Johnston v Vintage Developments Pty Limited (ACN 067 567 006) [2006] FCAFC 171

Johnston v Vintage Developments Pty Limited (ACN 067 567 006) [2006] FCAFC 171

The amended application and further amended statement of claim bore the Court's filed stamp and seal on 2 December 2005 and therefore were filed before the agreed expiry of the limitation period on 4 December 2005. Although the joinder of Grant Johnston and the amendments were irregular because prior leave had not been obtained, they were not nullities. The Federal Court Rules, particularly O 6 r 4 and O 13, and s 51 of the Federal Court of Australia Act 1976 (Cth) permitted the Court to cure the irregularity by granting leave nunc pro tunc. Because leave would have been granted had it been sought on 2 December 2005, and because Grant Johnston suffered no relevant prejudice from...

Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Joinder, Amendment of Pleadings and Limitation Issues / Application for Leave to Appeal Heard as the Appeal Proper; Leave Granted, Orders Varied, Appeal Otherwise Dismissed
Outcome
Leave to appeal granted; orders of Bennett J varied to grant leave nunc pro tunc for filing and service of the amended application and further amended statement of claim; appeal otherwise dismissed with costs.
Legal Topics
['pleadings' 'joinder of Parties' 'amendment of Originating Process and Statement of Claim' 'irregularity Versus Nullity' 'leave Nunc Pro Tunc' 'limitation Period']
['practice and Procedure' 'civil Procedure' 'trade Practices' 'limitation of Actions'] ['pleadings' 'joinder of Parties' 'amendment of Originating Process and Statement of Claim' 'irregularity Versus Nullity' 'leave Nunc Pro Tunc' 'limitation Period']

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Joinder, Amendment of Pleadings and Limitation Issues / Application for Leave to Appeal Heard as the Appeal Proper; Leave Granted, Orders Varied, Appeal Otherwise Dismissed

Legal Issues

  1. 1 ['Whether an amended application and further amended statement of claim filed within the limitation period, but without prior leave to join an additional respondent, were nullities.' 'Whether the Court could cure the want of leave by granting leave nunc pro tunc after the limitation period had expired.' 'Whether regularising the filing would cause relevant prejudice to Grant Johnston.']

Ratio Decidendi

The amended application and further amended statement of claim bore the Court's filed stamp and seal on 2 December 2005 and therefore were filed before the agreed expiry of the limitation period on 4 December 2005. Although the joinder of Grant Johnston and the amendments were irregular because prior leave had not been obtained, they were not nullities. The Federal Court Rules, particularly O 6 r 4 and O 13, and s 51 of the Federal Court of Australia Act 1976 (Cth) permitted the Court to cure the irregularity by granting leave nunc pro tunc. Because leave would have been granted had it been sought on 2 December 2005, and because Grant Johnston suffered no relevant prejudice from...

Court Disposition

Leave to appeal granted; orders of Bennett J varied to grant leave nunc pro tunc for filing and service of the amended application and further amended statement of claim; appeal otherwise dismissed with costs.

Orders

  • ['Leave to appeal be granted and the appeal be treated as having been instituted and heard instanter.' 'The orders made by Bennett J on 11 May 2006 be varied by adding the following order: (2) Leave be granted nunc pro tunc to the applicants to file on 2 December 2005 and to serve the amended application and the...