Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 4) [2010] FCA 758

Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 4) [2010] FCA 758

O 5 r 5(1) fixes the time for a cross-claim by reference to the first time fixed for filing the respondent's defence, so Signature could not file as of right by relying on the later date for its defence to the further amended statement of claim. However, the Court extended time because Tyco's further amended statement of claim introduced new and substantial vicarious liability allegations against Signature concerning Security Select Pty Ltd and Mr Califano, Signature had not relevantly delayed, no trial date had been fixed, and refusing the cross-claim would likely cause duplicative proceedings, wasted expense and a risk of inconsistent judgments.

Jurisdiction
Australia
Judgment Date
20 July 2010
Procedural Posture
Practice and Procedure Application Concerning Cross Claim / Interlocutory Notice of Motion by the First Respondent Seeking Leave or Extension of Time to File and Serve a Cross Claim Against Non Parties
Outcome
Notice of motion allowed in part; time extended for the first respondent to bring the specified cross-claim, with costs ordered against the applicant, and the motion otherwise dismissed.
Legal Topics
['pleadings' 'cross Claims' 'extension of Time' 'federal Court Rules' 'vicarious Liability and Agency in Pleadings']
['practice and Procedure' 'civil Procedure'] ['pleadings' 'cross Claims' 'extension of Time' 'federal Court Rules' 'vicarious Liability and Agency in Pleadings']

Case Brief

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Procedural Posture

Practice and Procedure Application Concerning Cross Claim / Interlocutory Notice of Motion by the First Respondent Seeking Leave or Extension of Time to File and Serve a Cross Claim Against Non Parties

Legal Issues

  1. 1 ['Whether, in a proceeding on pleadings, the time in O 5 r 5(1) of the Federal Court Rules for filing a cross-claim without leave is the time for filing the first defence or the time for filing a later defence to an amended statement of claim.' 'Whether the time for Signature to file and serve a cross-claim against Security Select Pty Ltd and Mr Michael Califano should be extended.' 'Whether Signature delayed unduly in seeking to bring the cross-claim.' 'Whether refusing the application would risk duplication, wasted expense and inconsistent judgments through separate proceedings.']

Ratio Decidendi

O 5 r 5(1) fixes the time for a cross-claim by reference to the first time fixed for filing the respondent's defence, so Signature could not file as of right by relying on the later date for its defence to the further amended statement of claim. However, the Court extended time because Tyco's further amended statement of claim introduced new and substantial vicarious liability allegations against Signature concerning Security Select Pty Ltd and Mr Califano, Signature had not relevantly delayed, no trial date had been fixed, and refusing the cross-claim would likely cause duplicative proceedings, wasted expense and a risk of inconsistent judgments.

Court Disposition

Notice of motion allowed in part; time extended for the first respondent to bring the specified cross-claim, with costs ordered against the applicant, and the motion otherwise dismissed.

Orders

  • ["Varies the time in which the first respondent may bring a cross-claim against Security Select Pty Ltd and Mr Michael Califano to 21 July 2010 on condition that the cross-claim be in the form attached to the first respondent's notice of motion of 18 June 2010." "The applicant pay the first respondent's costs of the...