Cork v AAL Aviation Limited [2014] FCA 1085

FEDERAL COURT OF AUSTRALIA

Cork v AAL Aviation Limited [2014] FCA 1085 Citation: Cork v AAL Aviation Limited [2014] FCA 1085

Parties: BERNARD LAWRENCE CORK v AAL AVIATION LIMITED (ACN 008 642 886) MARK LESLIE BEST v AAL AVIATION LIMITED (ACN 008 642 886) GARRY EDWARD KEAR v AAL AVIATION LIMITED (ACN 008 642 886) GREGORY DAVID BROWN v AAL AVIATION LIMITED (ACN 008 642 886) KEVIN JOHN BREWER v AAL AVIATION LIMITED (ACN 008 642 886)

File numbers: ACD 10 of 2012 ACD 11 of 2012 ACD 24 of 2012 ACD 25 of 2012 ACD 87 of 2012

Judge: FOSTER J

Date of judgment: 8 October 2014

Catchwords: LIMITATION OF ACTIONS – whether an application to amend a Statement of Claim to include claims for damages for breach of contract should be refused because the amendment is futile for the reason that, in the circumstances of the particular case, all breaches of contract relied upon by the applicant occurred more than 30 years before the relevant proceeding was instituted with the consequence that all claims were statute-barred by reason of the operation of s 51(1) of the Limitation Act 1969 (NSW) (the ultimate bar) notwithstanding that the applicant sought to argue that the ultimate bar was postponed on account of the fraudulent concealment of his cause of action by the respondent – whether the ultimate bar can be postponed by reason of fraudulent concealment or unconscionable reliance upon the Limitation Act

Legislation: Australian Airlines (Conversion to Public Company) Act 1988 (Cth) Australian National Airlines Act 1945 (Cth) Federal Court of Australia Act 1976 (Cth), Pt IVA Interpretation Act 1987 (NSW), s 34 Limitation Act 1969 (NSW), ss 14, 51, 52–56, 58, 59, 60, Pt 2 and Pt 3 (generally) Limitation (Amendment) Act 1990 (NSW) Superannuation Act 1922 (Cth) Superannuation Act 1976 (Cth) Federal Court Rules 2011, r 8.22 and r 16.53