Aristotite, Rosetta v Gladstone Park Shopping Centre Pty Ltd & Ors [1983] FCA 165

Aristotite, Rosetta v Gladstone Park Shopping Centre Pty Ltd & Ors [1983] FCA 165

The amendment to paragraph 16 adding injury and loss particulars did not introduce a new cause of action under s.82(1) of the Trade Practices Act 1974 and there was no identified prejudice to the respondents from the delay, so leave to amend was granted. Proposed paragraph 15A would cause prejudice and embarrassment because it failed to plead the asserted common law cause of action with sufficient precision, so leave to add it was refused without prejudice.

Jurisdiction
Australia
Judgment Date
25 July 1983
Procedural Posture
Motion for Leave to Amend the Applicant's Statement of Claim / Interlocutory Motion
Outcome
Leave to amend granted in part; motion otherwise dismissed without prejudice to a further application to add a common law claim; respondents' and cross third party respondents' costs of the motion ordered to be taxed and paid by the applicant.
Legal Topics
['leave to Amend Statement of Claim' 'misleading or Deceptive Conduct' 'false or Misleading Statements' 'limitation Period' 'cause of Action' 'personal Injury and Economic Loss Particulars' 'common Law Action for Unlawful Intentional and Positive Acts']
['trade Practices' 'civil Procedure' 'pleading'] ['leave to Amend Statement of Claim' 'misleading or Deceptive Conduct' 'false or Misleading Statements' 'limitation Period' 'cause of Action' 'personal Injury and Economic Loss Particulars' 'common Law Action for Unlawful Intentional and Positive Acts']

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Procedural Posture

Motion for Leave to Amend the Applicant's Statement of Claim / Interlocutory Motion

Legal Issues

  1. 1 ['Whether the proposed amendment to paragraph 16 alleging that the applicant was injured and adding particulars of injuries, economic loss and loss of earning capacity introduced a new cause of action.' 'Whether the rule in Weldon v. Neal required refusal of leave because a new cause of action might be barred by s.82(2) of the Trade Practices Act 1974.' 'Whether proposed paragraph 15A pleading a common law cause of action based on unlawful intentional and positive acts should be permitted.']

Ratio Decidendi

The amendment to paragraph 16 adding injury and loss particulars did not introduce a new cause of action under s.82(1) of the Trade Practices Act 1974 and there was no identified prejudice to the respondents from the delay, so leave to amend was granted. Proposed paragraph 15A would cause prejudice and embarrassment because it failed to plead the asserted common law cause of action with sufficient precision, so leave to add it was refused without prejudice.

Court Disposition

Leave to amend granted in part; motion otherwise dismissed without prejudice to a further application to add a common law claim; respondents' and cross third party respondents' costs of the motion ordered to be taxed and paid by the applicant.

Orders

  • ['Paragraph 16 of the statement of claim filed 13 December 1980 be amended by inserting after the word "applicant" the words "was injured and".' 'The particulars under paragraph 16 be amended by inserting particulars of injuries, economic loss and loss of earning capacity before the sub-heading "A. List of...