The Three Rivers District Council & Others v Bank of England

REASONS FOR JUDGMENT By notice of motion dated 12 May 1998 the applicants, Mr and Mrs Chapman, have applied to join Binalong Pty. Ltd. ACN 007 620 439 (Receivers and Managers Appointed) (In Liquidation) ("Binalong") as a third applicant in the proceedings. The proposed joinder is opposed by the respondents. Mr and Mrs Chapman issued their originating application in this matter on 23 May 1997. They named the first three respondents (who I shall refer to respectively as ("Luminis", "Dr Fergie" and "Professor Saunders") as the respondents. On 11 December 1997 Mr and Mrs Chapman amended their application so as to add the Minister for Aboriginal and Torres Strait Islander Affairs ("the Minister") and the Commonwealth of Australia ("the Commonwealth") as the fourth and fifth respondents. The amended statement of claim alleges that at material times Mr and Mrs Chapman were directors, and together owned 50 per cent of the shareholding, of Binalong. Binalong went into liquidation on 8 August 1994. Binalong was at all material times the registered proprietor of land on Hindmarsh Island, South Australia on which it had established and was developing in stages a marina project. Under the relevant planning approval, Binalong can only proceed with stages 2 and following of the marina project if a bridge is built across the River Murray to Hindmarsh Island. It is alleged that by a Deed of Agreement made on 31 March 1993 the State Minister for Transport Development (now the Minister for Transport), the District Council of Port Elliott and Goolwa and Binalong, the Minister for Transport agreed to procure the construction of the bridge. On 11 May 1994 work to build the bridge commenced. On 12 May 1994 the Minister made an emergency declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Heritage Act") to stop the construction of the bridge for 30 days. On 23 May 1994 Professor Saunders was retained to report pursuant to ss 10(1)(c) and 10(4) of the Heritage Act in respect of an application that had been made under s 10 of the Act which claimed that the construction of the bridge would injure or desecrate Aboriginal archaeological sites on either side of the River Murray and on Hindmarsh Island. On 11 June 1994 the Minister extended the emergency declaration for a further 30 days pursuant to s 9(3) of the Heritage Act. On or about 17 June 1994 the Aboriginal Legal Rights Movement ("the ALRM"), acting on behalf of the Lower Murray Aboriginal Heritage Committee which had applied to the Minister for a declaration under s 10 of the Heritage Act, appointed Luminis, through its agent or contractor, Dr Fergie, to provide anthropological services in connection with the s 10 application. It is alleged that on 4 July 1994 Dr Fergie prepared a report for the ALRM which had three appendices, two of which were secret and became known as "the secret envelopes". The ALRM submitted Dr Fergie's report to Professor Saunders as part of a representation made pursuant to s 10(3)(a)(ii) of the Heritage Act. On 8 July 1994 Professor Saunders forwarded a report to the Minister along with Dr Fergie's report, but excluding the secret envelopes. On or about 8 July 1994 it is alleged that the Minister decided to make a declaration under s 10 of the Heritage Act which had the effect of stopping the construction of the bridge for 25 years. The decision of the Minister was challenged by the applicants by application for review made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On 15 February 1995 O'Loughlin J quashed the s 10 declaration and Professor Saunders' report. An appeal by the Minister and Professor Saunders to the Full Court of Federal Court was dismissed on 7 December 1995. Arising out of happenings associated with these events Mr and Mrs Chapman allege a number of causes of action against each of the respondents. It is pleaded that Luminis was guilty of misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) ("the TP Act"), that Dr Fergie was involved in that contravention within the meaning of s 75B of the TP Act, and in the alternative that Dr Fergie engaged in misleading or deceptive conduct within the meaning of s 56 of the Fair Trading Act 1987 (SA) in respect of the preparation and content of her report. Further, it is alleged that Luminis and Dr Fergie were negligent in that they and each of them failed to fulfil duties of care owed to Binalong to make Dr Fergie's report an accurate one containing opinions expressed on reasonable grounds, and to ensure that sufficient tests and all proper investigations were done, and that reliable and sufficient information was obtained. It is alleged that Professor Saunders engaged in conduct that was misleading or deceptive contrary to s 52 of the TP Act (as it extended to her conduct by virtue of s 6(2)(a)(iv) of the TP Act) or s 56 of the Fair Trading Act (SA) or s 11 of the Fair Trading Act 1985 (Vic). It is also alleged against Professor Saunders that she was negligent in that she failed to fulfil a duty of care owed by her to Binalong in the course of carrying out her function under s 10 of the Heritage Act. Further, it is alleged that Professor Saunders acted in breach of the statutory duties required of her in carrying out her functions under s 10 of the Heritage Act. It is alleged that the Minister was negligent and in breach of the statutory duty owed to Binalong in the performance of his functions under s 10 of the Heritage Act, that he intentionally interfered with the legal rights of Binalong, and that he unlawfully interfered with the trade or business of Binalong. It is pleaded against the Commonwealth that the declarations made under ss 9 and 10 of the Heritage Act resulted in an acquisition of property from Binalong otherwise than on just terms within the meaning of paragraph 51(xxxi) of the Constitution. Particulars are pleaded of a very substantial monetary loss suffered by Binalong arising from the fact that the bridge was not constructed, and that the development of the marina project was halted. Against this brief summary of allegations it is necessary to refer specifically to paragraphs 6, 7, 7A and 7B of the amended statement of claim to explain why the proceedings were instituted by Mr and Mrs Chapman against the present respondents. Those paragraphs read: "6. (a) By a Deed of Assignment made the 22nd May 1997, Binalong assigned to the Applicants the causes of action it has against the first, second and third Respondents and each of them arising in connection with or relating in some way to the proposed bridge mentioned below, including the right to any past or future loss arising in respect of such causes of action, on certain terms and conditions. (b) The Applicants will refer to the terms of the Deed of Assignment at the trial hereof. (c) The Applicants as such assignees therefore seek to enforce against the first, second and third Respondents the respective causes of action of Binalong set out below, and recover from the first, second and third Respondents in respect of the same. 7. Notice of such assignment was duly given to each of the first, second and third Respondents on 22nd May 1997. 7A. (a) By a Deed of Assignment made the 25th September 1997, Binalong assigned to Applicants the causes of action it has against the fourth and fifth Respondents and each of them arising in connection with or relating in some way to the proposed bridge mentioned below, including the right to any past or future loss arising in respect of such causes of action, on certain terms and conditions. (b) The Applicants will refer to the terms of the Deed of Assignment at the trial hereof. (c) The Applicants as such assignees therefore seek to enforce against the fourth and fifth Respondents the respective causes of action of Binalong set out below, and recover from the fourth and fifth Respondents in respect of the same. 7B. Notice of such assignment was duly given to each of the fourth and fifth Respondents on 30th September 1997." On 19 March 1998 application was made on behalf of Professor Saunders, the Minister and the Commonwealth, for orders that the issues raised by paragraphs 6, 7, 7A and 7B, and by corresponding provisions of the defence, be heard and determined separately from other questions raised by the pleadings. The order was sought pursuant to O 29 of the Federal Court Rules. The corresponding provisions of the defence pleaded that there was not a valid and effective assignment of causes of action as alleged in paragraphs 6 and 7A of the amended statement of claim, and that in the absence of a valid and effective assignment of any of Binalong's rights to the applicants, the applicants had no standing to bring or maintain the action against Professor Saunders, the Minister or the Commonwealth. The defence admitted that the respondents had received notice of a purported assignment as alleged in paragraphs 7 and 7B of the amended statement of claim, but denied that Binalong had assigned all its legal right title and interest in any of the causes of action pleaded against them in the proceedings. In their defence, Luminis and Dr Fergie have also denied the validity of the alleged assignments. In correspondence, Mr and Mrs Chapman sought particulars of why it was alleged that the assignments were not valid and effective. Solicitors for Professor Saunders, the Minister and the Commonwealth by letter said that their defence raised an issue of law: "That is, whether or not the documents which you plead as the Assignments do in law constitute Assignments. It is an argument about the construction of the documents. Accordingly no facts, matters or circumstances are relied upon by the respondents which need to be particularised - they rely upon the construction of the documents themselves." Not surprisingly, the solicitors for Mr and Mrs Chapman replied saying that the particulars given did not specify why it was said that, on the construction of the assignments, they did not in law amount to valid and effective assignments. The solicitors for Mr and Mrs Chapman added in their reply: "May we also say that the intention of the documents (the assignments) is to effect an absolute assignment of the relevant causes of action, and if it is said that there are some defect (sic) in the wording of the documents which prevent them from achieving that, we believe that both our clients, and the liquidator, would be well prepared to amend them to rectify any such defects, so as to cure the problem complained of." This correspondence was brought to the attention of the Court. At a directions hearing the Court then requested the solicitors for Professor Saunders, the Minister and the Commonwealth, to file more informative particulars of paragraphs 6 and 7A of the defence. Those particulars were filed on 8 May 1998, and alleged that the Deeds of Assignment relied on by Mr and Mrs Chapman did not constitute a valid assignment of a choses in action because first, certain clauses upon their proper construction retained in the assignor certain rights in respect of the choses in action and their enforcement, and secondly, because the choses in action purported to be assigned, insofar as they were choses in action in relation to causes of action pursuant to s 82 of the TP Act, s 84 of the Fair Trading Act (SA) and s 37 of the Fair Trading Act (Vic), were incapable of being assigned at law or in equity. On 12 May 1998 Mr and Mrs Chapman filed a notice of motion seeking orders giving leave to join Binalong as an applicant pursuant to FCR O 6, r 2, and for consequential leave to further amend the statement of claim to add a new paragraph as follows: "7C. In the event and to the extent the assignments referred to in paragraphs 6 and/or 7A are invalid and/or ineffective, or in the alternative incomplete in that such assignments are effective only to transfer an equitable interest or some other partial interest only in any of the respective causes of action or rights mentioned in paragraphs 6 or 7A, Binalong seeks to enforce such causes of action and/or rights against the relevant Respondents and recover from them in respect of the same." In support of this notice of motion, the Court was informed by counsel for the applicants, and by counsel for the liquidator that agreement has been reached between Mr and Mrs Chapman and the liquidator of Binalong that, subject to Mr and Mrs Chapman and a company Kebaro Pty Ltd entering into a Deed (the proposed terms of which have been made known to the parties and the Court), and further subject to Kebaro Pty Ltd granting the security referred to in the Deed to protect the liquidator against costs, expenses and liabilities for which the liquidator may become liable as a result of the company being joined as a party to the proceedings, the liquidator authorises the first and second applicants at their own expense and risk as to costs, to use the name Binalong as a joint applicant in the action. Mr Quick QC, Senior counsel for Professor Saunders, the Minister and the Commonwealth, argues that the joinder of Binalong should not be permitted on two grounds stated in the following terms in the written outline of submissions: "(a) The real additional applicant is not the Company. It is the first and second applicants who wish to sue in the name of the Company. In the circumstances of the purported assignment of the rights of the Company to the first and second applicants, the Company should not be joined. (b) The Company should not be joined as a respondent in respect of causes of action pursuant to the Trade Practices Act 1974 as such proceedings are hopeless having regard to the alleged causes of action and the provisions of s.82(2) of the Act." The submissions made by Mr Quick were also adopted by counsel for Luminis and Dr Fergie. Counsel for Mr and Mrs Chapman contends that the Deeds of Assignment relied upon effect absolute assignments of legal choses of action, of which notice has been given to the respondents. It is contended that the assignments are effective in law under s 15 of the Law of Property Act 1936 (SA). If the Deeds of Assignment are valid and effective as assignments under s 15, Binalong is not a necessary party to the proceedings. Mr and Mrs Chapman, as the assignees at law, are the proper parties to proceedings to enforce the assigned causes of action: Halsburys Laws of England, 4th ed. vol. 6, para 13. Mr and Mrs Chapman, however, seek to join Binalong to provide for the contingency that the Court holds there is merit in the respondents' contention that the Deeds of Assignment do not effect assignments under s 15, for one or more of the reasons argued by the respondents. Mr and Mrs Chapman contend that if the Deeds of Assignment are not effective as assignments under s 15 they are nevertheless effective as equitable assignments of the causes of action which Binalong has against the respondents, and that Mr and Mrs Chapman are now the persons beneficially entitled to the benefit of the causes of action. Therefore, as an alternative position, they seek to constitute the proceedings in a manner appropriate for the enforcement by them as equitable assignees of the choses of action. As equitable assignees they are entitled to bring proceedings to enforce the choses of action, but subject to the procedural requirement that the assignor be joined as an additional party to the proceedings. The courts have imposed the procedural requirement that the assignor be joined so that the assignor becomes bound by the decision, and the parties sued protected: The Three Rivers District Council & Others v Bank of England [1995] 4 All ER 312 at 331 per Gibson LJ, McIntyre v Gye & Another (1994) 122 ALR 289 at 295 and Stein v Blake [1996] 1 AC 243 at 259. The contention that the Deeds of Assignment are not valid and effective as a matter of law, in my opinion, makes it appropriate for Mr and Mrs Chapman to seek to join Binalong as a party to the proceedings, to provide for the contingency that there is merit in the respondents' contention. Within the meaning of FCR O 6, r 8, Binalong is in these circumstances a person who ought to be joined as a party and, moreover, is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon. In my opinion the order sought by the applicants should be made under this rule. The respondents wish to contend in due course that the assignment of the benefit of causes of action arising under the remedial sections of the TP Act and the Fair Trading Acts in respect of the alleged misleading and deceptive conduct are incapable of assignment either in law or in equity. Even if that contention is correct, it is not suggested that the other causes of action pleaded may not be the subject of an assignment in law or in equity. In respect of those other causes of action, Mr and Mrs Chapman are entitled to have Binalong joined as a party to provide for the event that the Court holds that the Deeds of Assignment are valid and effective to assign those causes of action in equity, though not in law. Once it is decided that Binalong is a person who ought to be joined as a party, the next question is whether Binalong has consented to be joined. If so, joinder as an applicant is the proper course. If not, joinder would be ordered as a respondent. In the present case Binalong has consented to be joined as an applicant, subject to the execution of a deed to provide an indemnity and security to the liquidator against liability arising from that joinder. The execution of that deed is dependent only upon the Court making an order otherwise permitting the joinder. The respondents contended the Court should refuse to allow the joinder of Binalong as Binalong would not be the real applicant. In my opinion this argument is without merit. It runs counter to the long line of authority which recognises that where there is an equitable assignment, the assignor should be joined as a party, even though the equitable assignee asserts ownership of the claim and, in practical terms, is the party seeking to enforce the cause of action. The position is summarised by Gibson LJ in Three Rivers District Council v Bank of England at 331 in the following passage: "These authorities, in my judgment, clearly establish that the equitable assignee can be regarded realistically as the person entitled to the assigned chose who is able to sue the debtor on that chose, but that save in special circumstances the court will require him to join the assignor as a procedural requirement so that the assignor might be bound and the debtor protected. If, unusually, the assignor sues, he will not be allowed to maintain the action in the absence of the assignee. That it is the assignee who normally sues, asserting the claim as his own, with the assignor as a non-claiming party can be seen from Bullen and Leake and Jacobs Precedents on Pleadings (13th ed, 1990) pp 60-62 (see also 12 Atkins' Court Forms (2nd edn) (1990 reissue) pp 383-384)." The respondents argued that Mr and Mrs Chapman should not be permitted to use the company's name as an applicant to enforce claims which remain the claims of the company. Mr Quick referred the Court to Aliprandi v Griffith Vintners Pty Ltd (In Liquidation) and Another (1991) 9 ACLC 1,530 and Russell & Another v Westpac Banking Corporation and Others (1994) 13 ACSR 5. In these cases, notwithstanding the general rule, referred to as the rule in Foss v Harbottle (1843) 2 Hare 461, that for a wrong done to a company, the company is the proper plaintiff in an action to seek redress, people who were shareholders and directors, or a guarantor, of a company in liquidation, were authorised to sue in the name of the company in respect of wrongs allegedly done to it. The respondents contend that in accordance with principles laid down in those cases pursuant to which use of the company's name was permitted, this Court should not give leave to Mr and Mrs Chapman to use Binalong's name. In my opinion the cases referred to are distinguishable, and the principles laid down in them have no application to the circumstances of this case. The cases concerned situations where the liquidator was not prepared to grant consent to the use of the company's name. It was for that reason that the Court was approached to give authority for the use of the company's name. In Russell v Westpac Banking Corporation, the liquidators had indicated that they did not intend to cause the companies to institute or join in action against the defendant on the cause of action pleaded by the parties seeking authorisation (see at 6). In Aliprandi v Griffiths Vintners Pty Ltd (in liq) the liquidator was prepared to consent to any course that would enable the claim to be pursued provided he was not exposed to personal liability for costs in relation to the proceedings. The liquidator was not satisfied with the level of security offered to support an indemnity to him against these costs, and, for this reason his consent was not forthcoming. In this case, however, Mr and Mrs Chapman and the liquidator have reached an agreement between themselves, and the liquidator will grant his consent to Binalong being joined as a party to the proceedings. If, on the present application, the Court grants leave to join Binalong, the deed under which the liquidator will grant that consent will be executed. The joinder will then occur pursuant to that consent. The company will be a party, and claims in respect of wrongs done to the company which have not been validly assigned at law to the applicants, will be prosecuted in the name of Binalong. The terms of the agreement between the liquidator and Mr and Mrs Chapman are not the business of the respondents, and it is not open to the respondents to object to the joinder on the ground that it is a term of the consent that the company's name will be used at the expense and risk of Mr and Mrs Chapman. Mr Quick also referred to the decision of Branson J at first instance in Brookfield & Anor v Davey Products Pty Ltd & Others (1996) 14 ACLC 303. In that case, her Honour, after observing that the company Septic Products Australia Pty Ltd (in liquidation) was a necessary party to the proceedings, said that one course open to the assignee of the company's choses in action would have been for the assignee to "have negotiated an agreement with the liquidator of Septic Products whereby the liquidator authorised the institution of proceedings in the name of Septic Products" (at 305). The need for her Honour to consider whether an order should be made authorising the use of the company's name only arose because such an agreement had not been negotiated. In this case it has been. Next, Mr Quick argued that leave to join Binalong should be refused because Mr and Mrs Chapman were impermissibly approbating and reprobating with respect to the purported assignment. Counsel said that: "At the one time they are saying 'Yes, we rely upon the document (the assignments referred to in paras 6 and 7A of the amended statement of claim) for our right to have standing before this Court. We rely on the assignment for our right to be here. But at the same time we say that the only basis upon which the company can be here is on the basis that the assignment is ineffective'. Now that's a clear breach of the rule that applies to all instruments that one cannot approbate and reprobate…if they say the assignment is valid then there's no need for the company to be here. If they say that the assignment is invalid then they shouldn't be here. The proper way for them to have dealt with the approbation and reprobation principle would have been to have a trial on the preliminary issue of the effect of the assignment and, if they had failed on that, then to apply to substitute the company, but they would then be out of the action." It may be accepted as a general principle of law that where a deed professes to make a general disposition of property for the benefit of a person named in it, that person cannot accept the benefit under the instrument without at the same time conforming to all its provisions: Pitman v Crum Ewing [1911] AC 217 at 233 and Lissenden v C.A.V. Bosch, Limited [1940] AC 412 at 417-418. However, that is not the present situation. Mr and Mrs Chapman plead that pursuant to the assignments referred to in paras 6 and 7A of the amended statement of claim, they are entitled to enforce all the causes of action pleaded by them. That is the position which they adopt in relation to the assignments. All they seek to do by joining Binalong, and adding the proposed paragraph 7C to the further amended statement of claim, is to provide for the contingency that a case alleged against them by the respondents (which they deny) has substance. It is entirely proper for the applicants to seek to plead claims in the alternative to cover a contingency of this kind. It is in accordance with FCR O 6, r2(a) and FCR O 6, r 8(1)(b), and the modern approach to litigation that joinder in these circumstances should occur so that the matters in dispute relating to the same subject matter can be dealt with by the Court at the one time: see Qantas Airways Limited v AF Liddle Pty Ltd [1981] 2 NSWLR 34 and News Limited & Others v Australian Rugby Football League Limited & Others (1996) 139 ALR 193 at 297. It is a well recognised rule in pleadings that a party is permitted to plead inconsistent and alternative versions of a claim: Cairns "Australian Civil Procedure", 4th ed., at 181. This rule extends to joinder of plaintiffs in the alternative where there is doubt as to which of two or more persons is entitled to the relief claimed: Jacob and Goldrein "Pleadings, Principles and Practice" (1990) at 246. The first of the grounds on which joinder is opposed, namely that Binalong is not the real applicant, therefore fails. The second ground of opposition relates only to the joinder of the causes of action pleaded under the TP Act. It is contended that these causes of action are subject to a strict three year time limit; that the causes of action accrued not later than 1994 and were therefore statute barred when application was made to join Binalong on 12 May 1998; and that pursuant to FCR O 6, r 11(3) the addition of Binalong would not relate back to the date of commencement of the proceedings: see Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 718. It is contended that as action by Binalong to enforce the alleged causes of action under the TP Act was bound to fail, Binalong should not be joined as a party. I do not accept this submission for a number of reasons. First, the application seeks to join Binalong so that its name may be used to enforce causes of action in addition to those alleged to arise under the TP Act. Even if the causes of action under the TP Act are statute barred, that provides no reason for not joining Binalong in respect of the other causes of action. Secondly, it is not plain beyond argument that the causes of action accrued not later than the end of 1994. The general rule is that a person should not be denied access to the customary tribunal that deals with actions of the kind he brings unless his lack of action is clearly demonstrated: General Steel Industries Inc. v Commissioner of Railways (NSW) & Others (1964) 112 CLR 125 at 129. For a court to disallow joinder of a party for lack of merit in the proposed claim that claim must, according to tests approved in General Steel, be "so obviously untenable that it cannot possibly succeed", or "so manifestly faulty that it does not admit of argument". Section 82 of the TP Act provides that a person who suffers loss or damage by the conduct of another person that was done in contravention of a provision of Part IV or Part V may recover the amount of the loss or damage by action against that other person. Section 82(2) provides that such an action may be commenced at any time within three years after the date on which the cause of action accrued. In the context of the present case, a cause of action would accrue under s 82 upon the happening of a contravention of s 52 (being a provision within Part V), and upon Binalong suffering loss or damage. The cause of action is not complete, and does not accrue until loss or damage has been sustained. Loss or damage may be sustained at different times, and the question of when loss or damage is sustained is a question of fact: Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514 and Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35. The amended statement of claim alleges that by reason of the delays in the construction of the bridge which occurred as a result of the declarations of the Minister made in 1994, and the consequential delays in the development of stage 2 of the marina, on 30 September 1997 the receivers and managers of Binalong transferred the marina to another company. It is alleged that in consequence of the transfer, Binalong is no longer able to proceed with stage 2 and later stages of the marina "and by reason of that fact has lost the ability to recover profits and recouped expenses totalling $69.62 million as at 23 May 1997…together with the further daily delay costs…". Alternatively, the loss alleged by Binalong is formulated on an assumption which puts aside the transfer of the marina to another company on 30 September 1997. The loss pleaded in the alternative is in respect of loss of profits that would have arisen upon the completion of stage 2 and following of the marina. These were not profits that would have arisen in 1994, but would have been deferred by the substantial time necessary to complete the bridge, and to develop stage 2 and following of the marina. Upon these allegations, it is arguable that in 1994 the circumstances gave rise to no more than the potential for Binalong to suffer loss or damage in the future. On one formulation of the pleadings the loss or damage happened on 30 September 1997. On the alternative formulation it is arguable that the loss or damage claimed arose at an even later date. Moreover, the pleadings include claims for legal expenses incurred by Binalong in defending or participating in various court proceedings or inquiries which occurred within three years of 12 May 1997, and which could not have been anticipated when the alleged contraventions of the TP Act occurred in 1994. In Wardley Australia Limited v Western Australia Mason CJ, Dawson, Gaudron and McHugh JJ observed at 533: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions 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." In my opinion that observation applies in this case. It would be inappropriate to refuse the joinder of Binalong, or if joined, to order that the proceedings against Binalong in respect of the causes of action alleged under the TP Act be struck out, at an interlocutory stage, on the basis that the claims are statute barred. Until evidence is received about the nature of the losses, it is not possible to reach a confident conclusion as to when the relevant causes of action accrued. Moreover, an early determination of this question will make no practical difference to the way in which the trial of the action proceeds. The allegations of negligence made by the applicants cover the same factual material as the allegations relating to misleading and deceptive conduct. Further, claims in respect of the misleading and deceptive conduct are made in the alternative under s 56 of the Fair Trading Act of South Australia, and corresponding provisions of the Victorian Fair Trading Act. For reasons which appear below, those claims may not be out of time even if the loss or damage occurred more than three years before 12 May 1998, and they would give rise to precisely the same issues as the claims formulated under ss 52 and 82 of the TP Act. Thirdly, it is not plainly beyond argument that the time limit imposed by s 82(2) is not capable of being extended in proceedings brought in South Australia. The Limitation of Actions Act 1936 (SA) in s 48 provides a power in a court to extend a limitation period for the commencement of civil proceedings. In Vink v Schering Pty Ltd & Others (No. 1) (1991) 13 ATPR 41-064 the issue was whether s 45 of the Limitation of Actions Act (SA) which prevented time running against a person under a legal disability, could be applied to an applicant seeking to claim damages pursuant to s 82(1) of the TP Act. The applicant argued that the State provision applied to the proceedings brought in the Federal Court by virtue of s 79 of the Judiciary Act 1903 (Cth). At first instance it was held that s 45 of the South Australian Act could not be applied to the Federal Court proceedings by operation of s 79 for the reason that, within the words of s 79, it had been, by s 82(2) "otherwise provided by…the laws of the Commonwealth". Leave to appeal against that decision was granted by another judge: Vink v Schering Pty Ltd & Others (No.2) (1991) 13 ATPR 41-073. The reasons given to support the grant of leave demonstrate that it is arguable that s 45 of the South Australian Act could have application. The reasoning for that view applies equally to s 48 of the South Australian Act: see in particular Vink v Schering Pty Ltd & Others (No.2) at 52,117. The appeal did not proceed as the case was settled in the meantime, and the question whether provisions of the South Australian Act can be applied in cases like the present one remains open. Mr Quick points out that s 48(4) of the Limitation of Actions Act (SA) requires that the initiating proceedings be endorsed with a claim to the effect that the applicant will seek an order under s 48. There is presently no such endorsement on the proceedings, nor has one been foreshadowed in the application for leave to join Binalong. That however is a procedural omission which can be cured by further amendment. In my view, it does not stand as an incurable obstacle to Binalong seeking an extension of time, if it is necessary, and the power under s 48 is otherwise available. Insofar as Binalong will seek to enforce claims under the South Australian Fair Trading Act, s 48 will apply if the proceedings are endorsed with a claim which invokes it.

For these reasons I reject the grounds of opposition raised by the respondents. I grant leave to the applicants to join Binalong as an applicant to the proceedings. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa Associate: Dated:

Counsel for the applicants : Ms M E Shaw QC with Mr D J Meyer Solicitors for the applicants : Lynch & Meyer Counsel for the 1st & 2nd respondents : Mr T R Anderson QC with Mr S G Connell

Solicitors for the 1st and 2nd respondents : Thomson Playford Counsel for the 3rd, 4th & 5th respondents : Mr D M Quick QC with Mr G L Muecke

Solicitors for the 3rd, 4th & 5th respondents : Australian Government Solicitor Counsel for the liquidator of Binalong Pty. Ltd. : Mr J C Clarke Date of hearing : 31 July 1998 Date of Judgment : 4 September 1998