PSL Industries Ltd & Anor v Simplot Australia Pty Ltd [2003] VSCA 7

Court of Appeal (Vic)|2003-02-28|Before: ORMISTON and CHERNOV, JJ.A. and O'BRYAN, A.J.A.

Courts - Practice - Pleadings - Amendment to pleadings - Amendment claiming breach of s.52 of the Trade Practices Act 1974 after expiration of limitation period in s.82(2) of the Act - Whether inconsistency for purpose of s.109 of the Constitution between s.82(2) and s.34 of the Limitation of Actions Act 1958 and r.36.01(6) of the Rules of Court - Whether s.82(2) provides "otherwise" for the purposes of of the - Whether repeal of (Vic.) by 1999 abolished potential claims through breach of s.11 of - Whether potential claim for breach of s.11 of prosecutes "accrued rights" at time of its repeal for the purposes of of the - , s.109, (Cth) , , (Cth) , (Vic.) , Rules of Court, r.36.01(6).

Having had the advantage of reading the judgment of Chernov, J.A. in draft form, I am in agreement with the conclusions he has reached and his reasons for reaching them, subject only to this, that if there be thought to be any difference in the reasoning in this case and that in my judgment in Agtrack N.T. Pty Ltd. v. Hatfield[1], I would adhere to what I have said in that judgment. For myself, however, I do not perceive there to be any relevant inconsistency in reasoning.

This is an appeal against the decision of a judge of the Supreme Court made on 5 November 2001 giving leave to the respondent to amend its pleadings so as to allege pre-contractual breaches by the appellants of ss.52 and 59(2) of the Trade Practices Act 1974 (Cth.) ("the Act") and s.11 of the Fair Trading Act 1985 [2] ("the Fair Trading Act") in circumstances where the cause of action arising out of such breaches had accrued outside the three year limitation period fixed by s.82(2) of the Act [3]. Before the primary judge, the respondent successfully relied on s.34 of the Limitation of Actions Act 1958 ("the Limitation Act") and rule 36.01(6) of Chapter I of the Rules of Court[4] in support of its claim that the amendment should be allowed notwithstanding that the limitation period may have expired. The appellants sought leave to appeal against the decision on the principal bases that his Honour should have held that s.82(2) of the Act operated to render the Victorian provisions

inapplicable for the purposes of the proposed amendment and that any right that the respondent may have had against the appellants under the Fair Trading Act was lost when it was repealed and replaced with a new Act in 1999.

Leave to appeal against his Honour's decision was granted by this Court on 7 December 2001 which also ordered, in effect, that the appeal be heard immediately after the hearing of the appeal against the decision of the same trial judge in Hatfield v. Agtrack (NT) Pty Ltd[5] which was concerned with the operation of the Victorian provisions in the context of the Civil Aviation (Carriers' Liability) Act 1959 (Cth.). Accordingly, this Court, as presently constituted, heard first the appeal in Hatfield and then the present appeal. As will become evident, a number of the issues raised in this appeal are largely resolved by the decision of Ormiston, J.A. in Hatfield[6] (with which O'Bryan A.J.A. and I agreed). It follows that these reasons should be read in conjunction with those of his Honour in Hatfield.

Before dealing with the issues raised by this appeal, it is necessary to set out briefly the background to it. The respondent commenced the proceeding against the three appellants on 27 June 1997 in respect of the sale to it by the first and second appellants in 1995 of a food manufacturing business. The statement of claim as filed alleges that the sale was effected by a number of agreements and that the warranties and undertakings that were given by the first and second appellants in relation to the various agreements breached s.52 of the Trade Practices Act and the equivalent provision in the Fair Trading Act. Such breaches, it is pleaded, caused loss and damage to the respondent. It should be mentioned for completeness that the statement of claim also alleges breaches of contract and common law duty of care by the appellants.

On 29 October 2001, his Honour heard an application by the respondent for leave to amend its statement of claim to plead that the first and second appellants had made pre-contractual representations and had provided warranties and undertakings to the respondent's parent company which were misleading and deceptive, and that such conduct had led the respondent into entering into the agreements in question thereby causing it loss and damage. As his Honour noted, by the proposed paragraph 25C, the respondent claims that it suffered loss and damage of two kinds: first, it paid too much for the business and secondly, it had to fund losses in gross profit against forecasts that were made to it. The learned judge concluded that any loss and damage suffered by the respondent occurred on 15 September 1995 when it paid the purchase price for the businesses and that the limitation period ran from that date[7]. His Honour was of the view that the proposed amendments involved a new head of claim or a new cause of action and rejected the respondent's argument that they were no more than an elaboration of the existing pleading. Thus, as the learned judge said, the proposed claims were outside the respective limitation periods specified in s.82(2) of the Act and s.37(2) of the Fair Trading Act. As I understand it, there is no challenge to this finding, but if it was challenged, in my view, there is no error in his Honour's decision on this issue.

The appellants pressed two principal arguments before his Honour. First, it was claimed that, there was inconsistency between the operation of the Victorian provisions and the limitation period fixed by s.82(2) of the Act for the purposes of s.109 of the Constitution thereby rendering the Victorian provision inoperable so that the court did not have the discretion to allow the amendment sought. This argument was predicated on the time limit that was fixed by s.82(2) being an ingredient of the cause of action so that, at its expiration, any right the respondent may have had to claim damages against the appellants for breach of s.52 of the Act, expired. Secondly, it was argued for the appellants that the respondent lost any right it may have had to claim damages for breach of the Fair Trading Act for reasons already stated.

These arguments were rejected by the learned primary judge. Consistently with his decision in Hatfield, his Honour effectively decided that the Victorian provisions operated to vest in the court a discretion to allow the pleadings to be amended notwithstanding that the limitation period specified in s.82(2) of the Act (and s.37(2) of the Fair Trading Act) had expired. The judge considered that, on a proper construction of s.82, the time limit in sub-s.(2) was not an ingredient of the cause of action and only barred the claim. His Honour concluded that there was no relevant inconsistency between the Victorian provisions and s.82(2) of the Act and, therefore, they were not rendered invalid by s.109 of the Constitution.

His Honour was also of the view that, since s.37(2) of the Fair Trading Act did not extinguish the relevant cause of action at the expiration of the limitation period prescribed by it, the respondent's right to claim damages for breach of s.11(1) of the Fair Trading Act in respect of the pre-contractual representations and warranties was properly characterised as an "accrued right" for the purposes of the Interpretation Act which could be pursued under the 1999 Act. In the circumstances, said his Honour, the respondent should be permitted to amend its pleadings to press that claim.

At the hearing of the appeal the appellants advanced essentially three principal reasons for their contention that his Honour erred in allowing the amendments sought by the respondent. It was first said that the Victorian provisions applied only to periods of limitation fixed by Part 1 of the Limitation Act and consequently, they did not extend to s.82(2) of the Act or to s.37(2) of the Fair Trading Act. In support of that claim, reliance was placed on what Batt, J. said as to that in Keller v. Bayside City Council[8] and on the fact that his Honour's observation was noted but not disapproved in Anglo Irish Beef Processors International v. Federated Stevedores Geelong[9]. Secondly, it was argued that there is relevant inconsistency between s.82(2) of the Act and the Victorian provisions so that, to the extent of the inconsistency, those provisions are rendered invalid by s.109 of the Constitution. In response to the submissions of the respondent, it was also said for the appellants that s.82(2)of the Act provides "otherwise" for the purpose of s.79 of the Judiciary Act 1903 (Cth.) and thus, the Victorian provisions were not "picked up" by that section so as to permit an amendment to raise a new cause of action after the expiration of the limitation period, as was sought to be done by the respondents. The third submission was that, for much the same reason on which the appellants relied below in respect of this issue, any claims that the respondent may have had against them for breach of s.11 of the Fair Trading Act in respect of the alleged representations and warranties, had been extinguished on 1 September 1999 when the Fair Trading Act was repealed. I now turn to analyse each of the appellants' three arguments.

Whether Victorian provisions are limited as is claimed

In relation to the appellants' first argument, in my opinion the better view is that, for the reasons given by Ormiston, J.A. in Hatfield[10], s.34 of the Limitation Act (and rule 36.01(6)) operate beyond the limitation periods fixed by Part I of the Limitation Act. Both provisions are in general terms and on their face operate in a broad way. Further, there is nothing in either of the Victorian provisions which manifests an underlying policy which confines its operation as was suggested by Batt, J. in Keller. On the contrary, given their general terms and the mischief that the provisions sought to overcome, it seems fairly plain that it was intended that they be not limited in their operation to the limitations provisions fixed by the Limitation Act. As Ormiston, J.A. has made perfectly clear in Hatfield[11], the provisions are of a procedural character and are intended to abrogate the rule in Weldon v. Neil which itself was of general operation and not confined to any statute. Moreover, in my view, there is nothing in Anglo Irish that can be said to support the observation of Batt, J. in Keller; if anything, Phillips, J.A.[12] appears to have accepted[13] that the rule was not confined in its operation to limitation periods fixed by Part I of the Limitation Act. His Honour noted[14] in the context of discussing the operation of rule 36.01 that there was tacit assumption by the High Court in Bridge Shipping Pty. Ltd. v. Grant Shipping S.A.[15] that_,_ in appropriate circumstances, rule 36.01 might operate in relation to a limitation period other than the one that was fixed by the Limitation Act - in that case, it was the time bar fixed by article III r.6 of the Hague Rules.

Whether there is relevant clash between State and Commonwealth laws

I now turn to the parties' principle submissions on the second issue. The appellants asserted before us, as they did below, that there was inconsistency between the Victorian provisions and s.82(2) of the Act and that, therefore, s.109 of the Constitution applied to preclude the operation of the Victorian provisions to the proposed amendments. The respondents, on the other hand, submitted that no issue of inconsistency arose because the proceeding was based on the Commonwealth Act and that, in the circumstances, s.79 of the Judiciary Act operated to apply the Victorian provisions except as was "otherwise provided" by s.82(2) of the Act. Thus, it was argued for the respondent, the relevant issue was whether the Commonwealth law was irreconcilable with the Victorian provisions rather than whether the Commonwealth law was inconsistent with them for the purposes of s.109 of the Constitution. They argued that there was no such irreconcilability in this case.

The two recognised categories of inconsistency which may arise for the purpose of s.109 of the Constitution are first, where it is impossible to obey both laws (commonly referred to as "direct inconsistency") and the second, where the Commonwealth law intends to "cover the field" that includes the subject matter of the State law ("indirect inconsistency") - see, for example, R. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation[16]. It should be noted, however, that these categories are not exhaustive and the High Court has, on occasions, recognised that the relevant inconsistency may arise even though it is possible to obey both laws - see, for example, Clyde Engineering Co. Ltd. v. Cowburn[17] and Viskauskas v. Niland[18]. Further, in Victoria v. Commonwealth[19] Dixon, J. explained the circumstances when a relevant inconsistency arises in these terms:[20] "[w]hen a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid".[21]

The test for determining whether a Commonwealth statute provides "otherwise" is whether it is irreconcilable with the relevant State provisions- see Northern Territory v. GPAO[22] and Austral Pacific Group Ltd. (In Liq.) v. Airservices Australia[23]. See also the article by the Hon. Justice Sackville entitled The re-emergence of federal jurisdiction in Australia[24]. Thus, the tests relating to inconsistency for the purpose of s.109 of the Constitution and that applicable to determine whether there is relevant irreconcilability are not the same as seems to have been recognised by the majority of the High Court[25] in Austral Pacific. Their Honours said[26]:

"The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act. The criteria to be applied are indicated in Northern Territory v. GPAO (1999) 196 CLR 553 at 587-589 [78]-[83], 606 [135], 650 [254]. The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act `otherwise provides' within the meaning of s 79 of the Judiciary Act. GPAO shows that the question is not answered by the application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase `covering the field'."

It may be that, as Ormiston, J.A. has suggested in Hatfield[27], for the purposes of determining if there is a fatal clash between the State and Commonwealth provisions, one starts with the question whether there is an "inconsistency" between them for the purpose of s.109 of the Constitution. As his Honour pointed out[28], if the State legislation can be characterised as a surrogate and operating law of the Commonwealth for the purposes of s.79 of the Judiciary Act, there may still remain the question of inconsistency between the two relevant laws for the purposes of s.109 of the Constitution. Nevertheless, for the purpose of this case, it is probably immaterial from a practical point of view whether one begins by seeking to determine if the Commonwealth legislation "otherwise provides" or by asking if the Commonwealth law "covers the field". Ordinarily, if a matter were to be examined in that order and it was concluded that the Commonwealth law did provide "otherwise" that would be the end of the matter and the State law would be treated as not operable for relevant purposes. There would be no point then in examining also whether the Commonwealth legislation covers the field with which the State provisions are concerned.

Be that as it may, it is not necessary to determine here the question in which order these issues are to be examined because, for the reasons given below, I am of the view that there is no relevant inconsistency or irreconcilability between s.82(2) of the Act and the Victorian provisions. In the present case, it seems plain enough that, as the respondent submitted, when the court below was considering the respondent's application to amend its statement of claim, it was exercising federal jurisdiction pursuant to s.39(2) of the Judiciary Act given that the respondent's claim in the proceeding was brought under the Trade Practices Act - see Austral Pacific[29]. Consequently, s.79 of the Judiciary Act operated to apply the Victorian procedural provisions (as surrogate laws of the Commonwealth) to the disposition of the respondent's application and the only question is whether s.82(2) of the Act provided "otherwise" - see Austral Pacific[30]. For the reasons I give below, s.82(2) of the Act only bars the relevant remedy but does not extinguish the right. Hence, it leaves "room" for the operation of the Victorian provisions[31], so that there is no relevant irreconcilability for the purpose of s.79 of the Judiciary Act.

Similarly, given the operation of s.82(2) of the Act which I describe below, the two sets of laws operate in different "fields", or, put another way, they deal with different matters: s.82(2) fixes the limitation period for a claim that is brought under s.82(1), whereas the Victorian provisions deal with a materially different matter, namely, the removal of what was previously considered to be an inhibition on the discretion of the court to allow amendment to a pleading (which would ordinarily date back to the date of the document[32]) and which may have the effect of allowing a new cause of action to be prosecuted in the context of an existing proceeding, notwithstanding the expiration of the relevant limitation period. As Ormiston, J.A. has explained in Hatfield[33], the Victorian provisions are permissive only and rule 36.01(6) for example, was intended to have only a procedural effect designed to ensure the proper and fair consideration of applications to amend pleadings where, if the amending claim had been independently brought out of time, it would have been rejected as statute barred. In order to secure an exercise of discretion in favour of the amendment under the Victorian provisions, said his Honour,[34] the new claim must arise out of the same or substantially similar facts already pleaded. Importantly, as Ormiston J.A. pointed out[35], the power to amend given by the Victorian provisions is procedural and thus, is "picked up" by s.79 of the Judiciary Act (although as his Honour recognised, the other powers or qualifications of limitation periods must now be treated as substantive and therefore not procedural in accordance with John Pfeiffer Pty. Ltd. v. Rogerson[36]). Thus, said his Honour[37], State provisions relating to procedure , such as amendment of proceedings, are prima facie not to be assumed to be covered by the provisions of the Commonwealth Statute dealing with limitations. Consequently, since the two sets of laws operate in different areas, both can be obeyed and, therefore, there is no inconsistency between them.

The conclusion that the Victorian provisions are not relevantly inconsistent or irreconcilable with s.82(2) of the Act, means that virtually identical procedural laws apply in respect of the claim which the respondent seeks to pursue irrespective of whether the proceeding was brought in the Supreme Court or the Federal Court, given that O.13 R.2 of the Federal Court Rules is relevantly similar to r.36.01(6)[38]. As Ormiston, J.A. pointed out in Hatfield[39] s.79 of the Judiciary Act, where it operates, allows the proceeding based on Commonwealth legislation to be decided in the same way as if it had been brought in a local court untrammelled by concepts of Federal jurisdiction.

I now turn to explain why, in my view, s.82(2) operates only to bar the remedy and not to extinguish the right. First, the sub-section does not say that the right created by s.82(1) of the Act will be extinguished at the end of the applicable limitation period. If Parliament intended to achieve that result, it would have used direct language to that effect as, it seems to have done, for instance, in s.34 of the Civil Aviation (Carriers' Liability) Act. To my mind, the language of the sub-section is more consistent with it barring a cause of action rather than extinguishing the right. Next, as the learned primary judge pointed out, the fact that s.82(2) stands apart from the cause of action that is created by s.81(1) is a strong indication that Parliament did not intend that the time limit that is prescribed by the sub-section should constitute an ingredient of the cause of action. That this is the case has been recognised in decisions which deal with other limitation provisions of the Act which are similar to s.82(2), such as ss.74J and 87(1CA) (where the prescribed limitation period also stands apart from the causes of action to which they refer). Thus, for example, in Carey-Hazell v. Getz Bros. & Co. (Aust.) Pty. Ltd.[40] French, J. recognised that s.74J of the Act did not make compliance with the time limit prescribed by it an element of the relevant cause of action, nor did it extinguish it; rather, the provision only operated to bar the remedy. In my view, the learned primary judge was correct when he said that this decision supports the conclusion that s.82(2) does not operate to extinguish, at the end of the relevant period, a claim which is based on a cause of action created by s.82(1).

Further, there are other decisions to like effect and which support the conclusion that the two sets of laws do not relevantly clash. For instance, the interaction between a rule similar to r.36.01(6) and s.74J of the Act was considered in White v. Eurocycle Pty. Ltd.[41]. In that case, the Full Court of the Supreme Court of South Australia[42] held that, notwithstanding that the proposed amendment to the pleadings raised a new cause of action that was outside the three year limitation period the judge below was correct in holding that rule 53.03(c) of the Rules of Court[43] was not relevantly inconsistent with s.74J of the Act and that the latter provision did not deprive the judge of the discretion to permit the amendment. Duggan, J., with whom the other members of the court agreed, also accepted that the time limitation in s.74J did not extinguish the relevant cause of action[44]. In his Honour's view[45], s.74J of the Act was addressed to the remedy and not to the right of action and thus, he rejected the argument that there was inconsistency between the Act and the above rule.[46]

Australia and New Zealand Banking Group Ltd. v. Larcos[47] also supports my above conclusion as to the relevant operation of s.82(2) of the Act. In that case, the bank brought proceedings to recover property, the subject of a security, and, in 1987, the defendant sought to amend his cross-claim so as to allege for the first time misleading or deceptive conduct on the part of the bank in 1983. The bank argued, inter alia, that the application for leave to amend should be refused because a claim for relief under s.52 of the Trade Practices Act was sought to be pursued after the expiration of the applicable three year limitation period prescribed by s.82(2). It argued that the rule of court, which is similar to r.36.01(6), was invalid to the extent that it was inconsistent with the limitation in s.82(2) of the Act. Rogers, J., however, noted[48]:

"...whatever the practical effect may be flowing from the accepted consequences of amending a pleading, Pt 20, r4, did no more than bring about a change of practice. The subject matter of the rule was the exercise of discretion in granting amendments. It did not seek to, as indeed it could not, alter Commonwealth legislation providing for limitation of actions."

Referring specifically to the purported inconsistency between the Act and the relevant rule his Honour said[49]:

"The rule accepts fully the dictate of the Commonwealth legislation that proceedings should be commenced within three years from accrual of the cause of action. The rule deals merely with a procedural matter which, as a matter of law, then has an impact on what is to be taken as the date of commencement of proceedings. The two regulatory provisions operate in different fields and are therefore not inconsistent. "[50]

The appellants also referred to a number of cases where it has been held that certain limitation provisions in Commonwealth statutes, including s.82(2), were irreconcilable or were inconsistent with State provisions, some of which recognise the court's discretion effectively to revive, in the context of an existing proceeding, a cause of action which is statute barred, while others empower the court to extend the limitation period. Thus, for example, reference was made to Stumann v. Spansteel Engineering Pty. Ltd.[51]; Teys Bros. (Beenleigh) Pty. Ltd. v. ANL Cargo Operations Pty. Ltd[52] and Timeny v. British Airways PLC.[53]. In those cases the courts considered that provisions similar to the Victorian provisions could not be invoked effectively to revive the claims in respect of which the applicable limitation period had expired. But in those cases, it was concluded that, as a matter of proper construction of the relevant statute, the limitation period extinguished the claim at the end of it. Moreover, in Timeny, as in Vink v. Schering Pty. Ltd. (No.1)[54], the relevant State provisions[55] empowered the court in certain circumstances to extend the period of limitations. It is not surprising, therefore, that in the first case, King, C.J. considered[56] that such a provision conflicted with Art.29 of the Warsaw Convention as to International Carriage by Air 1929[57] which provided that the right to damages "shall be extinguished if an action is not brought within two years" and in the second case, Von Doussa, J. concluded[58] that s.82(2) of the Act provided "otherwise" for the purposes of s.79 of the Judiciary Act. Similarly, in Deputy Commissioner of Taxation v. Moorebank Pty. Ltd.[59], the High Court considered that there was a relevant clash between the provisions of the State Limitations Act and the express terms of s.29 of the Income Tax Assessment Act 1936 (Cth.) which determined that the Commissioner may recover unpaid tax. Their Honours considered[60] that the Commonwealth Act "covered the field". The court said that, as the general scheme of the Assessment Act provisions provided for the collection and recovery of the tax, there was no room for the State limitation provisions to be imported into them.

The appellants also pointed to other decisions where it was held that there was relevant inconsistency between limitation provisions such as s.82(2) and s.87(1CA) of the Act on the one hand and provisions akin to the Victorian provisions on the other. See, for example, Jekos Holdings Pty. Ltd. v. Australian Horticultural Finance Pty. Ltd.[61] and Queensland Industry Development Corporation v. Australian and New Zealand Banking Corporation Group Ltd.[62]. On the other hand, a subsequent decision of the Supreme Court of Queensland, in Henry v. Calamvale Estates Pty. Ltd.[63], reached the opposite conclusion. In my opinion, however, the first-mentioned authorities should not be followed because, for the reasons that I have given, the better view is that there is no relevant inconsistency or irreconcilability between the two sets of laws.

To reiterate, I consider that the Victorian provisions are not inconsistent or irreconcilable with s.82(2) of the Act. Thus, s.79 of the Judiciary Act operated in this case to apply the Victorian (procedural) provisions to the judicial consideration of the respondent's application to amend its statement of claim, entitling the primary judge to consider whether, in the exercise of his discretion, the amendment sought should be allowed. It is true that, as his Honour said, the proposed amendment seeks to plead a new cause of action. But the new claim is not based on facts which bear little relationship to the existing cause of action. On the contrary, they are closely related to, and are intertwined with, the facts which relate to the present claim. Even absent the amendment, it seems to me, it is likely that the court would have before it evidence of the pre-contractual circumstances in which the agreements in question were made. It is in that context, so the respondent says, that the alleged misrepresentations were made. Moreover, it is not easy to see how the appellants would be prejudiced by the amendment. In the circumstances, therefore, I see no error in his Honour's exercise of discretion in favour of allowing the amendment sought.

Claims under the Fair Trading Act

As to the appellants' third argument, namely, that the respondent had lost any right it may have had to claim against them under the Fair Trading Act by virtue of its abolition in 1999 it is plain that when the alleged representations and warranties were made, s.11 of the Fair Trading Act was in operation and, therefore, the respondent then had a potential claim against the appellants under that Act. As I have already noted, the appellants' attack on the respondent's right to pursue its proposed claim under the Fair Trading Act was based on the contention that such a right was abolished by the 1999 Act and that the only relevant saving provision - s.14(2)(e) of the Interpretation of Legislation Act - did not operate because the respondent did not have an "accrued right" for the purposes of that Act as at 1 September 1999.

In my view, however, this argument should be rejected. For the reasons that I

have given earlier, in respect of s.82(2) of the Act, s.37(2) of the Fair Trading Act operates only to bar, but not to extinguish, the respondent's relevant rights under it. Consequently, the respondent's relevant rights were extant when the Fair Trading Act was abolished so that they were preserved as "an accrued right" for the purposes of s.14(2)(e) of the Interpretations Act. It follows that, in my view, the learned primary judge had the discretion under the Victorian provisions to permit the respondent to amend his statement of claim to allege that the representations and warranties in question constituted a breach of the Fair Trading Act.

For these reasons, I am of the view that the appeal must fail.

I have had the advantage of reading in draft the judgment of Chernov JA. I agree in his conclusion that the judge had a discretion to permit the respondent to amend its statement of claim. I do so for the reasons given by Chernov J.A. I too agree that the appeal must be dismissed.

[2] As his Honour noted, the 1985 Act was repealed in 1999 but it is apparent that the matter had to be considered in the context of the 1985 Act.

[3] Although s.82(2) was amended by the Trade Practices Amendment Act No.1 (2001) Cth. to extend the limitation period to six years, the amendment applied only to conduct engaged in on or after the commencement of the amendment. Consequently, the relevant limitation period in respect of the respondent's proposed claim is three years. A like position applies to the proposed claim under the Fair Trading Act.

[4] Both provisions are, from time to time, referred to hereafter as "the Victorian provisions".

[6] Agtrack (N.T.) Pty. Ltd. v. Hatfield [2003] VSCA 6.

[7] This aspect of his Honour's decision is not challenged by the appellants.

[12] With whom Brooking and Charles, JJ.A. agreed.

[17] [1926] HCA 6; (1926) 37 C.L.R. 466 at 489-490 per Isaacs, J.

[18] [1983] HCA 15; (1983) 153 C.L.R. 280 at 291-292 per Gibbs, C.J., Mason, Murphy, Wilson and Brennan, JJ.

[21] His Honour's dicta was recently endorsed by the High Court in Telstra Corporation Ltd. v. Worthing [1999] HCA 12; (1999) 197 C.L.R. 61 at 76 per Gleeson, C.J., Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan, JJ.

[22] (1998) 196 C.L.R. 553 at 587-589 per Gleeson, C.J. and Gummow, J., at 606 per Gaudron, J. and at 650 per Hayne, J.

[23] [2000] HCA 39; (2000) 203 CLR 136 at 144 per Gleeson, C.J., Gummow and Hayne, JJ.

[24] (2000) 21 Aust. Bar Review 133 at 144-5.

[25] Gleeson, C.J., Gummow and Hayne, JJ.

[29] At 142 per Gleeson, C.J., Gummow and Hayne, JJ. and at 153-154 per McHugh, J.

[30] At 142 per Gleeson, C.J., Gummow and Hayne, JJ. and at 158 per McHugh, J.

[31] See Northern Territory v. GPAO at 589 per Gleeson, C.J. and Gummow, J.

[32] See, for example, Ormiston, J.A. in Hatfield at [39]-[44]; Anglo Irish Beef Processors International v. Federated Stevedores Geelong [1997] 2 V.R. 676 at 680 per Phillips, J.A. with whom Brooking and Charles, JJ.A. agreed; Australian and New Zealand Banking Group Ltd. v. Larcos (1987) 13 N.S.W.L.R. 286 at 289, 295;. Proctor v. Jetway Aviation Pty. Ltd. [1984] 1 N.S.W.L.R. 166 at 176, 183; Baldry v. Jackson [1976] 2 N.S.W.L.R. 415 at 419.

[38] The existence of such a discretion in the Federal Court has been put beyond doubt by the introduction in 1999 into the Federal Court of Australia Act 1976 (Cth.) of s.59(2B) which has the effect, similarly to s.34 of the Limitation Act, of confirming the efficacy of the above Federal Court rule. See Rodgers v. Commissioner of Taxation (1998) 88 F.C.R. 61 at 68 per Wilcox, Tamberlin and Emmett, JJ.; Murran Investments Pty. Ltd. v. Aromatic Beauty Products Pty. Ltd. [2000] FCA 1732 at [58] and [60].

[42] King, C.J., Duggan and Nyland, JJ.

[43] The South Australian rule is similar to r.36.01(6).

[44] On this issue, his Honour followed the decision of Rogers, J. in Australia and New Zealand Banking Group Ltd. v. Larcos to which further reference is made below. Although his Honour's characterisation (at 467) of the limitation provision as procedural is at odds with what the High Court said on this issue in John Pfeiffer - see [15] above - this aspect of his Honour's decision, in my view, does not affect the correctness of his conclusion that s.74J of the Act does not extinguish, but only bars, the relevant right.

[46] The reasoning in White was followed in The Fibreglass Pool Works (Manufacturing) Pty. Ltd. v. ICI Australia Pty. Ltd. [1998] 1 Qd.R. 149 at 154-155 per Moynihan, J. See also Harris v. Western Australian Exim Corporation (1994) 56 F.C.R. 1 at 8 per Hill, J. and Nescor Industries Group Pty. Ltd. v. MIBA Pty. Ltd. (1997) 150 A.L.R. 633 at 646.

[50] The correctness of this analysis was doubted by Bainton, J. in obiter in Glebe Administration Board v National Australia Bank; Glebe Administration Board v Kingsley-Strack (Unreported, Bainton J, Supreme Court of NSW, 4 March 1996) at [30]-[31]. On the other hand, a like conclusion to that in Larcos was reached by Chesterman, J. in MAM Mortgages Ltd. (in liq) v. Cameron Bros [2000] 2 Qd.R. 515 at 519.

[55] Section 48(1) of the Limitation of Actions Act 1936 (S.A.) in the case of Timeny, and s.45 of that Act in the case of Vink.

[57] The Convention was incorporated into Australia domestic law by s.11 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth.).

[61] [1994] 2 Qd.R. 515 per Byrne, J.

[62] Supreme Court of Queensland, unreported, 16 September 1994 per Kiefel, J.

[63] Unreported, Supreme Court of Queensland, Muir, J. 22 October 1997.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties

Cases Cited (2)