New South Wales Court of Appeal CITATION : KELLY v. IBM AUSTRALIA LIMITED & ORS [1999] NSWCA 4 revised - 10/02/99 FILE NUMBER(S) : CA 40481/98 HEARING DATE(S) : 1 February 1999 JUDGMENT DATE : 1 February 1999 TIMOTHY DENIS KELLY (Claimant) PARTIES : IBM AUSTRALIA LIMITED (First Opponent) IBM LEASING PTY. LIMITED (Second Opponent) JUDGMENT OF : Powell JA at 1; Fitzgerald AJA LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 10636/97 LOWER COURT JUDICIAL OFFICER : Gibb ADCJ COUNSEL : S. Bell (Claimant) B.M. Green (Opponents) SOLICITORS : J.P. Gould by his Agent T.D. Kelly & Co. (Claimant) Heidtman & Co. (Opponents) CATCHWORDS : Practice and Procedure - Action transferred from Supreme Court to District Court - Power of District Court to permit amendment of pleadings after transfer. DECISION : Leave to appeal granted.; Appeal upheld.; Remitted to the District Court. - 2 - JUDGMENT 1. POWELL JA: The course which this application for leave to appeal has taken is a little unusual, and for that reason it is, I think, desirable that I record, albeit but shortly, the nature of the application and the course which it has taken. 2. The application for leave arises from a judgment delivered by her Honour Judge Gibb in the District Court in proceedings which had been commenced originally in this Court by the present Claimant, seeking relief in relation to the supply of goods and services by the Opponents to the Claimant in respect of his legal practice. A variety of causes of action were sought to be put in suit by the Statement of Claim which commenced the proceedings in this Court. 3. The Opponents, taking the view that, at least in so far as it affected them, the Statement of Claim was defective in a variety of respects, sought to have the Statement of Claim struck out as against them. That matter was dealt with by Master Greenwood who, in April 1993, delivered a judgment directing that the Statement of Claim be struck out, but reserving to the Claimant leave to file an amended Statement of Claim. Perhaps because an appeal was then brought against the Master's judgment, that amended Statement of Claim was not then filed. Indeed, it was not filed for the better part of another year after the appeal had been disposed of. 4. Later, after the amendments to the legislation which permitted this to be done, the action was transferred from this Court to the District Court, where ultimately it came before her Honour Judge Gibb. At the time, the Claimant sought to file a Further Amended Statement of Claim, while the Opponents sought to have the amended Statement of Claim which had been filed in this Court, struck out. Her Honour took the view that, albeit that the proceedings when transferred to the District Court, were deemed to have been commenced in that court, it was not open to her to make any order which would have the effect of varying any step which had been taken in this Court. Accordingly, without considering whether or not the Further Amended Statement of Claim was one which, as a matter of discretion, ought to be permitted, her Honour dismissed the Claimant's application, and it was that Order which came before the Court today. 5. As has become apparent from the discussion which has taken place between the bench and the parties, we are of the opinion that her Honour erred in the sense that although she could not vacate the Order that had been made by Master Greenwood, it was nonetheless open to her, if she thought it appropriate, to grant leave to file the Further Amended Statement of Claim which the Claimant had sought to file. 6. That view having become apparent, we invited the parties to consent to our dealing with the appeal and to making Orders which, while preserving the right of the Opponents to oppose on other grounds the filing of a Further Amended Statement of Claim, nonetheless remitted to the District Court the question of whether or not that further amended Statement of Claim ought to be permitted. 7. In those circumstances, we propose to make the following Orders, and we note that in so far as we, as a court of two, are dealing with the appeal itself, we do so with the consent of the parties. 8. The Orders which the Court proposes are, that leave to appeal be granted to the Claimant; that the Notice of Appeal included in the court papers be deemed to have been filed and listed for hearing before the Court this day; that the appeal be upheld; that the Claimant's application for leave to file the Further Amended Statement of Claim be remitted to the District Court to be dealt with, and that the costs of today to abide the result of the application to file the further amended Statement of Claim when dealt with in the District Court. 9. Perhaps we should add, first, that the Amended Statement of Claim filed in May 1994 be removed from the file in the District Court; and, second that it will remain open to the Opponents to oppose the application to file the Further Amended Statement of Claim, and that the decision of this Court should not shut out any potential round of opposition, whether related to the expiration of the limitation period or otherwise. 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