Simplot Australia Pty Ltd v PSL Industries

In the matter of Simplot Australia Pty Ltd v PSL Industries, the dispute before the court involved claims under the Trade Practices Act 1974 (Cth), the Fair Trading Act 1985, in contract and at common law. The plaintiff, Simplot Australia, sought leave to amend its statement of claim to include allegations based on pre-contractual conduct of the defendants, PSL Industries. The court was required to decide whether the plaintiff's original statement of claim sufficiently raised the claim in question, whether the court should consider if the claim would be statute-barred, and whether leave to amend could be granted under the Trade Practices Act and the Fair Trading Act. The court also had to consider whether the plaintiff had an acquired or accrued right under the Fair Trading Act at the time of its repeal.

The court's reasoning was that the plaintiff's proposed amendment, which sought to rely on pre-contractual conduct, was clearly statute-barred because all its elements were established when the plaintiff entered into the agreements or at least when it paid the AUD392M. The court found that the plaintiff paid the purchase price at a time when various pre-contractual representations were already demonstrably false and that the alleged falsity of other representations were soon established. The court held that all the elements of the statutory causes of action were in place at the time when the payment was made, or at the latest within the short period within which the falsity of the representations was disclosed. The court concluded that the claim sought to be raised in reliance upon the pre-contractual conduct was outside the periods specified in the Trade Practices Act and the Fair Trading Act. The court also found that once all the elements of the right of action were present, time began to run and that once the plaintiff suffered loss and damage which was not negligible, it was enough.

The court held that because the right of action sought to be alleged by amendment would be statute-barred, it became relevant to consider Rule 36.01(6) of Chapter 1 of the Rules. The court referred to its previous decision in Hatfield and adhered to its decision. The court also noted that the defendants did not provide evidence of prejudice that would address matters other than the prejudice of being denied the opportunity to plead a limitation defence if amendment was permitted. The court found that prejudice of the latter kind was not a sufficient basis for refusing amendment.

The final orders were that the application for leave to amend was dismissed, and the defendants were to recover their costs of the application.