Plaintiff v Defendant

2 The pleadings history of this matter now stretches over a number of years. On 12 August 2005, the Plaintiff filed a writ and general indorsement and subsequently, filed two statements of claim. The first statement of claim was dated 13 November 2006 ("the November 2006 statement of claim"). This was followed by an amended statement of claim dated 18 June 2007 ("the June 2007 statement of claim").

3 The June 2007 statement of claim was filed without leave, on the basis that because the State of Victoria had not filed a defence, the Plaintiff was able to amend the statement of claim once, without leave, before the close of pleadings. This was done in reliance on r 36.03(a) and r 14.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the "Rules").

4 The applicant in this appeal is the Defendant. It seeks a re-hearing of the Plaintiff's application for leave to file and serve the Second Amended Statement of Claim. Consequently, the Defendant seeks to challenge the grant of leave given by Master Daly on 10 November 2008.

5 The Plaintiff submitted that the following matters fall to be determined in the course of the Defendant's re-hearing application:

(a) did the Plaintiff require leave to serve the November 2006 statement of claim?

(b) if the answer to (a) is in the affirmative, did the Defendant waive any requirement for the Plaintiff to seek leave?

(c) if the answer to (a) is in the affirmative, and the answer to (b) is in the negative;

(i) can the Plaintiff amend the general indorsement; or

(ii) should leave be granted to add a new cause of action under r 14.03 and, if so, on what terms?

6 The Plaintiff further submitted that matters (a) and (c)(ii) were ventilated before Master Daly whereas (b) was not, but falls within the ambit of the Plaintiff's original summons. Additionally, the Plaintiff submits that matter (c)(i) is a new matter which was raised for the first time in the Plaintiff's summons dated 10 November 2009. Leave was sought for this to be heard with the balance of the issues the subject of this appeal to avoid a multiplicity of applications. The Defendant agreed to this course of this action subject to the reservation that the affidavits in support of the 10 November 2009 summons (namely an affidavit of Wayne Kelcey, sworn 30 October 2009, and an affidavit of Patrick John Walsh, sworn 5 October 2009) should not be relied upon other than for the purpose of the application the subject of the 10 November 2009 summons. With the Plaintiff's concurrence in this respect, I heard the application the subject of the 10 November 2009 summons on this basis.

7 As was common ground between the parties, depending upon my opinion on what might be termed initial or fundamental issues, it may not be necessary to determine or express an opinion on all the issues raised in this appeal by way of re-hearing or with respect to the matters raised in the 10 November 2009 summons.

8 Order 14 of the Rules provides for the service of pleadings. The first proposition of importance in the present context is r 14.01 which provides that no statement of claim shall be served where the indorsement of claim on a writ constitutes a statement of claim in accordance with r 5.04. It is not suggested in the present proceedings that the general indorsement constitutes a statement of claim in accordance with r 5.04. Consequently, the provisions of r 14.02 apply:

"14.02 Statement of claim not indorsed on writ

Where the indorsement of claim on a writ does not constitute a statement of claim in accordance with Rule 5.04 and a defendant files an appearance, the plaintiff shall serve a statement of claim on that defendant within 30 days after the defendant's appearance, unless the Court otherwise orders."

Although the unconditional appearance of the Defendant was filed and served on 16 August 2006, no issue is raised in the present proceedings in relation to the filing of the November 2006 statement of claim on 13 November 2006 with respect to the provisions of r 14.02.

9 Rule 14.03 makes provision for the alteration of claims with reference to any general indorsement as follows:

"14.03 Alteration of claim endorsed on writ

(1) Where a statement of claim is served in a proceeding commenced by writ, the plaintiff may therein alter, modify or extend the claim as endorsed on the writ without amendment of the indorsement.

(2) The Court may, by order, allow the plaintiff to serve a statement of claim the effect of which will be to add a new cause of action to or substitute a new cause of action or a cause of action disclosed in the writ.

(3) Where the Court makes an order under paragraph (2), it may further order that the plaintiff shall amend the indorsement of claim on the writ to make it conform to the statement of claim."

10 In the event that the indorsement of claim is not a statement of claim, r 5.04(2)(b) requires that it be:

" a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding."

11 With respect to the relationship between r 14.02 and r 14.03, both the Plaintiff and the Defendant relied upon passages from the joint dissenting judgment of Barwick CJ and McTiernan J in Renowden v McMullin.[1] Although in dissent, this was irrelevant to the statement of principle quoted and relied upon by both parties. The Plaintiff and the Defendant relied upon slightly different parts of the joint judgment. However, for convenience, the passages incorporating all parts of the judgment referred to are set out.

12 In relation to the particularity required for the purposes of r 5.04(2)(b), the Plaintiff made reference to the following passage from the joint judgment of Barwick CJ and McTiernan J in Renowden v McMullin:[2]

"The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularly save where and to the extent to which particularly is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded."

13 Barwick CJ and McTiernan J continued as follows (the Defendant referring to this passage):[3]

"But insufficiency of the indorsement does not render the writ a nullity.[4] On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claims in a formal fashion in his statement of claim whether as originally filed or as sought to be amended.[5] The statement of claim is the specific way of stating the claim he has endorsed on the writ[6]".

The joint judgment (with the Plaintiff referring to the third and fourth sentences in the following passage):

"Where it is sought to strike out a statement of claim on the ground that it asserts a claim not include in the writ or to amend a statement of claim the indorsement of the writ governs or determines whether the statement of claim should be struck out or amended as the case may be. The right given to the plaintiff by O. 20, r. 2, of the Victorian Rules does not in our opinion require any modification of that statement. The alteration, modification, or extension of the claim pursuant to this rule must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the Rules for variation in the statement of facts, or the extent of the remedy or relief sought. 'A plaintiff may amend his statement of claim once without leave by which I understand that he may widen it or lessen it or express it in better terms, so long as he keeps it in substance consistent with what he claims in his writ'.[7]"

14 In relation to the effect of any statement of claim filed subsequent to the writ and its indorsement, the parties also made reference to the judgment of Barwick CJ and McTiernan J in Renowden v McMullin, though for different purposes. The critical passage of the joint judgment is as follows:[8]

"But, while the indorsement of the writ determines the essential nature of the action, it does not define, nor necessarily form part of the definition of the issues for trial. That is done by the pleadings of which the writ does not form part. When a statement of claim has been delivered it will in its finally amended form determine the issues for trial. It will not normally be necessary to refer to the indorsement on the writ of summons to ascertain such issues. Possibly, however, where there is ambiguity in the statement of claim the indorsement may serve to throw light upon the meaning of the statement of claim or of expressions in it. Only inasmuch as the statement can be said to be the initiation of specific issues for trial in the action, can it be properly said that the statement of claim supersedes the indorsement of the writ".

15 The Plaintiff relied on this passage as authority for the proposition that once a statement of claim has been filed that pleading supersedes the indorsement. That is, it becomes the base or foundation of pleading against which further pleadings are to be referenced, and also the basis upon which any amendments to the statement of claim are to be considered. The Defendant, on the other hand, submitted that the indorsement continues to remain of relevance for the purpose of considering any amended statements of claim. This is the case, it was submitted, even after the initial statement of claim is filed, as well as after the filing and service of the endorsed writ for the purposes of r 14.03(2). In other words, Rule 14.03(2) would have a continuous operation with respect to the initial and any subsequently amended statements of claim, at all times by reference to the area of the claim as "marked out" by the indorsement.

16 In my opinion, the Defendant's submission is neither supported by the joint judgment of Barwick CJ and McTiernan J in Renowden v McMullin, nor the provisions of O 14 of the Rules. The sentence which the Defendant relied upon (the last sentence in the passage from the joint judgment last quoted) is, in my view, to be read in the context of the preceding parts of the paragraph quoted, particularly the immediately preceding three sentences which indicate that the indorsement may be resorted to for the purpose of resolving ambiguity of expression in the statement of claim but not otherwise. Additionally, r 14.03(1), which provides that a proceeding may be modified or extended by a statement of claim without the need to amend the indorsement, does, in my view, indicate that subject to recourse to the indorsement for the purposes of resolving an ambiguity, the statement of claim is to be taken as the base or commencement of proceedings for all other purposes. This position is supported in the joint judgment of Barwick CJ and McTiernan J:[9]

"Order 20, r. 2, of the Rules of the Supreme Court of Victoria which we have already mentioned provides that 'whenever a statement of claim is delivered the plaintiff may therein alter, modify or extend his claim without any amendment to the indorsement of the writ'. This, in our opinion, has the same effect as O. 18, r. 15(2), of the English Rules of the Supreme Court 1965 which says that 'A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ, or arises from facts which are the same as, or included or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him the indorsement of the writ without amending the indorsement"[10]

17 Order 20, r 2 of the then Rules of the Supreme Court (Victoria) is, in substance, the same as r 14.03(1) of the current Rules, and continued in the same form until replaced by the current Rules.

18 On this basis, I turn to the first issue raised in the Defendant's re-hearing application, namely that the Plaintiff require leave to serve the November 2006 statement of claim.

General indorsement and the November 2006 statement of claim

19 The writ with its indorsement named five separate plaintiffs and four separate defendants. The plaintiffs were

(a) National Logistics Co-Ordinators Pty Ltd (in liquidation) ("NLC");

(b) Michael John Griffin ("Griffin"), the liquidator of NLC;

(c) NLC Holdings Pty Ltd ("NLC Holdings" or "NLCH");

(e) Geoffrey Ormond Harrison ("Harrison"), the liquidator of Jetelano.

20 The Defendant set out the matters claimed in the general indorsement in its outline of the Defendant's submissions dated 15 October 2008.[11] The relief sought was damages against the State of Victoria ("the State") arising on the basis claimed. These are conveniently summarised in the Plaintiff Applicant's outline of submission dated 10 November 2009:[12]

"There were five plaintiffs[13] and four defendants[14] (three of whom were Ministers of the Crown) and the general indorsement included claims for damages against the State of Victoria ('the State') arising from:

(a) negligent misrepresentations made to Mr Goss of NLC Logistics Co-ordinators Pty Ltd ('NLC');

(b) breach of contract (defined as a 'Partnering Agreement') made between the State and NLC relating to the development of the intermodal freight terminal at Morwell[15];

(c) breach of a lease made between the State and NLC in respect of Hazelwood Siding[16];

(d) misleading or deceptive conduct by the State contrary to s.11 of the Fair Trading Act 1985[17], s.9 of the Fair Trading Act 1999 and s.52 of the Trade Practices Act 1974[18];

(e) wrongful provision by the State to Freight Australia of information confidential belonging to NLC[19]

(f) a claim based on unconscionable conduct[20]."

21 The Plaintiff submitted that all claims contained in the general indorsement relate to the State encouraging Mr Goss and his companies ("the Goss Group") to develop an intermodal freight terminal at Morwell. It was further submitted that the contract pleaded, the Partnering Agreement, was made by the State with Mr Goss on behalf of NLC, a wholly owned subsidiary of NLC Holdings, which was de-registered at the date the writ was issued (as is pleaded in the general indorsement).

22 In the course of oral submissions on behalf of the Plaintiff, Dr Pannam QC made reference to the negotiations and alleged representations made to Mr Goss. Dr Pannam said:[21]

"The allegation is during the period from January to March 1998 and in the course of Goss' negotiations with the State of Victoria, that have been previously referred to. There were representations made that his financial interest would be secure even if VicTrack would not sell and transfer the land to Goss. That the government would ensure that VicTrack provided him with a long term lease of the land as part of the means by which Mr Goss would achieve financial security in the absence of owning the land.

Even though Goss required ownership of the terminal land, at least in the first instance, whilst the long term situation of the ownership of the land was worked out, and that despite Goss' stated concerns that the project was too risky for him and his family unless Goss owned the freehold of the terminal land, that their interests would be protected. The important point is, is that January to March of 1998 predates the incorporation of the 1st Plaintiff. The difficultly is next seen in 24.

'At the time the state government, through its ministers, made those representations', that is in that identified period of January to March of 1998, 'To NLC', which was an impossibility because it didn't exist '(Goss)', so that they were made to Mr Goss but no NLC is intruded, the nonexistent company at the time, 'The state government knew or ought to have known'. Then if one looks down to (b), 'That NLC was relying on the accuracy of the statements', of course it wasn't, because it wasn't in existence."

Further, Dr Pannam submitted that the substance of the claim the subject of the general indorsement was quite clear and, further, that the "non-existence" of NLC had no bearing on the substance of the claim. He noted that the proper claimant was a company which did exist (NLC Holdings), that the alleged representations were made to it, and it was named as a Plaintiff in the writ.

23 The Plaintiff submitted that the effect of the November 2006 statement of claim was to narrow the issues by reference to the general indorsement. Consequently, the November 2006 statement of claim did not enliven the operation of r 14.03, because it did not "modify or extend the claim as endorsed on the writ" in any relevant sense. More specifically, the Plaintiff's submissions in relation to this issue are set out in its outline of submission, as follows:[22]

"13. In the November 2006 statement of claim it is pleaded that:

(a) NLC Holdings entered into a contract with the State concerning the development of the intermodal freight terminal;

(b) by reason of representations made by the State it engaged in negligent misrepresentation and conduct that was misleading or deceptive contrary to s.11 of the Fair Trading Act 1999 or alternatively s.9 of the Fair Trading Act 1985.

1. It is submitted that, having regard to what Barwick CJ and McTiernan J said in Renowden v McMullin[23] about what was required of an indorsement on a writ not constituting a statement of claim:
   • (a) the General Indorsement raised all of the essential facts relating to a Goss Group company's complaint leaving it open as to which of his companies was properly identified as a party to the contract and to whom the negligent misrepresentations were addressed;
   • (b) new causes of action have not been added to the November 2006 statement of claim; and
   • (c) new causes of action have not been substituted for existing causes of action;
   • (d) the November 2006 statement of claim narrowed the focus of the General Indorsement.
2. For the reasons stated above it is clear that the General Indorsement set out all of the parties and all of the facts and that the November 2006 statement of claim effectively narrowed the issues and was not irregular."

24 The Defendant submitted that leave to file the 2006 statement of claim was required, relying on r 14.03(1) and r 14.03(2), as follows:[24]

"18. Rule 14.03(1) expressly permits a party by statement of claim to 'alter, modify or extend' its claims from those indorsed on the writ. But this rule is subject to Rule 14.03(2). Rule 14.03(2) applies that where a new claim is sought to be added or substituted for those claims indorsed on the writ, leave of the Court is required.

1. Rules 14.03(1) and (2) reflect the well established common law principle that a plaintiff 'may widen (the statement of claim) or lessen it or express it in better terms, so long as he keeps it in substance consistent with what he claims in his writ': Moore v Alwill (1991) 8 LR Ir 245 at 247-8 per Dowse B. In that case Dowse B. held that a plaintiff cannot in the statement of claim change the whole character of the proceeding by introducing an entirely new and original cause of action. This proviso is important and has been stringently applied by both the High Court and the Full Court.
2. In Renowden v McMullin Barwick CJ and McTiernan J held that:[25]

'The alteration, modification or extension of the claim...must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the rules for variation in the statement of facts, or the extent of the remedy or relief sought'.[26]

1. In Dundas v Incorporated Nominal Defendant [1976] VicRp 71; [1976] VR 667 at 669, Young CJ and Gowans and Harris JJ, held that:

'...the statement of claim must remain within the area marked out by the indorsement and cannot completely change the cause of action...'

1. It is settled practice that an indorsement cannot be altered to add a claim after the expiry of a limitation period; see Rubenstein v Truth & Sporstman Ltd [1960] VicRp 75; [1960] VR 473 at 475. [27]"

25 The Defendant also submitted that the effect of the identification of NLC Holdings as the sole Plaintiff in the November 2006 statement of claim was to substitute a new cause of action by reference to that contained in the indorsement. In response, the Plaintiff submitted that it was "perfectly clear that there was a misdescription of the party to whom the representations were made and to whom the contract - with whom the contract was entered into. The other company that was the lead player, was simply the company in the group that took the lease".[28]

26 In my opinion, the Plaintiff is correct in its submission that the identification of NLC Holdings as the sole Plaintiff in the substance of the claim (as set out in the general indorsement) did not alter, modify or extend the claim for the purposes of r 14.03, particularly having regard to the fact that NLC Holdings was always named as one of the plaintiffs and clearly identified as the sole Plaintiff in the November 2006 statement of claim. Additionally, as previously indicated, it is clear from the contents of the general indorsement that there was a mistake in identifying NLC, NLC Logistics Co-ordinators Pty Ltd, as the party to which representations were made by the State. It was clear from the dates of the alleged representations that this company was then de-registered.

27 The consequence of the view I have taken with respect to the November 2006 statement of claim by reference to the general indorsement is that the Plaintiff was entitled to file and serve this statement of claim, without any necessity for leave under r 14.03. A further consequence, in reliance on the position stated in the joint judgment of Barwick CJ and McTiernan J in Renowden v McMullin,[29] is that the November 2006 statement of claim is to be regarded as the base or fundamental pleading against which any further amendments to the Plaintiff's claims should be considered - rather than by reference to the general indorsement. Consequently, the June 2007 statement of claim could be amended by the Plaintiff without leave as this was the only amendment which it made to the 2006 statement of claim, and it took place before the close of pleadings.[30]

28 The second amended statement of claim does not differ in substance from the June 2007 statement of claim, save for the amendment and addition of further particulars. The question whether or not leave ought to be granted to file the second amended statement of claim depends upon considerations arising under O 36 rather than those arising under O 14, particularly with reference to the scope of the indorsement.

29 The Defendant submitted that were I to entertain the granting of leave to file the Second Amended Statement of Claim I should have regard to a range of defects which it says exist and which are set out in its outline of submissions.[31] It appears that these matters were addressed in the 10 November 2008 orders of Master Daly, save for the defect raised with respect to paragraph 2 of the Second Amended Statement of Claim, namely that no consideration is pleaded for the alleged agreement. I note that an amendment has been made to paragraph 2 so that it now pleads the consideration for the alleged agreement. It appears that the other defects in the pleadings and particulars contained in the Second Amended Statement of Claim as set out in the Defendant's submissions have, merely by reference to the Second Amended Statement of Claim itself, been attended to pursuant to the order of Master Daly made on 10 November 2008. Consequently, it should be noted that I have not determined, finally or otherwise, whether the Second Amended Statement of Claim might properly be subject to any further application by the Defendant with respect to the manner in which it is pleaded the pleadings are particularised. On this basis, and also noting that the Plaintiff in its submissions indicates that the Defendant's re-hearing application would be resolved by a negative answer to the question whether the Plaintiff required leave to serve the November 2006 statement of claim,[32] it is not necessary to take this aspect of the matter further.

30 As indicated previously,[33] the Defendant submitted that the indorsement could not be altered to add a claim after the expiry of a limitation period. The Defendant referred to a passage in Rubenstein v Truth & Sportsman Ltd,[34] which reads: "In accordance with settled practice, the Court would not allow an amendment of the indorsement which would have the effect of depriving the defendants of defences based on the statute of limitations." More specifically the Defendant submits as follows:[35]

"27. The other inconvenient truth for the plaintiff is that all of the claims NLCH now wishes to pursue in its own right are now clearly statute barred unless, by sleight of hand, it can obtain unconditional leave under Rule 14.03(2). First, on the face of the proposed amended pleading NLCH's supposed claims in contract became complete in June 1999 and therefore the limitation period expired in that regard no later than June, 2005. Secondly, its loss for the purposes of its claims under the Fair Trading Act 1999 or in equity would similarly date from no later than about June, 1999 when the State entered into the PIL with Freight Victoria, thereby depriving NLCH of its purported right of first refusal, so that similarly, those claims became statute barred no alter than June, 2005.

1. If the plaintiff seeks to rely upon Rule 36.01(6) and section 34 of the Limitation of Actions Act 1958, that would be misconceived. With respect, those provisions expressly apply only to the amendment of a document and do not apply to the grant of leave for the filing of a statement of claim which raises new or different matters outside of the general indorsement. Neither Rule 36.01(6) nor section 34 of the Limitation of Actions Act 1958 are directed to a situation where leave is required under Rule 14.03(2)."

1"> 31 The Plaintiff made the following submissions in response:[36]

"58. The Defendant's objections regarding the Act are misconceived:

(a) The application is premature because the limitation provisions do not extinguish the Plaintiff's rights, but merely bar the remedy. The Defendant must specifically plead the running of the relevant period[37]. According to Handford's Limitation of Actions[38]:

'The rule applies even if the statement of claim discloses that the cause of action accrued so long ago that the limitation period must have expired before issue of the writ. Such a statement of claim should not be struck out on this ground. If the defendant does not plead limitation, the court should not consider the matter of its own motion. The rule that limitation defences must be specifically pleaded applies not only to the provisions of the Limitation Acts themselves, but also to statutes providing special periods of limitation. If the defendant fails to plead limitations, the immunity conferred by the running of the limitation period if waived and the plaintiff may, where allowed by the relevant court rules, enter judgment in default.'

(b) If in its defence the Defendant relies on the limitation statutes the Plaintiff will please in its reply that by reason of the Defendant's conduct[39] the Defendant is estopped from relying the statutes[40] for the period from 24 September 2004[41] and 2 December 2005 as Goss was advised by a representative of the Defendant on the former date that if he stopped legal proceedings the Defendant would arrange for an independent investigation of all issues and abide any recommendations. Goss duly stopped legal proceedings and co-operated fully with an investigation by John McMillan, which reported back in about March 2005. However, Goss was never provided with a copy of Mr McMillan's report, which was only received (in redacted form) by the Plaintiff's solicitors in December 2005 pursuant to a Freedom of Information application[42];

(c) In Wardley Australia Limited v The State of Western Australia[43] the High Court made it clear that it did not approve of applications concerning limitation questions on an interlocutory basis. Mason CJ, Dawson, Gaudron and McHugh JJ[44] said:

'We should, however, state in the plainest of terms that we regard it as undesirable that limitation question of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.'

1. Further, the proposed second amended statement of claim contains claims based on unconscionable conduct and breach of fiduciary duties, both based on equitable principles.[45] The dates of the conduct alleged range between June 1999 and October 2001.
2. Section 5(8) of the Limitations of Actions Act 1958 ("the Act") provides:

'This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the Court by analogy in like manner as the enactment corresponding to that provision was applied before the repeal of that enactment by the Limitation of Actions Act 1955.'

1. The effect of s5(8) of the Act is that there is no prescribed limitation period where a plaintiff seeks equitable relief."

32 In my opinion it is not appropriate to take the limitation of actions issue further in the present proceeding for two reasons. The first is that the pleadings have not been completed and, consequently, it would be inappropriate to form any view on the limitation of actions issues prior to the matter being informed by a filed defence and a filed reply. Secondly, the shutting out of a claim on the basis of the operation of statutes of limitations is a serious matter affecting the position of all parties to a proceeding. In this respect I am very mindful of the position indicated by the High Court in Wardley Australia Limited v The State of Western Australia,[46] as set out above in paragraph 58(c) of the Plaintiff's submissions.

What date should any pleadings amendment apply from?

33 On the basis that leave to file the November 2006 statement of claim was required and granted, the Defendant submitted that leave should only operate from the date it was granted, rather than dating back to any earlier point of time. In support of this submission the Defendant relied upon the judgment of Ormiston JA in Agtrack (NT) Pty Ltd v Hatfield.[47]

34 As indicated in the Defendant's submissions and the Plaintiff's response, this issue only arises in the event that leave is required to file the November 2006 statement of claim and, consequently, where reliance needs to be placed on the provisions of Order 36 with respect to the amendment of pleadings; and, particularly, r 36.01(6) - which, together with subsection 34(1) of the Limitation of Actions Act 1958 (Vic), abrogates the rule in Weldon v Neal.[48]

35 In my opinion the judgment of Ormiston JA in Agtrack (NT) Pty Ltd v Hatfield does not, in the present circumstances, detract from the general position as indicated in Wardley Australia Limited v The State of Western Australia. The question with respect to the application of the limitation of actions legislation is generally a matter for determination at trial, rather than in the course of interlocutory proceedings. In this context it is helpful to set out those parts of the passages from the judgment of Ormiston JA in Agtrack which were relied upon by the Defendant, as follows:[49]

"[49] In my opinion, notwithstanding the very close similarity between the inserted section in each Limitation Act and the provisions of the 1986 rules, I am not persuaded that the new Rule was intended to have other than a procedural effect, or to do more than alter the nature of the discretion to be applied to a much broader discretion when considering amendments, which might otherwise appear to defeat limits laid down in limitations legislation."

"[50] My prima facie conclusion therefore is that r 36.01(6) was intended only to have a procedural effect designed to ensure the proper and fair consideration of applications to amend pleadings where, if the amending claim had been brought independently and out of time, that claim would have been automatically rejected as statute-barred pursuant to existing authority. The court now in the exercise of its discretion may look at the totality of the circumstances to resolve whether it is in fact fair to permit that claim to be introduced by way of amendment. It would never have been proper for the rules to have attempted more, but the concern was that the 'rule in Weldon v Neal' had been given so rigid an interpretation, especially in this State in Cutrona, that it might be perceived that, if amendment were effected solely by changes to rules of court, then a defendant's immunity or other rights pursuant to a limitations statute would be invalidly defeated by the abrogation of that 'rule', at least in certain circumstances ... That wider power does require the consideration of potential prejudice, although the new provisions appear to concentrate on the conduct of the trial rather than any inherent unfairness in allowing stale claims to be litigated, but again it is not necessary to resolve that for the purpose of this appeal."

"[52] Here it is necessary to construe the rules only so far as will permit the court to exercise its discretion unfettered by the view formerly taken in this jurisdiction as to the 'rule in Weldon v Neal'. There must therefore, in my opinion, be a close connection between the claim which has already been instituted by the filing of the writ with the indorsed statement of claim and the claim which the respondent wishes to add by way of amendment, unless, of course, she wishes, and is able, to call in aid s 34 of the Limitation of Actions Act or its Northern Territory equivalent. In essence, for the discretion to be exercised favourably towards her under the rules, the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded. In truth, there will then be a mere amendment of an existing claim, albeit in the present case it involves a characterisation of the claim in a different way and in the form of a different cause of action, so long as it is a mere recategorisation (or change of legal theory) of the claim or a restatement in different legal terms of the alleged outcome of the essential pleaded facts."

36 On the basis of the Defendant's submissions, various claims became statute barred no later than June 2005. Without indicating any view as to whether this date is correct, I assume for present purposes that there may be a limitation of actions issue with respect to each of the statements of claim from the November 2006 statement of claim to the further amended statement of claim, and including the June 2007 statement of claim. However, for the reasons indicated previously I am of the opinion that to the extent that the statements of claim contain new claims they are claims which arise "out of the same facts or substantially the same facts as support the claims already pleaded".[50] To the extent that there are variations between these pleadings, they only involve "a characterisation of the claim in a different way and in a form of a different cause of action ... [and] ... a mere re-categorisation (or change of legal theory) of the claim or are restated in different legal terms of the alleged outcome of the essentially pleaded facts".[51] In expressing this view I am not departing from the position that the fundamental or base pleading is, for the reasons indicated, the November 2006 statement of claim. To the extent that the November 2006 statement of claim is within the ambit of the indorsement of the writ[52] it follows, in my opinion, that the statement of claim is in all the circumstances within an existing claim (albeit, narrowed). In relation to the subsequent statements of claim, that of June 2007 and the Second Amended Statement of Claim, I am of the view that they are merely a re-categorisation or change of legal theory of the claim, or a re-statement in different legal terms of the alleged outcome of the essentially pleaded facts as set out in the November 2006 statement of claim.[53]

37 For these reasons, the appeal from the order of the Honourable Associate Justice Daly made on 10 November 2008 is dismissed. The issue of costs is reserved to enable the parties to make further submissions in this respect.

[1] [1970] HCA 24; (1970) 123 CLR 584 at 595.

[2] (1970) 123 CLR 595 at 595.

[3] (1970) 123 CLR 595 at 595.

[4] Hill v Luton Corporation [1951] 2 KB 387; Pontin v Wood [1962] 1 QB 594.

[5] See Cave v Crew (1893) 62 LJ Ch 530; United Telephone Co. v Tasker (1888) 59 LT 852; Moore v Alwill (1881) 8 LR Ir (CL) 245.

[6] Per Dowse B in Moore v Alwill (1881) 8 LR Ir (CL) 245; 15 Ir LT 54, at 55.

[7] Per Dowse B in Moore v Alwil (1881) 8 LR Ir (CL) 245; 15 Ir LT 54, at 55.

[8] [1970] HCA 24; (1970) 123 CLR 584 at 596.

[9] (1970) CLR 123 584 at 596-7.

[10] See also Moore v Alwill (1881) 8 LR Ir (CL) 245_._

[11] See paragraph 5 of the outline of the Defendant's submissions dated 15 October 2008.

[12] See paragraph 11 of the Plaintiff/Applicant's outline of submission dated November 2009.

[13] National Logistics Co-ordinators Pty Ltd, Michael John Griffin, NLC Holdings Pty Ltd, Jetelano Pty Ltd and Geoffrey Ormond Harrison.

[14] State of Victoria, Geoffrey Ronald Craige, Thomas Carter Reynolds, The Honourable John Brumby.

[15] Paragraphs 27, 28, 43 and 44 of the general indorsement.

[16] Paragraphs 29 to 46 of the general indorsement.

[17] See paragraphs 23, 26, 34, 41, 42, 47, 48, 49, 56-66 and 69 of the general indorsement.

[18] See paragraphs 50 to 55 of the general indorsement.

[19] Paragraphs 50 to 55 of the general indorsement.

[20] See paragraph 43(c) of the general indorsement.

[22] Plaintiff /Applicant's outline of submission, paragraphs 13 to 15.

[23] Plaintiff /Applicant's outline of submission, paragraph 8.

[24] Outline of the Defendant's submission, paragraphs 18 to 22.

[25] [1970] HCA 24; (1970) 123 CLR 584 at 595.

[26] The High Court affirmed the decision of the Victorian Full Court in Renowden v McMullin [1969] VicRp 96; [1969] VR 744. There Winneke CJ and Gowans and Newton JJ at 751 held that: "No doubt a statement of claim cannot completely change the cause of action from that endorsed on the Writ".

[27] 'In accordance with settled practice, the Court would not now allow an amendment of the indorsement which would have the effect of depriving the defendants of defences based on the statute of limitations'.

[29] [1970] HCA 24; (1970) 123 CLR 584 at 595-6**.**

[31] See outline of the Defendant's submission, paragraphs 33 and 34.

[32] See Plaintiff/Applicant's outline of submission, paragraph 6.

[34] [1960] VicRp 75; [1960] VR 473 at 475.

[35] Outline of the Defendant's submission, paragraphs 27 and 28.

[36] Plaintiff/Applicant's outline of submission of 10 October 2009, paragraphs 58 to 60.

[37] See Rule 13.07 and the commentary in Williams, Civil Procedure, Volume 1, paragraph 13.07.210, page 2898. See also Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27 at 74-76. With respect to s 82(2) and 37(2) of the Fair Trading Act 1985 see: PSL Industries Ltd v Simplot Australia Ltd [2003] VSCA 7; (2003) 7 VR 106 per Chernov JA at [18] and [25].

[38] 2nd ed, 2007, paragraph 50.10.2380 at page 293.

[39] See paragraphs 72 to 76 of Jeffrey Goss's affidavit sworn 31 May 2007 and paragraph 18 of Patrick Walsh's affidavit.

[40] Commonwealth v Verwayen (1990) 170 CLR 394.

[41] 24 September 2004 is the date of the telephone call between Mr Goss and Nicole Rees referred to in paragraph 10 of Mr Goss's affidavit sworn 19 September 2008.

[42] The McMillan report was received by Gadens on 2 December 2005 (see Goss affidavit sworn 19 September 2008, paragraph 12 and the Patrick Walsh affidavit sworn 7 October 2008, paragraphs 17(b), 17(f), 18(n)).

[43] [1992] HCA 55; (1992) 175 CLR 514.

[44] [1992] HCA 55; (1992) 175 CLR 514 at 533-34.

[45] See paragraphs 21 to 24 and 25 to 28 of the proposed statement of claim respectively.

[46] [1992] HCA 55; (1992) 175 CLR 514 at 533-34.

[47] [2003] VSCA 6; (2003) 7 VR 63 at [37] to [44] and [81]; and see outline of the Defendant's submission of 15 October 2008, paragraph 31.

[48] (1887) 19 QBD 394; and see also PSL Industries Ltd v Simplot Australia Ltd [2003] VSCA 7; (2003) 7 VR 106.

[49] [2003] VSCA 6; (2003) 7 VR 63 at 91-92.

[50] See Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6; (2003) 7 VR 63 at 92 (Ormiston JA).

[51] See Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6; (2003) 7 VR 63 at 92-3 (Ormiston JA).

[53] Within the limits of the test or principle expounded by Ormiston JA in Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6; (2003) 7 VR 63 at 92-3, paragraph 52.