Bate, Ernest William v International Computers (Australia) Pty Ltd [1984] FCA 224

Bate, Ernest William v International Computers (Australia) Pty Ltd [1984] FCA 224

Because the defendant's cross-claim raised the relevant contracts for the first time and, pursuant to the Limitation of Actions Act 1958 (Vic) s 30, the counterclaim is deemed to have commenced at the same date as the principal action, the plaintiff should be given leave to amend the statement of claim to counter-claim on the same contracts, even though the limitation period would otherwise have expired.

Parties
Plaintiff: Ernest William Bate; Defendant: International Computers (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
03 August 1984
Procedural Posture
Application to Amend Statement of Claim in Civil Proceeding / Interlocutory; Application for Leave to Amend Statement of Claim
Outcome
Leave to amend statement of claim granted
Legal Topics
Amendment of Pleadings, Limitation Periods, Misrepresentation, Counterclaim, Federal Jurisdiction, Trade Practices Act
Civil Procedure Trade Practices Amendment of Pleadings Limitation Periods Misrepresentation Counterclaim Federal Jurisdiction Trade Practices Act

Case Brief

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Parties

Ernest William Bate

Plaintiff

International Computers (Australia) Pty Ltd

Defendant

Procedural Posture

Application to Amend Statement of Claim in Civil Proceeding / Interlocutory; Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 Whether proposed amendments to statement of claim raise a fresh cause of action now statute barred under relevant limitation statutes
  2. 2 Whether amendments amount to the introduction of new claims regarding different contracts and representations
  3. 3 Whether the accrual of the defendant's cross-claim gives rise to any right in the plaintiff to make corresponding amendments outside the limitation period

Ratio Decidendi

Because the defendant's cross-claim raised the relevant contracts for the first time and, pursuant to the Limitation of Actions Act 1958 (Vic) s 30, the counterclaim is deemed to have commenced at the same date as the principal action, the plaintiff should be given leave to amend the statement of claim to counter-claim on the same contracts, even though the limitation period would otherwise have expired.

Court Disposition

Leave to amend statement of claim granted

Orders

  • The plaintiff has leave to amend the statement of claim in the form produced to the Court on 5 April 1984.
  • The costs of the application are costs in the cause.