Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (ACN 005 932 654) [2001] FCA 703

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (ACN 005 932 654) [2001] FCA 703

The motion was dismissed because ss 74J and 75AO of the Trade Practices Act 1974 (Cth) operate, at most, as non-extinguishing bars to the remedy and do not destroy the causes of action. A claim that may be out of time is not, without more, frivolous or vexatious or an abuse of process, and any limitation defence would require factual and legal determinations about the applicant's actual or constructive awareness of the alleged defects or want of fitness for purpose, making the matter unsuitable for summary dismissal.

Jurisdiction
Australia
Judgment Date
12 June 2001
Procedural Posture
Trade Practices Act Product Liability and Consumer Protection Proceeding With Claims Against the First Respondent and Negligence Claims Against the Second and Third Respondents / First Respondent's Motion to Dismiss the Claims Under O 20 R 2(1)(b) and (c) of the Federal Court Rules
Outcome
The First Respondent's amended motion to dismiss was dismissed with costs.
Legal Topics
['summary Dismissal' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'limitation Period' 'bar to Remedy' 'extinguishment of Cause of Action' 'prosthetic Heart Valve' 'defective Goods' 'fitness for Purpose']
['practice and Procedure' 'limitation of Actions' 'trade Practices' 'consumer Protection' 'product Liability'] ['summary Dismissal' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'limitation Period' 'bar to Remedy' 'extinguishment of Cause of Action' 'prosthetic Heart Valve' 'defective Goods' 'fitness for Purpose']

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Procedural Posture

Trade Practices Act Product Liability and Consumer Protection Proceeding With Claims Against the First Respondent and Negligence Claims Against the Second and Third Respondents / First Respondent's Motion to Dismiss the Claims Under O 20 R 2(1)(b) and (c) of the Federal Court Rules

Legal Issues

  1. 1 ["Whether the applicant's claims against the First Respondent were commenced outside the three year limitation periods in ss 74J and 75AO of the Trade Practices Act 1974 (Cth)." 'Whether ss 74J and 75AO extinguish the causes of action or merely bar the remedy.' 'Whether a proceeding commenced outside a non-extinguishing limitation period is, without more, frivolous or vexatious or an abuse of process.' 'Whether the limitation issues were suitable for summary disposition before trial.']

Ratio Decidendi

The motion was dismissed because ss 74J and 75AO of the Trade Practices Act 1974 (Cth) operate, at most, as non-extinguishing bars to the remedy and do not destroy the causes of action. A claim that may be out of time is not, without more, frivolous or vexatious or an abuse of process, and any limitation defence would require factual and legal determinations about the applicant's actual or constructive awareness of the alleged defects or want of fitness for purpose, making the matter unsuitable for summary dismissal.

Court Disposition

The First Respondent's amended motion to dismiss was dismissed with costs.

Orders

  • ["The First Respondent's Motion filed 11 April 2001, and amended on 8 June 2001, is dismissed." "The First Respondent is to pay the Applicant's costs of the amended motion." 'The documents produced under the subpoena dated 15 May 2001 are to be returned to Paynes Solicitors.']