vr ~, \ { \ a x CATCHWORDS ' engit —~ G got ='" ' Practice and Procedure - Statement of claim amended to include claim of relief pursuant to s5.75B Trade Practices Act with respect to second respondent - application to strike out relevant paragraph of statement of claim - whether introduced fresh cause of action against second respondent - whether beyond limitation period fixed by 5.82(2) Trade Practices Act. Trade Practices Act : 5s. 52, 53A, 75B, 82 Weldon v. Neal (1887) 19 Q.B.D. 394 Matter No. G41 of 1984 ADRIAN JAN SIEMELINK and RENEE STEMELINK-KNAPP v. ALEXANDROU ESTATES PTY. LTD. and JOHN ALEXANDROU Forster d. Adelaide 27 August, 1985 IN THE FEDERAL COURT OF AUSTRALIA } Ve ! SOUTH AUSTRALIAN DISTRICT REGISTRY) ) No. G41 of 1384 GENERAL DIVISION ) BETWEEN: ADRIAN JAN SIEMELINK and RENEE SIEMELINK-KNAPP Applicants - and - ALEXANDROU ESTATES PTY. LTD. and JOHN ALEXANDROU Respondents - and - MINUTE OF ORDER JUDGE MAKING ORDER : FORSTER, J. WHERE MADE : ADELAIDE DATE OF ORDER 27 AUGUST 1985 THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIAN DISTRICT REGISTRY) ) No. G4l of 1984 GENERAL DIVISION ) BETWEEN: ADRIAN JAN STEMELINK and RENEE STEMELINK~KNAPP Applicants - and - ALEXANDROU_ ESTATES PTY. LTD. and JOHN ALEXANDROU Respondents PEASONS FOR JUDGMENT CORAM: Forster J. The second respondent (Alexandrou) has applied by notice of motion for an order that the statement of claim delivered on 18th July 1985 be struck out against him and that he be dismissed from the action. The ground of the application is that the statement of claim seeks relief aqainst Alexandrou pursuant to s.75B of the Trade Practices Act with respect to conduct alleged to have taken place between the months of November 1981 and 19th May 1982 being more than three years prior to 18th July 1985. It is arqued therefore that the claim against Alexandrou is outside the limitation period fixed by s.82(2) of the Trade Practices Act and is barred. 2. The initial application in this matter was issued on 14th November 1984 and claimed "damages for misleading and deceptive conduct as defined in s.52 of the Act and damages for the making of a false and misleading statement contrary to 5.53A of the Act". The application does not specify that both the claims are made against both respondents but in the absence of any suggestion that one only of the respondents is claimed against, I think that the application means that both claims are made against both respondents and it should be so interpreted. The statement of claim was filed and delivered on 20th November 1984. This statement of claim was poorly drawn and has since been amended twice. The farst statement of claim alleged that Alexandrou is a director and shareholder of the first respondent and was employed by it as a real estate agent. It was also alleged that the first respondent is an incorporated company involved in trade and commerce. It is alleged that the applicants appointed the first respondent to sell a surburban house property as a result of representations made by Alexandrou as to price expected to be realised on sale, which representations were said to be untrue, misleading and deceptive. The statement of claim also contained an allegation that both respondents were quilty of negligent misstatement. Damages are claimed generally. This statement of claim mentions no Particular section of the Trade Practices Act and indeed makes no reference to the Act at all. The final statement of claim filed and delivered on 18 July 1985 alleges representations made by the first respondent which are substantially the same as the representations alleged in the first statement of claim to have been made by Alexandrou. It 15 pleaded that the making of these representations "was conduct which was misleading or deceptive or alternatively likely to mislead or deceive contrary to s.52 of the Trade Practices Act" and "were false and misleading statements contrary to s.53(A)(1)(b) of the Act". The statement of claim goes on to Plead in para. 14 - "Contrary to Section 75B of the Act John Alexandrou was a person who aided and abetted counselled or procured or was knowingly concerned in or a party to the conduct referred to in paragraphs 7, 12 and 13 hereof and in particular made the oral representations referred to in the said paragraph". This paragraph or anything like it referring to 5s.75B of the Trade Practices Act had not previously been pleaded. It is arqued on behalf of Alexandrou that para. 14 introduces for the first time a fresh cause of action against him. This fresh cause of action arose, because of the dates between which representations were made, more than three years prior to the making of the amendment and therefore the claim against Alexandrou should be struck out. Weldon v. Neal (1887) 19 0.B.D. 394 15 referred to. If 1t 1s right to say that para. 14 introduces a fresh cause of action for the first time then it 4. is my view that this argument may succeed. However for reasons which follow I do not think a fresh cause of action 1s introduced by para. 14. The application, as I have said, claims (inter alia) damages against both respondents pursuant to ss. 52 and 53A of the Trade Practices Act. It as true that the original statement of claim, whilst setting out the representations now complained of, pleads that Alexandrou made them. Although it is not specifically pleaded, it 1s a clear inference that he made them as a director, shareholder and employee of the first respondent. Although the first statement of claim makes no reference to the Trade Practices Act the application claims damages for breaches of s.52 and 53A of the Act. The statement of claim alleges that "in the premises the applicants have suffered loss and damages" and claims damages together with interest and costs. This seems to me to be a tolerably clear claim that with respect to contraventions of s.52 and 53A of the Act damages are claimed pursuant to 5.82 of the Act. Section 82(1) of the Trade Practices Act is as follows - "A person who suffers loss or damage by conduct of another person that was done in contravention of a provision ot Part IV of V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." Section 75B 1s simply an interpretation of the words "a —- a0. 5. person involved in a contravention" and at is probably unnecessary to plead it. Whether this be so or not, it seems to me plain that to plead this section as the last statement of claim does, raises no fresh cause of action and simply pleads what has already been pleaded ainelegantly and perhaps to some extent inadequately. Inelegant and to some extent inadequate the farst statement of claim undoubtedly was, but ona proper reading of it ait 1s clear that a claim was made adainst Alexandrou wath respect to respresentations made by him. Whatever the deficiencies of the first statement of claim may be Alexandrou can have been in no doubt the claims were made against him with respect to the representations. It therefore seems to me to be somewhat unreal to claim now that the latest statement of claim introduces a cause of action against Alexandrou for the First time. In the circumstances the application at present hefore me should be dismissed with costs. I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. , _ PA "or Associate Serer OWE Dated: a ne