Wardley Australia Ltd v Western Australia [1992] HCA 55

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Wardley Australia Ltd v Western Australia [1992] HCA 55

ORDER Appeal dismissed with costs.

Cur. adv vult.

The following written judgments were delivered:—

Oct. 28 Mason C.J., Dawson, Gaudron and McHugh JJ.

The principal question in this appeal concerns the time at which a cause of action under s. 82 of the Trade Practices Act 1974 Cth ("the Act") accrues if, as a result of misleading or deceptive conduct, a party enters into an indemnity which is subsequently called upon. A second question relates to the power of a judge of the Federal Court to allow, under the Rules of that Court, an amendment to a statement of claim which adds a cause of action otherwise statute barred.

The proceedings

The appeal is brought from a decision of the Full Court of the Federal Court (Spender, Gummow and Lee JJ.) [1] which, for reasons given in a joint judgment, allowed an appeal brought by leave from a decision of French J. [2] in which his Honour had struck out par. 16(c) of an amended statement of claim in proceedings commenced on 24 October 1990 by the respondent, the State of Western Australia, against the appellants and others. The case pleaded by the respondent, so far as it is relevant to the present appeal, was that the appellants, Wardley Australia Ltd. and Wardley Australia Securities Ltd., which carried on business as merchant banks, engaged in misleading and deceptive conduct in connexion with the execution by the respondent of an indemnity in favour of the National Australia Bank Ltd. ("the Bank") against a facility granted by the Bank to Rothwells Ltd. ("Rothwells"), by reason of which the respondent suffered loss or damage. Paragraph 16(c) was introduced into the pleading on 14 January 1991, more than three years after the execution of the indemnity on 26 October 1987, the date when, on the appellants' case, the respondent's cause of action, as pleaded, accrued.