Hopkins, Ann v Seymour Softwoods Ltd & Ors [1998] FCA 760

Hopkins, Ann v Seymour Softwoods Ltd & Ors [1998] FCA 760

The fourth respondent's application to withdraw an admission was dismissed because it was in substance an attempt to re-litigate an interlocutory motion already heard and disposed of, and the amendment could conceivably prejudice the applicant. The respondents' application to plead limitation defences was dismissed because the defence under subs 82(2) had not been pleaded before trial and was properly regarded as waived, and the Court could not find an absence of prejudice to the applicant if the defence were raised late, particularly given issues as to when damage was sustained, the applicant's health, and financial constraints.

Jurisdiction
Australia
Judgment Date
25 February 1998
Procedural Posture
Notices of Motion to Amend Defences / At Hearing, at the Conclusion of the Applicant's Case
Outcome
Both notices of motion were dismissed.
Legal Topics
['amendment of Defences' 'withdrawal of Admission' 'statutory Limitation Periods' 'waiver of Limitation Defence' 'prejudice From Late Amendment']
['practice and Procedure' 'trade Practices'] ['amendment of Defences' 'withdrawal of Admission' 'statutory Limitation Periods' 'waiver of Limitation Defence' 'prejudice From Late Amendment']

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Procedural Posture

Notices of Motion to Amend Defences / At Hearing, at the Conclusion of the Applicant's Case

Legal Issues

  1. 1 ['Whether the fourth respondent should be permitted to amend its defence by withdrawing an admission.' 'Whether the application to withdraw the admission was in substance an attempt to re-litigate a matter previously disposed of in an interlocutory proceeding.' 'Whether all respondents should be permitted to amend their defences to rely on relevant limitation periods under the Trade Practices Act 1974 (Cth).' 'Whether the right to assert non-compliance with subs 82(2) of the Trade Practices Act 1974 (Cth) had been waived by failing to plead it.' 'Whether the applicant would suffer prejudice if the proposed amendments were allowed.']

Ratio Decidendi

The fourth respondent's application to withdraw an admission was dismissed because it was in substance an attempt to re-litigate an interlocutory motion already heard and disposed of, and the amendment could conceivably prejudice the applicant. The respondents' application to plead limitation defences was dismissed because the defence under subs 82(2) had not been pleaded before trial and was properly regarded as waived, and the Court could not find an absence of prejudice to the applicant if the defence were raised late, particularly given issues as to when damage was sustained, the applicant's health, and financial constraints.

Court Disposition

Both notices of motion were dismissed.

Orders

  • ["The application to amend the fourth respondent's defence by withdrawal of an admission is dismissed." "The application to amend the first, second, third and fourth respondents' defences so as to rely on relevant limitations periods is dismissed."]