average fuel usage rate in litres per hour whilst unloading at Muchea.
(ii) On or about the 10th December 1993, Mr Craig Briggs, an employee of the Defendant, provided the Plaintiff with the Defendant's Muchea trucks unloading fuel consumption rate with power take off engaged.
(iii) By facsimile letter dated the 15th December 1993, the Defendant provided the Plaintiff with its cranes and heavy haulage branch average fuel consumption rates.
(iv) On the 15th December 1993, the Defendant's Kwinana employee named Peter provided the Plaintiff with details of
(Page 9)
- the engine sizes for the various cranes at site.
- (v) On or about the 15th December 1993, Mr John Eades an employee of the Defendant provided the Plaintiff with engine types and capacities.
(vi) By letter dated the 16th December 1993, the Defendant provided to the Plaintiff particulars relating to travelling time for its Karratha cranes.
(vii) At the request of the Plaintiff the Defendant carried out fuel consumption tests for its cranes at the Kwinana premises. On the 9th June 1994 and 16th June 1994, the Defendant by facsimile transmissions to the Plaintiff confirmed the test results for crane fuel operations completed on the 30th May 1994.
(viii) At the request of the Plaintiff, the Defendant carried out crane fuel consumption tests to ascertain the amount of fuel consumed by cranes from travelling on roads. Following the tests the Defendant sent the fuel consumption work sheets by facsimile to the Plaintiff on or about the 27th February 1995."
16 The defendant submitted that par 87 is objectionable in a number of respects. The defendant objected first to the words "by reason of the conduct referred to in respect of each of the first four consultancy agreements". The defendant says that that is embarrassing because it does not identify the conduct relied upon. The plea is presumably intended to be a global reference to the 54 paragraphs of the statement of claim referred to in par 86, although that is not clear. It was submitted that, in any event, those paragraphs refer to extensive dealings between, and the conduct of both, the plaintiff and the defendant in respect of each of the consultancy agreements and the defendant should not be required to attempt to distil from those paragraphs what is the specific conduct relied
(Page 10)
- upon by the plaintiff to found the alleged representations. I accept those submissions.
17 The defendant also submitted that the particulars to par 87, which are said to be particulars of representations made by the defendant, are not particulars of representations at all and are therefore embarrassing. In subpars (a), (b), (c), (f), (h) and (i), the particulars refer to instructions which it is alleged the defendant gave to the plaintiff. In particular (d), it is alleged that the defendant failed to advise the plaintiff of certain matters and in particular (e) it is alleged the plaintiff accepted and adopted a sampling methodology which the defendant had told the plaintiff had been an accepted practice of the defendant when submitting diesel fuel rebate claims.
18 It was submitted that if, from those allegations, representations are to be extracted, it is not clear what the relevant representations are said to be. In addition, particulars (a), (b), (c) and (i), which plead specific instructions given to the plaintiff by the defendant "as a result of the defendant's missing records", appear to be at odds with the substantive plea that the defendant represented that "all of the defendant's records and instructions provided by the defendant to the plaintiff to carry out each consultancy agreement were complete, accurate and truthful". If some of the defendant's relevant records were, and were apparently known by the plaintiff to be, missing, it is not clear how the plaintiff could have been misled into believing that the records were complete. Particular (d) appears to rely upon a duty on the defendant to disclose the matters referred to, but it is not clear what the basis of that duty is said to be. In particular (e) there is a statement that the plaintiff accepted and adopted the defendant's sampling methodology. It is nowhere alleged, however, that the statement that the methodology had been an accepted practice by the defendant was misleading or deceptive. That is, it is not alleged that it was not the accepted practice of the defendant. The complaint appears to be, as appears from par 88 of the minute, that the methodology was inadequate or flawed.
19 I accept that those objections are also made out.
20 In my view, par 87 of the minute is embarrassing and I would refuse leave to amend in those terms.
21 Objection was also taken to par 88 of the minute. That is in the following terms:
(Page 11)
- "88. The representations by the Defendant were representations made in trade and commerce that were misleading and deceptive or were likely to mislead and deceive contrary to s 52(1) of the Trade Practices Act and s 10 of the Fair Trading Act.
PARTICULARS OF MISLEADING AND DECEPTIVE CONDUCT
a) The Documents:
(i) the Defendant failed to provide all fuel issues and fuel stock sheets for the relevant reviews:
(ii) the Defendant failed to provide all monthly fuel stock sheets for the relevant reviews;
(iii) the Defendant failed to provide details of the Defendant's fuel reconciliation system;
(iv) the Defendant failed to advise the Plaintiff of missing fuel records following the Plaintiff's request for all fuel records;
(v) the Defendant failed to provide the Plaintiff with fuel stock reconciliations for its operations under review by the Plaintiff.
b) Inaccurate Records:
(i) the Defendant provided inaccurate fuel purchase records for its operations;
(ii) the Defendant provided inaccurate tonnages carried by its road trains and numbers of road train trips:
(iii) the Defendant provided inaccurate tonnage particulars involving waste removal; and
(Page 12)
- (iv) the Defendant provided inaccurate details of the number of trips for those of its operations under review by the Plaintiff.
- c) The Defendant by its servants and agents failed to inform the Plaintiff that access to some of the Defendant's records was restricted so that the Plaintiff was not supplied with full and complete information by the Defendant:
d) The Defendant by its servants and agents failed to inform the Plaintiff that the Defendant's sampling procedures failed to take into account any on site crane workload peaks and troughs;
e) The Defendant by its servants and agents failed to inform the Plaintiff that instructions provided by the Defendant to the Plaintiff were incomplete, inaccurate or had failed to provide instructions at all."
22 The first objection was that the "representations by the Defendant" are not sufficiently identified. If, as is presumably the case, that is intended to refer to the "representations" particularised in par 87, then par 88 must fall with par 87. In addition, it was submitted, the particulars of the respects in which the conduct is alleged to be misleading and deceptive are too general in their terms and are not clearly related to representations allegedly made by the defendant. In my view, those objections are made out and accordingly par 88 is embarrassing and I would refuse leave to amend in those terms.
23 Paragraph 89 was objected to by the defendant on the ground that it did not adequately disclose a causal link between the conduct complained of and Mr Hutchison being charged with submitting a false return in respect of the fourth consultancy agreement. It was submitted that the claim does not make sufficiently clear the alleged connection between the information or records provided, or not provided, to the plaintiff and the fact that the Director of Public Prosecutions charged Mr Hutchison with submitting a false return in respect of the fourth consultancy agreement.
24 In addition, the loss and damage is alleged to have resulted from "the misleading and deceptive conduct". That is apparently a reference to the conduct alleged in pars 87 and 88 of the minute. The conduct alleged in those paragraphs is not, however, limited to the fourth consultancy
(Page 13)
- agreement, but relates to the first four consultancy agreements. It is not apparent how the alleged misleading and deceptive conduct in relation to consultancy agreements other than the fourth consultancy agreement had any bearing on Mr Hutchison being charged.
25 I consider that those objections are made out and that par 89 is embarrassing.
26 The defendant also submitted that it was not apparent from the pleading how the plaintiff suffered loss and damage as a result of Mr Hutchison being charged. The plaintiff was not charged. It was the trustee of the trust which carried on the consultancy business and it entered into the agreements in that capacity. Mr Hutchison was a director of the plaintiff and carried out the consulting work. But it is not apparent how the plaintiff came to incur a liability for legal fees in respect of Mr Hutchison's defence.
27 I accept that the plea as presently formulated is also inadequate in that respect and, if such a claim is to be maintained, the basis upon which the loss and damage is said to have been incurred by the plaintiff will need to be more clearly pleaded.
28 In my view, for the reasons I have given, the minute as it currently stands is embarrassing and I would refuse the application to amend the statement of claim in those terms.
29 The defendant also contended that, in any event, the claims under the Trade Practices Act and the Fair Trading Act are statute-barred and should not be allowed for that reason. Although, in light of the conclusion I have reached on the application, it is unnecessary to determine the limitation issue at this stage, as the matter was argued it is appropriate to say something about it.
30 It was not in issue that the relevant limitation period under s 82(2) of the Trade Practices Act and s 79(2) of the Fair Trading Act respectively was three years. The plaintiff completed the work under the fourth consultancy agreement in October 1995. That was the latest date upon which any work was carried out under any of the consultancy agreements. The plaintiff's accounts were apparently rendered by or at about that time. The writ was issued on 6 July 2001.
31 The plaintiff accepted that the proposed claims for damages for the loss of the moneys alleged to be payable under the consultancy agreements were outside the limitation period at the time the writ was
(Page 14)
- issued. It contended, however, that so far as the claim was based on damage suffered by reason of the prosecution of Mr Hutchison, the writ was within time. The causes of action under the Trade Practices Act and Fair Trading Act respectivelydid not accrue when the relevant conduct occurred but when loss or damage was suffered as a result of that conduct: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525. In this case, it was submitted, the damage occurred, at the earliest, in September 1999 when Mr Hutchison was charged, and arguably not until September 2000 when the defendant's alleged misleading and deceptive conduct emerged at the trial. The writ, indorsed with claims under the Trade Practices Act and the Fair Trading Act, was filed in July 2001.
32 The defendant raised at the hearing of this application a contention that, after the initial pleading under the Trade Practices Act and Fair Trading Act was struck out in August 2002, the plaintiff had abandoned those claims as no amended statement of claim asserting such claims was sought to be filed until May 2003. As this contention was first raised, without notice to the plaintiff, at the hearing I do not propose to have regard to it on this application. It was, as counsel for the defendant frankly conceded, simply something that had occurred to him during the course of the oral submissions of counsel for the plaintiff. I might say in passing, however, that it appears that a good deal of the time between August 2002 and May 2003 was taken up by a mediation process in which the parties had agreed to engage.
33 At this stage, on the basis of what is asserted in the current minute, it is not clear that any claim the plaintiff might have in respect of the prosecution is statute-barred.
34 The position with the claims for damages in respect of moneys payable under the consultancy agreements is rather different. It is conceded by the plaintiff that those claims under the Trade Practices Act and the Fair Trading Act were statute-barred at the time of the issue of the writ. The plaintiff submitted, however, that the amendments were permissible under O 21 r 5 of the Supreme Court Rules. In my view, that provision has no application. The relevant parts of O 21 r 5 are in the following terms:
"5. …
(1) Subject to —
…
(Page 15)
- (c) the following provisions of this Rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct.
- (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
…
(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
35 Order 21 r 5 only applies where the limitation period had not expired at the time the writ was issued, but has expired by the time it is sought to make the amendments to add the claim: ABB Service Pty Ltd v Hetherington & Anor [2001] WASCA 417 per McLure J at [13]. It is conceded by the defendant that the limitation period had expired at the time the writ was issued.
36 The plaintiff further submitted that as the limitation periods under s 82(2) of the Trade Practices Act and s 79(2) of the Fair Trading Act respectively did not extinguish the causes of action, but simply afforded the defendant a defence to the claims, it was not an abuse of process for the plaintiff to plead the claims. It was for the defendant to raise the limitation period by way of defence. The plaintiff submitted that if such a defence were pleaded, the plaintiff intended to plead by way of reply, first, that by virtue of the doctrine of fraudulent concealment, the limitation period did not begin to run until September 2000 when the
(Page 16)
- alleged misleading and deceptive conduct of the defendant was revealed, and, secondly, that the defendant was estopped from relying upon the limitation period. The plaintiff should not be shut out from pleading those matters.
37 I accept that it is not, of itself, an abuse of process to plead a statute barred claim where the cause of action is not extinguished: Carey Hazel v Getz Brothers & Co (Aust) Pty Ltd [2001] FCA 703 per French J at [38]. I also accept that the limitation periods concerned do not extinguish the cause of action: State of Western Australia v Wardley Australia Ltd & Ors (1991) 30 FCR 245 at 270; PSL Industries Pty Ltd v Simplot Australia Pty Ltd [2003] VSCA 7 at [18].
38 Counsel for the defendant submitted, however, that the contentions which the plaintiff proposed to advance were themselves manifestly untenable. He argued that the doctrine of fraudulent concealment (if it could be made out on the facts, which was denied) has no application to limitation periods under the Trade Practices Act or the Fair Trading Act. Counsel for the plaintiff conceded that its application was "extremely problematic", but went on to submit that even if the doctrine did not apply as such, fraudulent concealment of the existence of a claim for misleading and deceptive conduct may nevertheless lead to the plaintiff being estopped, or otherwise precluded in equity, from asserting that time has continued to run.
39 There is substantial authority that the principle of fraudulent concealment does not itself apply to limitation periods under the Trade Practices Act: Fenech v Sterling (1983) 51 ALR 205; Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853; State of Western Australia v Wardley Australia Ltd & Ors (supra) at 270.
40 Counsel for the plaintiff relied, however, on the following passage from the judgment of the Full Court of the Federal Court in State of Western Australia v Wardley Australia Ltd & Ors (supra), for his alternative submission that conduct in the nature of fraudulent concealment may nevertheless give rise to equitable grounds upon which the defendant cannot be heard to deny that the limitation period has been waived:
"In our view, as we have indicated, s 82 of the Act provides for the three year period as a condition of the remedy, and that condition is something which may be waived by the respondent.
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- Accordingly, whether by equitable estoppel or other sufficient equitable grounds, it may be that the respondent cannot be heard to deny that the condition has been waived. Hence, the notion of unconscientious reliance upon a legal right, referred to by Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 619–20; and in Hawkins v Clayton (CLR at 590), and by Deane and Dawson JJ in Stern v McArthur (1988) 165 CLR 489 at 526–7; may have a role to play. So also may the various strands of the reasoning in the judgments in Commonwealth v Verwayen, (supra). But, in our view, the result contended for by the State cannot be reached simply by incorporation of the very specific doctrine as to concealed fraud. The question is one that would fall for consideration only in terms of pleaded facts. There are, of course, no such materials before us."
41 The defendant argued that that dictum had no application in this case because here all that the plaintiff contended was a failure on the part of the defendant to inform the plaintiff of the relevant facts. The defendant's counsel referred to Drambo Pty Ltd v Westpac Banking Corporation Ltd (1992) 37 FCR 263 at 265, where Drummond J, having referred to the above passage, said:
"But the allegations made in the reply of concealment of facts constituted by a mere failure on the part of the respondent to inform the applicant of those facts is not, in my view, enough to set up an equity capable of preventing the respondent relying on the limitation point. In order to set up an answer to the limitation argument within the principle discussed in Wardley (supra), the applicant would have to allege at the very least, a failure by the respondent to inform which failure occurred in circumstances identified in the pleading that would make it unconscionable for the respondent to rely on the limitation point. No such circumstances are pleaded in the reply."
42 It is, however, not clear to me at this stage what the plaintiff will allege constitute the relevant facts alleged to give rise to the equitable grounds on which it proposes to rely. The pleadings have not yet reached that point.
43 It is for that reason, in my view, that it is inappropriate to deal with these issues at this stage. The appropriate time to determine whether a contention that the defendant is precluded from relying on a limitation defence is arguable, is when it has been pleaded and the specific facts
(Page 18)
- relied upon have been identified. Where, as here, the plaintiff asserts that the defendant is estopped, or otherwise precluded in equity, from relying on a limitation defence, the proper course, in my view, is to wait until the defence and reply have been pleaded. If, at that stage, the defendant contends that the plaintiff's pleas in that respect are plainly untenable, then it can bring an application then to dismiss them. The plaintiff should not, however, be denied at this stage the opportunity to plead its case on that issue, especially having regard to the caution which courts must exercise in interlocutory applications of this nature.
44 For the reasons I have given, I would dismiss the application to amend the statement of claim in terms of the minute. I will hear the parties on the form of order and costs.
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