State of New South Wales v McCloy Hutcherson Pty Ltd

In the matter of the State of New South Wales against McCloy Hutcherson Pty Ltd, the Federal Court was tasked with addressing an interlocutory application from the applicant to either stay, dismiss the proceedings, or strike out certain parts of the statement of claim. The applicant sought to hold the respondent liable for an arrangement among tenderers, where the successful tenderer would pay fees to unsuccessful tenderers. The dispute centred around whether the applicant had released the tenderers as joint tortfeasors and whether the relevant rule concerning the release of joint tortfeasors was abolished by the Law Reform (Miscellaneous Provisions) Act. Furthermore, the applicant questioned whether the release constituted a release or a covenant not to sue, whether the causes of action were statute-barred, if the principle of fraudulent concealment applies to limitation periods under the Trade Practices Act, and whether a conspiracy merges in the substantive tort, leaving no separate claim.

The court examined the legal issues presented, including the interpretation of the relevant statutory provisions and case law concerning the release of joint tortfeasors. The court found that the applicant had not released the tenderers as joint tortfeasors, and that the rule concerning the release of joint tortfeasors had not been abolished by the Law Reform (Miscellaneous Provisions) Act. The court also held that the release in question was a release and not a covenant not to sue. Moreover, the court determined that the causes of action were not statute-barred, and that the principle of fraudulent concealment does not apply to limitation periods under the Trade Practices Act. Finally, the court held that a conspiracy does not merge in the substantive tort, and that a claim for money had and received must be based on recognised principles of law.

The court dismissed the notice of motion, granted the applicant leave to amend the statement of claim concerning its claims for damages, money had and received, and breach of Part IV of the Trade Practices Act. The parties were granted liberty to apply on seven days' notice. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.