FEDERAL COURT OF AUSTRALIA

Blown Plastics Pty Ltd v Bayer Australia Ltd [2010] FCA 19

THE COURT ORDERS THAT:

1.         The applicant be granted leave to file and serve an amended statement of claim and an amended application, within two days.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an application by the applicant in this proceeding to amend its Application and Statement of Claim. The critical issue on the application to amend is the date upon which the amendments are to take effect. The applicant asks that the amendments take effect from the date upon which the proceeding was commenced, namely, 21 August 2009. The parties are agreed that that will be the effect of a grant of leave to amend without qualification. The respondent does not oppose the grant of leave to amend, but it seeks a condition that the amendments operate only from the date it was first notified of the proposed amendments, namely, 1 December 2009. It seeks such a condition so that it may raise a limitation defence in relation to any damage claimed by the applicant which accrued after 21 August 2003 but before 1 December 2003.

2                          The applicant’s claim relates to the supply to it by the respondent of a quantity of polycarbonate resin in late August 2003. In its existing Statement of Claim, the applicant alleges that the polycarbonate resin was contaminated and was not fit for the purpose (made known to the respondent) of the manufacture of bottles for use by producers of spring water and other beverages. The applicant alleges breach of contract, breach of a duty of care and a breach of an obligation of reasonable fitness for the purpose implied into the contract of supply by s 71(2) of the Trade Practices Act 1974 (Cth) (“TPA”).

3                          In the proposed amendments, the applicant abandons the claim for breach of an implied condition of reasonable fitness for purpose, and instead it makes various allegations of contraventions of s 52 and s 53 of the TPA. It is alleged that the respondent made various representations to it that constitute misleading or deceptive conduct or are false. Under s 82(2) of the TPA, there is a six-year time limit after the cause of action accrued for such claims.

4                          The respondent wishes to preserve its right to plead in defence of the claims of alleged contraventions of s 52 and s 53 of the TPA that, as to any loss or damage which occurred before 1 December 2003, the cause of action is barred by s 82(2). It does not argue that the Court does not have power to allow the amendment to take effect from the date the proceeding was commenced. Clearly, the Court does have such power: Federal Court of Australia Act 1976 (Cth) s 59(2B) and Federal Court Rules O 13 r 2(3) and (7). Nor does the respondent argue that the amendments do not fall within O 13 r 2(7)(a); it is accepted by the respondent that they do. The respondent submits that the Court, in the proper exercise of its discretion, should only allow the amendments on condition that they take effect from 1 December 2009.

5                          The applicant has not, as the respondent pointed out, provided any explanation for the failure to plead the contraventions of s 52 and s 53 of the TPA when the proceeding was first commenced. On the other hand, the delay in bringing forward the amendments is not substantial. The respondent has not identified any prejudice to it if the amendments take effect from the day the proceeding was commenced other than the loss of the limitation defence. The absence of prejudice to the opposing party in this sense is a significant consideration: White v Eurocycle Pty Ltd (1995) 64 SASR 461 at 470 per Duggan J (with whom King CJ and Nyland J agreed); Mullett v Gabriel (1989) 52 SASR 330 at 335 per O’Loughlin J. The existing Statement of Claim makes a claim, based on breach of contract and the commission of a tort, for loss and damage during the period from 21 August 2009 to 1 December 2009 and that claim will remain whatever order I make on this application. Having regard to these matters, and, in particular, to the absence of the type of prejudice to which I have referred, and to the authorities, I think it is appropriate to allow the amendments to take effect from the date the proceeding was commenced.

6                          I will grant the applicant leave to amend in terms of the Amended Application and Amended Statement of Claim.

Associate:

Dated:         27 January 2010