Rozene v Raine & Horne [2000] NSWSC 819

New South Wales Supreme Court

CITATION : Rozene v Raine & Horne [2000] NSWSC 819 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12765 of 1989 HEARING DATE(S) : 11 August 2000 JUDGMENT DATE : 18 August 2000

Rozene Pty Limited (Plaintiff) PARTIES : v Raine & Horne Commercial (NSW) Pty Limited (formerly Raine & Horne Commercial Pty Limited) (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M J Walsh (Plaintiff) Mr D R Stack (Defendant) SOLICITORS : Deigan Moore Associates (Plaintiff) Phillips Fox (Defendant) CATCHWORDS : Application to strike out - causes of action - expiry of relevant limitation periods - discretionary considerations - no question of principle. Supreme Court Act 1970, s 81. LEGISLATION CITED : Trade Practices Act 1974. Supreme Court Rules 1970, Pt 15 r 26, Pt 20. Australia and New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286. Baldry v Jackson (1976) 2 NSWLR 415. CASES CITED : Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937. Star & Ors v National Australia Bank Limited (Rolfe J, 8 April 1999). Wardley Australia Limited & Anor v The State of Western Australia (1992) 175 CLR 514. DECISION : See paragraph 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 18 AUGUST 2000

12765 of 1989 ROZENE PTY LIMITED v RAINE & HORNE COMMERCIAL (NSW) PTY LIMITED (formerly RAINE & HORNE COMMERCIAL PTY LIMITED) JUDGMENT 1 Proceedings were commenced on 22 June 1989 by the filing of a Summons in the then Commercial Division of this Court. The Summons claimed inter alia damages for breach of an agreement between the parties. In accordance with the then practice, the process contained material concerning the nature of the dispute, issues likely to arise and a summary of the plaintiff's contentions. This material contained certain allegations of negligence. 2 There was some initial activity and the proceedings were transferred to the Common Law Division. The proceedings then went to sleep for many years. 3 In 1997, the defendant filed a Notice of Motion seeking to have the proceedings dismissed for want of prosecution. The Notice of Motion was brought on for hearing and determined in July 1999. It was dismissed following a reserved judgment. Reference has been made to certain observations made in that judgment. I do not propose to repeat what has already been said therein. 4 On 12 July 1999, the proceedings came before Registrar Irwin. Certain orders and directions were made by consent. The orders and directions included the following:- "1. The Plaintiff file and serve a Statement of Claim by 19 August 1999." 5 A Statement of Claim was filed on 19 August 1999. It purports to allege three causes of action. Apart from the cause of action founded on contract, it purports to plead a cause of action founded on negligence and a cause of action under the Trade Practices Act 1974 (the Act). 6 An Amended Statement of Claim was filed on 28 June 2000. The changes made by that document have no relevance for present purposes. 7 There has been a seeking of further and better particulars. This exercise has produced a flurry of correspondence. No defence has been filed. 8 A Notice of Motion was filed by the defendant on 8 May 2000. It came on for hearing on 11 August 2000. The Notice of Motion was supported by an affidavit sworn by Mr Sharpe. The plaintiff has tendered certain documentation (Exhibits A and B). 9 The Notice of Motion in effect sought relief pursuant to Part 15 rule 26 of the Supreme Court Rules 1970. In essence, the application sought to have the causes of action founded on negligence and the Act struck out on the basis of abuse of process or failure to disclose a reasonable cause of action. 10 At the time of the filing of the Statement of Claim the relevant limitation periods for the causes of action founded on negligence and the cause of action founded on the Act had well and truly expired. I might add that the Act enables an action to be commenced at any time within three years after the date on which the cause of action accrued. Apart from looking to these matters, the defendant also urged discretionary considerations (including delay and prejudice) in support of its application. 11 After the conclusion of the hearing and the reserving of judgment, written submissions were made. In some respects these expanded on what had been said in oral argument. 12 In the course of argument, the parties exhibited a tendency to view the application as being of a character different to what in fact it was (inter alia treating the plaintiff as a party in the position of an applicant seeking to amend). I must say that I have had considerable difficulty seeing it in that light. A further difficulty in dealing with this application was the reluctance of the parties to grapple with what seems to me to be the real issues that have been thrown up by the unique circumstances of this case. In addition, in some instances, matters have not been fully argued. 13 Before proceeding further with the strike out application, I should mention that the Notice of Motion also sought relief in relation to particulars. The court was informed that this matter had been resolved prior to hearing and that only a question of costs remained outstanding. The question of costs has not been argued and accordingly it is reserved. 14 The court has been referred inter alia to provisions of the Act and various decided cases (including Australia and New Zealand Banking Group Limited v Larcos (1987) 13 NSWLR 286; Wardley Australia Limited & Anor v The State of Western Australia (1992) 175 CLR 514 and Star & Ors v National Australia Bank Limited (Rolfe J, 8 April 1999) ). 15 I shall now proceed to mention certain matters that were either raised during the hearing and the written submissions or have relevance thereto. 16 Part 20 confers powers of amendment on the court. The powers are wide (in particular the power conferred by rule 1). There is abundant authority for the proposition that there are powers (including the power conferred by rule 1) which may be exercised even though a relevant limitation period has expired. Rule 4 (which has a limited application to cases in which the relevant limitation period has expired) makes express provision to that effect. 17 In the amendment context, reference was made to what was said by Toohey J (with which Deane J expressed general agreement) at pp 561-562 in Wardley . This went to a question of the power of the Federal Court to amend a Statement of Claim so as to introduce a cause of action which would otherwise be statute barred. This dicta was unnecessary to the decision in Wardley . 18 There was also reference to what was said by Rogers J (as he then was) at p 295 in Larcos . He rejected the contention that Part 20 rule 4 was invalid to the extent that it was inconsistent with the time limitation contained in the Act. 19 In the present case, the Statement of Claim was not filed pursuant to Part 20. It was filed pursuant to the consent orders and directions of the Registrar. Presumably, the parties took the view that the plaintiff's claim should be pleaded. It may be that it was had in mind by the parties that the proceedings should continue on pleadings. The consent orders and directions were silent on this point. In addition they made no express provision limiting what may be alleged in the Statement of Claim. In failing to do so, the defendant may be said to have opened the door to its present problems. 20 If there has been a failure to comply with any of the rules, it may be that s 81 of the Supreme Court Act 1970 has application. In that event, the failure is to be treated as an irregularity. Under that section, the court may set aside inter alia any step taken in the proceedings. The power to set aside is limited by what is said in subsection (3). There is no application to set aside presently before the court. 21 According to old authority of this Court, ( Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 941), Part 15 rule 26 provides a remedy limited to cases where there is a defect in the pleadings. Minds may differ as to the correctness of this decision, but it remains much favoured by the practice books. In this case, whether or not there be any non-compliance with the pleading rules, no such complaint has been made. Further, it needs to be said the provision confers a discretionary power which is to be used in plain and obvious cases only. 22 It would seem that all of the causes of action can be expected to be largely founded on the same evidence. If successful, they may sound differently in damages. There is reference to matters of prejudice in the earlier judgment delivered in these proceedings. Since the delivery of that judgment, the file has been located. There is no evidence of actual prejudice having particular application to the claims founded on negligence and under the Act. Further time has elapsed and presumptive prejudice must be taken into account. 23 Apart from the provisions contained in the rules (inter alia rules 1 and 4 of Part 20), there is a line of authority for the proposition that amendments have a retrospective effect and are backdated to the date of the filing of the original document which it amends ( Baldry v Jackson (1976) 2 NSWLR 415 at 419). This line of authority may not have application, if there has not been an amendment. If that be the case, it may be that the expiry of any limitation period could be pleaded in a defence. If that defence is no longer available to the defendant, new causes of action included in the Statement of Claim may not be doomed to failure. 24 The court is left to resolve a somewhat unmanageable state of affairs. There is uncertainty. A clear and obvious case for relief has not been demonstrated. The defendant bears the onus of satisfying the court of its entitlement to the relief sought. In my view, that onus has not been discharged. 25 The application to strike out part of the Statement of Claim is refused. The defendant is the pay the costs of that application. I reserve the question of costs relating to the matter of particulars. The Exhibits may be returned. **********