Bradshaw, W.W. v. Hair Transplant Pty Ltd & Ors [1986] FCA 558

Bradshaw, W.W. v. Hair Transplant Pty Ltd & Ors [1986] FCA 558

The existing statement of claim pleaded only facts supporting a claim for damages under s.82 of the Trade Practices Act 1974 for misleading or deceptive conduct under s.52, and did not plead the facts necessary to support claims for fraudulent misrepresentation, return of moneys for total failure of consideration or mistake of fact, or breach of contract. Those proposed claims were new causes of action and, except possibly as to some moneys paid within six years, would be statute-barred if commenced then. Applying the rule in Weldon v. Neal as a relevant limitation on the amendment discretion under Federal Court Rules O.13 r.2(1), leave to introduce those new causes of action should be...

Jurisdiction
Australia
Judgment Date
26 November 1986
Procedural Posture
Application Claiming Damages Under S.82 of the Trade Practices Act 1974 for Alleged Breaches of S.52, With Cross Claim for Damages for Repudiation of an Agreement / Interlocutory Motion by the Applicant to Amend the Statement of Claim and Join Samuel Carl Moschella as an Applicant
Outcome
Leave to amend the statement of claim was refused at this stage, with liberty in effect for the applicant to reformulate a new pleading consistently with the reasons; the motion to add Samuel Carl Moschella as an applicant was granted; the applicant was to pay costs occasioned by the joinder, amendments, and...
Legal Topics
['amendment of Statement of Claim' 'federal Court Rules O.13 R.2(1)' 'rule in Weldon V. Neal' 'new Causes of Action' 'statute Barred Claims' 'misleading or Deceptive Conduct' 'damages Under S.82 of the Trade Practices Act 1974' 'joinder of Applicant' 'costs of Adjournment']
['practice and Procedure' 'trade Practices' 'limitation of Actions' 'pleadings'] ['amendment of Statement of Claim' 'federal Court Rules O.13 R.2(1)' 'rule in Weldon V. Neal' 'new Causes of Action' 'statute Barred Claims' 'misleading or Deceptive Conduct' 'damages Under S.82 of the Trade Practices Act 1974' 'joinder of Applicant' 'costs of Adjournment']

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Procedural Posture

Application Claiming Damages Under S.82 of the Trade Practices Act 1974 for Alleged Breaches of S.52, With Cross Claim for Damages for Repudiation of an Agreement / Interlocutory Motion by the Applicant to Amend the Statement of Claim and Join Samuel Carl Moschella as an Applicant

Legal Issues

  1. 1 ["Whether the Court's amendment power under Federal Court Rules O.13 r.2(1) permits amendments introducing claims after a limitation period has expired." 'Whether the rule in Weldon v. Neal remains relevant to an application to amend under O.13 r.2(1).' 'Whether the proposed amended statement of claim would introduce new causes of action.' 'Whether those proposed new common law causes of action would be statute-barred.' 'Whether Samuel Carl Moschella should be added as an applicant.' 'Who should bear costs occasioned by the proposed amendments, joinder, and adjournment.']

Ratio Decidendi

The existing statement of claim pleaded only facts supporting a claim for damages under s.82 of the Trade Practices Act 1974 for misleading or deceptive conduct under s.52, and did not plead the facts necessary to support claims for fraudulent misrepresentation, return of moneys for total failure of consideration or mistake of fact, or breach of contract. Those proposed claims were new causes of action and, except possibly as to some moneys paid within six years, would be statute-barred if commenced then. Applying the rule in Weldon v. Neal as a relevant limitation on the amendment discretion under Federal Court Rules O.13 r.2(1), leave to introduce those new causes of action should be...

Court Disposition

Leave to amend the statement of claim was refused at this stage, with liberty in effect for the applicant to reformulate a new pleading consistently with the reasons; the motion to add Samuel Carl Moschella as an applicant was granted; the applicant was to pay costs occasioned by the joinder, amendments, and...

Orders

  • ['Leave to amend the statement of claim as proposed was refused at this stage.' 'The applicant may reformulate a new pleading in accordance with the reasons.' 'Samuel Carl Moschella was to be added as an applicant.' 'The respondent was to have any costs occasioned by the addition of Dr Moschella as an applicant and...