McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211

McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211

Leave to appeal was warranted only in respect of the order that the amendments take effect from commencement of the proceeding because that order was made without appreciation of its potential prejudice to S&P's limitation argument about discoverability before 13 October 2011. The appeal was allowed to that limited extent and the date on which the amendments take effect was left for trial. Leave to appeal was otherwise refused because S&P did not demonstrate substantial injustice, particularly given s 24(1E), its own discovery conduct, the relevance of the documents to existing claims and defences, and the fact that its defence had already put its knowledge, honesty and intent in issue....

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Application for Leave to Appeal From Interlocutory Orders Permitting Amendments to an Originating Application and Statement of Claim to Include a Cause of Action for Deceit / Full Court Determination of Leave to Appeal and Limited Appeal
Outcome
Leave to appeal granted only on the question of the date from which the amendments were to take effect; appeal allowed to that limited extent; order 3 set aside and replaced; application for leave to appeal otherwise dismissed; applicants ordered to pay 90% of respondents' costs subject to liberty to seek a varied...
Legal Topics
['leave to Appeal Interlocutory Orders' 'amendment of Pleadings' 'tort of Deceit' 'statute Barred Claims' 'date Amendments Take Effect' 'substantial Injustice' 'overarching Purpose']
['practice and Procedure' 'commercial and Corporations' 'limitation of Actions'] ['leave to Appeal Interlocutory Orders' 'amendment of Pleadings' 'tort of Deceit' 'statute Barred Claims' 'date Amendments Take Effect' 'substantial Injustice' 'overarching Purpose']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Orders Permitting Amendments to an Originating Application and Statement of Claim to Include a Cause of Action for Deceit / Full Court Determination of Leave to Appeal and Limited Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted in respect of the primary judge's order that amendments adding a deceit claim take effect from the commencement of the proceeding." 'Whether the primary judge erred in permitting amendments to add a deceit claim where limitation issues were raised.' 'Whether r 8.21 of the Federal Court Rules 2011 (Cth) is the exclusive source of power to permit amendments asserted to involve a statute-barred claim.' 'Whether the applicants would suffer substantial injustice if leave to appeal were refused, having regard to s 24(1E) of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

Leave to appeal was warranted only in respect of the order that the amendments take effect from commencement of the proceeding because that order was made without appreciation of its potential prejudice to S&P's limitation argument about discoverability before 13 October 2011. The appeal was allowed to that limited extent and the date on which the amendments take effect was left for trial. Leave to appeal was otherwise refused because S&P did not demonstrate substantial injustice, particularly given s 24(1E), its own discovery conduct, the relevance of the documents to existing claims and defences, and the fact that its defence had already put its knowledge, honesty and intent in issue....

Court Disposition

Leave to appeal granted only on the question of the date from which the amendments were to take effect; appeal allowed to that limited extent; order 3 set aside and replaced; application for leave to appeal otherwise dismissed; applicants ordered to pay 90% of respondents' costs subject to liberty to seek a varied...

Orders

  • ['Leave to appeal be granted only in respect of the question of the date from which the amendments to the second further amended originating application and second further amended statement of claim were to take effect as referred to in order 3 of the orders made on 13 October 2017 and challenged in ground 1(g) in...