De Brett Seafood Pty Ltd v Qantas Airways Limited (No 2) [2011] FCA 894

De Brett Seafood Pty Ltd v Qantas Airways Limited (No 2) [2011] FCA 894

The applicants' solicitors at all relevant times intended to sue the Lufthansa entity that carried air freight into and out of Australia, but mistakenly believed that DLAG was that entity. That mistake was within O 13 r 2 as a mistake as to the name and identity of the respondent, and despite potential prejudice to limitation period rights it was just to grant leave, particularly having regard to DLAG's conduct after commencement.

Jurisdiction
Australia
Judgment Date
08 August 2011
Procedural Posture
Class Action Alleging Contraventions of the Trade Practices Act 1974 (cth) Arising From an Alleged Global Airfreight Cartel / Interlocutory Application for Substitution of Lufthansa Cargo Aktiengesellschaft for Deutsche Lufthansa Aktiengesellschaft as Second Respondent
Outcome
Application granted.
Legal Topics
['substitution of Party' 'mistake in Name or Identity of Party' 'amendment After Limitation Period' 'airfreight Cartel Allegations' 'trade Practices Act S 45']
['practice and Procedure' 'competition Law'] ['substitution of Party' 'mistake in Name or Identity of Party' 'amendment After Limitation Period' 'airfreight Cartel Allegations' 'trade Practices Act S 45']

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Procedural Posture

Class Action Alleging Contraventions of the Trade Practices Act 1974 (cth) Arising From an Alleged Global Airfreight Cartel / Interlocutory Application for Substitution of Lufthansa Cargo Aktiengesellschaft for Deutsche Lufthansa Aktiengesellschaft as Second Respondent

Legal Issues

  1. 1 ['Whether the applicants made a mistake in the name or identity of the Lufthansa entity intended to be sued within O 13 r 2 of the Federal Court Rules.' 'Whether substitution of Lufthansa Cargo Aktiengesellschaft for Deutsche Lufthansa Aktiengesellschaft should be allowed notwithstanding any prejudice to limitation period rights.']

Ratio Decidendi

The applicants' solicitors at all relevant times intended to sue the Lufthansa entity that carried air freight into and out of Australia, but mistakenly believed that DLAG was that entity. That mistake was within O 13 r 2 as a mistake as to the name and identity of the respondent, and despite potential prejudice to limitation period rights it was just to grant leave, particularly having regard to DLAG's conduct after commencement.

Court Disposition

Application granted.

Orders

  • ['Lufthansa Cargo Aktiengesellschaft be substituted for Deutsche Lufthansa Aktiengesellschaft (ARBN 495 323) as the second respondent in the proceeding.' 'The costs of the application be reserved.']