21% O: ray, 4 ( / 4 ' - SAPCH oe PliaCTLCE ANY PROCKDURE = amendmant co statement OF clagm - wheth: mounting two ua fresh cause of action -— whether in tibet eount.. claim 1.0 © cCross-clein =~ period' of lamitation £or counter clesm fO a claim ander the acerued jura-ticeion ol tne Cour . TVADS PRACTICES - pertod of Linvation for claus under s U/ of the Foc. Ie. sty Bet 1903 2u.7> & BU Trade Wrac tics Ae'. 19/4 ss.824 & 87 Lamitatrcoan of Aetionrs, Act (Vic) 1456 2.30 LAST thud BATH voTNErnuat for i Lunh RALE) as VG No. 53 of 1973 Wwoodeard ¢ 3 .wwouest 2 Melbourne IN OTHER FEDERAL COUR Of AUSTRALIA VaClORTA DISTRICT REGISTRY VG No. 53 a1 1973 ww ew GENERAL DIVISION BETWELN: BRNUS2 WOLLTAS BAP Ag] Teg" and INTERNATIONAL COMPUTERS (vdeo ALLA) PIV. itll no Re Sint Ls is JUivst MAIR ORL AD Wootwirw of i DATL OF ORDuUR oo 3 praguetd LOS: WHERE WADE Helioourn THI, COURT ORDERS THAT: l. The application by the plaintiff for leave to amend 1°s statement of claim to the form produced to the Cocct on 5 Apri] 1984 be allowed. 2. The costs of this application be costs in the cause. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 53 of J¥78 _ ) GENERAL DIVISION ) BETWEEN: SRNEST WULLTAM BATE ApplLreant and S (AISTRALIA) INLERNATIONAL COMPUT: "pT. birt Ree Wedest JUDG: Woodward J. DATE. 3 august 1986 RLALG!NS PO. TU! AEN? Tne matter wis cocuerded in Sop eater LOFo py aver ae summons, with statement of claim unnexed, issued under the rules then applying to this Court; 1t has siuce been ordered that the matter proceed under the Federal] Court Rules, but 1t Ys convenient in these reasons to continue to refer to the parties as plaintite and defendant. The Gefendant entered an appearance seven wontl 3 later and filed a request for further and better particulars six months after that. Then nothing happened, sce far as the Court was concerned, for four years. On 3 November 1983 the defenuant filed ai cross-claur against the plaintiff. The mMavner was tic Set Gown by Lhe Coar. for a direcrions hearing. tne defeniant then filed a nolize of AQ motion seeking to have the statement of claim disiuseed for want of presecvution or, alternatively, leave to deliver oo. comended defence and counterclaim with conseguent1il directions. On 5 April 1984 the Court refused the applicaticea ta strike out the statement of claim, gave leave retrospectively (and without objection) for the filing of the cross-claim, and adjoucned the hearing to allow the pliintiff to rormularve an amended statemcnt of claim. The plaintifi now seel.s leive lo iwke a number of amendments and the detendant has obylectad 'tio lou being granted in respect of several of them. The derendest! objechion 1s that these amendments disclose a caus of actinn noi Plewta Dy the ple abe £* Gr hig ect rsa skh pesto ooe claaw 7.0 thee che can-a of telson now ateroloved 8s slactt be parr. ere wseume Toya Baal acy, hy now cmunger, thos Gc cbse tte pow OC Jiarlatiron avwple 3 10 the preee Pre Tyee TL De cp Le Lor of the Daaliautiore t_ a (Jieboecras; 1958, b ough ute play by ss.79 and 80 of Lhe Jaditecrer, Act 1903. In my view the position is mors complicated than that In the first place I believe that the applicunt's claw is governed by a three-year period of Jisdt1tation. rie rade Practices Act 1974 provides, in s.82(2), fer o three-year period for damages claims brought under s.82(1) of the Ack, as this cleu clearly is (see helovw). in my view the same Linitatton period must apply to the other clazums under s.&7 of the Act Which are supplementary and ancillary to that basic clsim for lamages. Tri, must clearly he so if s.87(1)} as invebed, as aAppeera Lo b2 Hie case here (see below), becanso ats averlapiltty as wholly dependent upon the claim under s.32. Even if s.87(1A) were relicd upon, enabling the other cliaams to strind on their own feet, IL believe that the scheme of the Act requires that claims so clos Ly related to damages claims as are the claims in this case must weet the some limitation requirements; sec Fenech v Sterling L985 ATEP 40-413. The situation may well be different 1£ claims unier s.87({1A) were appended to an application for an injunction unier s.80, as to which there is no limitation pertod ian the Act - although th? Court would no doubt he slow to grant relief where ar applicetion had been long delayed. e re) i io The question as to whether, and to what exte: Limitations AM ipelies to the ererciga of foaleral jguvisdtelsan 2:7 8 CO pagtablisuet by tl eee etd ta Mor lsattenmt, teow COon,eru 2 (Khe fiten Cogan om Se 7021 gb vedo sea +3 coe, dn particular. wedtea Crosby * Co. Prey. Lud. v (1963) Log cre 490, Ped "son vo Younus tl TY 112 CaN foe ae. Jvobn Rohl. son & oe Lta. v Ferguson Yransforws.s Ply. Teo. (1975) 120 CLK G4. Jt as not necessary for present purposes to analyse the respective judgments in those cases, because 1 think it 1s clear tn pruncipl > that the relevant state Limitations Ace must apply to a claim entertained under the accrued Jurisdiction of the Federal Court which would otherwise have been heard in a state court. The state Act will apply, in its terms, both to the riyht to bring the claisa and to the right to counter- claim against that accrued Jurisdiction claim. There is nothing in any of the Htyh Court Judgments to suygest otherwise. The basic facts of this case are Unat between 1d Mav 1974 and 16 September 1977 tre plaintLff, a putholoyist, and tie defendant company entered into a series of ayreements for the rental, sale, licensing and servicing of a considerable yinge of computer equipment and components to be used by the plitntiff ir his profession. The agreements were reduced to writ uc. 4t 018 common ground that the written agreewents relevent For presonr purposes relate to two different coawputer systems oil varios components for those systems; they nave bew) deoursu2s 2903 series computer ('2903 commuter') and the 2760 serin' computer ('2960 conmputer'). The 2903 computer vas Ceiat ered > the plaintiff and used by has; the 2960 cuoaputer led noc Dees. dolavere?t ta the straint fF 2+ the tim: fe renuda tod any Tiakbilit > under thr agrecaene relating 4 By the sbatement of e@leym ay ous aljegit 'he ora us course of neyotuastaens beteranm che placucsef und .o4 a Cues leading to tie wiiing of vairtews ''corpale: asreurgaine'. ot - - we defendant engaged in conduct, and made representations, contravention of sections 52(1) and 53(e) of tne Prades Practices Act 1974 ('the Act'). The term 'computer ayrcements' as vrsec in the statement of claim 1s particularised in paragraph 3 OF the statement of claim; it is not necessary here to set out that usr of 28 agreements. The list consists Of 26 ayreemeats that relate to the 2903 computer and its components and includes only two agreements that relate to the 2960 computer. It 12s camrmmen groundH that the two 2960 computer agreements listed are not the centra contracts for that series. The particulars of the alleged contraventiors or sections 52(1) and 53(a) are stated in the following terms: "In or about the month of August, 1973 the Defendant supplied to the Plaintif£ a "Managument Summary" ain respect of the Defendant's computer equipment known as J.C.L. 2903 Compater System hereinafter called "the 2903" The sald Manaycwent Summary inter alia contained the followlag representations ead/or statements -" (A list of eleven detailed representuttous then follows). The statement of elaim then goes on to allege that thers representations proved to be untrue and inaccurate, and as a result sections 52(1) and 53(a) of the Act have been controuveuest. AMochee alles wasn orn theo sbat amet of sbaram eaqarsh ig relevant ror c . Ls present purpoces mada: "The Getio osriduc wo sow. cof vt and che strd reprercrt? lols ePa Of Hbatemiar es vr sone Cf tan > eeee WOPG Tuucaiyed?d and/ur eabga had gu and/or repoeatol by ro Defemdame coreceds aid to tie- PlasitdfF* geom tris vO time vetwooun tie moutns of August, lys3 and June, 19/7." No particulars of the occasions or of the form an which che representations were repeated are provided. Although it does net express it clearly, this parayraph sugyests that 11 was not only the 'Management Sumuary' referred to ain the particulars that induced the plaintiff to enter anto the computer agreemomes listed, but that other statements and representations were also made by the defendant and relied on by the plaintiff. The particulars of relicf sought by the plaiinkiff demonstrate that it is to be Limited to tire listed 'coupute: agreements'. The relief sought is - "A. An order that the Defondant refund to the Plaintiff moneys paid by the Platnilft by way of rent, hire ard ouner concr1deribren pursue me to the agreements referred to in the Particulars to parayraph 3 hereof. B. Damages. io} A declaration that penarnyg payment of sucn damages the Plaiantiff be ne longer redauired to pay any of the suns due by nim pursuimt to the contracts particularized under paragrajyh 3 hereof. D. An ainjunetion restraining the Dafendant pending the hearing of this action and pevdriey peyment of such damages as sneuld bse asa2cne,. un fuvour of the Platntiff From seining tue 2903 Computer or any component part of associated prec) s of equimiunt pursue Lo cu, of the terms of the conmcrncts parlicubiaraned In paragraph 3 hereof. he Se Orders thak the sard concracts zasofar as ties terms tnereroaf area gueonrsistent with thes orders Le poewrvbtem co coerta., 1 ove le oa orders. F. Such runes Greeters lect cee ote ar Robe e as the wveoaeh shat ce ." Paragraph Boys ile.viy a oc an puroden 1 t uedtfs) vt the Act, end paragraphs A, € and E appear to reiy upun s.%7(1) which enables ancillary orders to be made in such a case. The plaintiff now seeks leave to amend its starewont oF claim to include, in the particulars to paragraph 3, a muuber of additional agreements relating to the 2903 colmuter amd, more Vs ye amportant, a series of written agreéwencs Lhat relate to Lne 2794 computer. Counsel for the plaintiff submitted that, althovwgn not previously particularised, these 2960 computer agreemerts clearly fall within the period 14 May 1974 to 16 Seplember 1977, which was referred to in paragraph 3 of the stabeneut of clitm The defendant contends thit the anclusion of Lhese agreements 15 more than a mere particularisealion of ayreements not previously specified. It as in effect the pleadiny of facts establishing a new cause of action. In developing this argument counsei relied particularly on the proposed amendment to 'Le particulars which sets out the representations on wnich the plaint1fF would rely in relation to the 2960 computer. These representations, set out in a proposed paragraph 545), are mutes different from those alleged in relation to the 2°63 cowpurer. Although these are also amended in pronosed paragrarh 3(2), en ameniments are in elaboration or explanation of the allegations 1a the original statement of claim. Althoujn some variation 13 invotved, thie amendment in 5(?) as, ain my view, clearly pereissiole Sub-paicaygraph 5(3) 23 an a Op Eferenb oe cegorcy altegerhe-. It mikes clear thar the plaintii€ nay ew sheer ic complain. of gqarte separate representations eeyarttig Gg oy cce separate set of contracts. The two 2960 computer contracts previously lumped together with the 2903 computer contracts ars now back un their rightful place. No explanation of this has been offered to the Court; one can only assume that they Wee previously included with the 2903 contracts in error. The argument that the proposed amaudmenls concerning tne 2960 computer amount to the raising of a fresh cause of action is further supported by the amended claim foc relief. This is im the following Lerms: De] "Rh. A dcelaration that the Defenilant has contravened the provisjsous of sections 52 and 53 of the Trade Pructices Avt 1974. B. An order that the Defendanl refunl to trie Plaintiff moneys paid by the Plainliff by way of rent, hire, and@ other consideratrons pursuunt to the Computer Agreements. Cc. Dameges. Db. A @eclaration that erich of the Vomprier Agreements in Series 17, 19 and 20 [the 2900 contracts] was void ab thayl1ro or alternatively, resetunded by the Plaiptiff as from December 197/ or such other Gece as to the Court shall seem pixropel. li. An order that the Computer Agree csms.ds comprised in Series 2 to 20 inelrsive cilee 2903 and 2960 contracts] be varied an saci Wanner as shaJl ro the Court seem propel. EF. Such furthec orders, declaratLon3, or felelt as (ha Cou £MeL) Geen edt Yhe defiudeaut!s ceontpal my cligr to til detater Lucl.sron of thea main 2.940 Cone ter erent ue ran -7? plaanlaftf, bp bigs Tarluce €o anelul. tHe. tn hr GO Lowe statement of claim, or to untroduce thuin in the five years that followed, has abandoned his claim in relatcon co thes de contends that the agreerents and the sktatenents and representations in relation to them constitute a new caaee vol action which is now statute barred. Accordingly, 1% 1s said that, following the practice that originated with Weldou v Meal (1887) 19 QBD 394, the amendnent ought not to be alloved. A leading Australian authority on this subject 1¢ cle Haigh Court decision of Renowden v Merial lin (1970) 1°3 CLR Sed. dn that case the plaintiif, a solicitor. brought aon acwuien ayeanst c farm of auditors who had been responsivle for the andrlbruqg of books relating to his practice. Ly his general endorsement on Fhe writ of summons he claimed loss and dawaye alleging breach of contract and breach of the duty of care imposed on the defendances, as auditors, by the provisions of the Logal Professional Practice Act (Vic) 1958. The statemeut of claim delivered parseant Lo the + writ claimed only loss and damajge un respect of the hreach at statutory ducy. At a time when the action in respect of breach of contract was statute barred the pletintiff sougnt Jeave te wsend his statement of claim to include it. Tne igh Cou.t neld thw: the plaintiff's failure to include this cause of action in his statement of claim amounted te an ahandonmont of it and, Since -. was statute barred at the time the amendment Wes sought, thy ead oot eeagia mor te «'L 77 Corey Te, ee Fela re ret de deersion of the miyortey, 2nd for ou. Ou': "Os. dr a cade bu whteh youl di@n to. platepene OF elear 16 Gorghe ember vA eB te Th Lon o£ € Nand Git treat te bat fun 16 aflegetoun th> elatemene of Clout m7 Lh wopeaen Pbor ae tne det. wrep the aweon@nent ws =. one hee cage cf acinus, would be statute barred Lf a writ Were then lesuct, the amendment should not be allowed except perhaps un whut Lord Esher had described [Lin Weldon v Neal above] as 'very peculiar circumstances" ©..." Althoujh in the present case it 318 the particular set cf contracts, rather than the nature of the action, which is different, l think the inference of deliberate abandoumeut of ay substantial claim relating to the 2900 computer is clear enough. In my view the facts of the present case cin 1 distinguished from those considerel by the Hign Court in Blew v Melbourne (1964) 39 ALJ 303. There the Argh Cou - ~ 190 = was osked to decide, amouy other things, whether an awendienl to the plaintiff's statement of claim on the Gay of the tei allowed by the trial] judge, should have been permitted, given that the period of limitation had run at the time tne amendmusut wi, seugnt. The plaintiff had claimed damayes for injuries sustained whilst using the defendant's public baths. He alloyed by his statoment of claim that the defendint occupier owed Hin a auty of care "48 an anvitee, and so wag responsible for the inguricre sustajned when he dived un and collided with a submiged prewe os timber. He had sought to amend his claim to wnelvde allegakiowse that, because of the combination of the height of the platforw iss the depth of the water, he had struck his head on che hotton. Parwiel ¢C.3., €9r @ Judgment tr which Witfo & Paylor due, concur aay eurd (9.7L): aie rd bh 'Ad scams to wwe ubite @tleagm th ol, 7 are pharntr1ic's cause of ato oo 2d rot lp eet oh barcticularwsine cf Le Froate ry via ca Te see) 6 6te) 6 6SuStain bhe oon oho er ors te ettbietly alter. It would, wows oor, ive bwen @.t lUproper exvercite OF tadtova Vise cries for the trial judge in this case to have refused the plaintiff the opportunily to present Nis procis of that cause of action differently to the manner in which he had originally proposed. Questious of surprise and disadvantage because of a chanye of course in proof can almost always be ret bs adjournment and appropriate orders as to costs. ft would certainly have been so in tnis case. AS there was, im my opinion, no new vaure oF ation involved in the changed particulars, no quescion of the statute of Limitations fell for congidci1ation." n The case argued by counce] for giving leave to amend to inciude the 2960 couputer agreements, cin he summarized in tur following propositions: 1. Paragraph 3 of the statement of claim darcsabes 2 per Les of 'compurer agrecients' made bohwecn the parkies on dates vetyvecn 14 May 1974 and 16 September 1977. The Staceme. t3 aid representations alleged to have contravened the Act which are now sought to be included (and the respective ayreeme als to which thes relate) are computer auyreements and are spesifie] as having occurred within that period, which was unnscessariiy vide to cover the 2903 computer agreements, the Last of wnicu was entered ante on 30 Jun: 19//. 2. The pacticulars of 'computer aqreemants! refer: +} co Vu paragraph 3 of the statement of claim do, whelber eri oucously o7 not, mate reference +9 tee of the 2960 arunnter ¢ preanenls. AG 4 result Lba 2960 comprter agree denhse ot ued ee ttle wot La ipa shate: ent or oclain. 3. The oretemect Of clint Foon cusjest bat ove a Tb aes and represeniacitonese detacted an the woe eml oh Su. ay oe 7 repeated and maintained between the mouths of Auqust 19743 aul sfune 1977. Altnough, this allegation does not specifically .2late to the 2960 computer agreenents and the slatoment« ahd representations alleged to have been made in respect of them, 1£ serves to indicate that the statemants and representations relevant communications between the parties. Tu could be argued that the inclusion of the new sub-paragraph 5(3) werely uncorporates further particulars of Lhe statements and representations thus referred to. 4. The defendant 1s not confronted with a cause of action of eae difterent nature from that previously raised. Section 52(1) and 53(a) contraventions are alleged and the relief sought 1s similar, though not identical. Althouyh these are cogent arguments, L would be inclissd to refuse leave to amend on the ground of a clear intention tu abandon the central claim concerning the 2960 computer agreements, were it not for the circumstances surrounding the filiny of 13.- cross-claim by the defendant. Although this matber was nal. particularly relied upon in argument it 1s, in my vre?, deorsiv> of the cese. we. Od Men sSaty tO Consider the Ci ss ream ar Qctari far present purposes, execapr cy Bay ther by chat ciara tae Qofentapt seeks damages for the breach (by wag Ff vrongivl repadsataon in Ovroher 1977) of corputer agre animtucs Cl seed arte with the plaintiff, ancluding those that relate .0o the 23u computer. In fact by its cross-claim the defendant raices the basic 2960 computer agreements for the first time in this action. The agreements the defendant incorporates in its cross-clFik unclude all the agreements which the plaintiff now seeks leave iv uncorporate in the particularised list an paragrapn 3 of the statement of claim. By objecting to the plaintiff's amendments to anelwie claims relating to the 2960 cumputer agreements, the defendaat 1.5 e in effect asking the Court to deny the plaintiff an oppertuneity to counter~-claim ayainst the defendant in respect of the basic 29.9 U bh i> t "~y compuler agreements. It 1s clear that, pursuant to s.30 of the Victorian Limiation of Actions Act 1958, either a set-off or counter-clatm which imght otherwise have been statute bacred Ji cases such as the present, is pnt beyond challenje by being desma "to have been commenced on the samo date as the achion tn which the set-off or counter-claim is pleaded". Yhe defendant'. eross-cla1m, pursuant to the Court's acerucd jurisdiction, in the present case having already been saved by this rule, the plaantitt must also receive the benefit of ait. Io am satisfied that tue matters the plaintiff now wishes 10 raise for the first time cau preperly be regarded as a covnter-claim, and there as autihorit: for tne view that, in the circunstances of this case, they are property os beads hy way OF amenwae yp) Fo the stoetement of elacar: see Aurel Pore © Liye. Ine. Vo Grallam Nerh Divelomusnts Pty. itl. 1975 VR 2uL ak 220. The subutence of the mater 2s that the olarnbirf& uns sued the defendant over the 2903 computer, claiming ii \ Y v misreprescnted to him. The defendant has belatedly crous-clained over the 2960 computer which the plaintiff refused to accept. 'Th plaintiff now wishes to counter-claim, within the meaning of the Limitation of Actions Act (Vic) 1955, to show that that computer was also misrepresented. In my view he is entitled tu do so. 'The plaintiff will have leave to amend his statement of claim ut sought. I hereby certify that this and the twelve (17) preceding pages are a truce and accurate copy of the Reasons for Judgmunl herein of ? The Hon. Mr. Justice Wogiward . a LE. ° LV wig go (CANEt- or eA — Associate Dated: 3 August 198