PSL Industries Ltd & Anor v Simplot Australia Pty Ltd

(2003) 7 VR 106; [2003] VSCA 7

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Amendment to pleadings
4. › Amendment claiming new cause of action after expiration of limitation period
5. › Whether court has discretion to allow amendment
6. › Whether Victorian procedural provisions apply to claims under Trade Practices Act 1974 (Cth)
7. › Limitation of Actions Act 1958 (Vic), s 34
8. › Rules of Court, r 36.01(6)
1. Constitutional Law (Cth)
2. › Inconsistency between Commonwealth and State laws
3. › Section 109 of the Constitution
4. › Whether limitation period in s 82(2) of Trade Practices Act 1974 (Cth) inconsistent with State procedural provisions permitting amendment of pleadings after expiry of limitation period
5. › Whether Commonwealth law 'covers the field'
1. Constitutional Law (Cth)
2. › Federal jurisdiction
3. › Judiciary Act 1903 (Cth), s 79
4. › Application of State laws as surrogate Commonwealth laws
5. › Whether Commonwealth law 'otherwise provides'
6. › Whether s 82(2) of Trade Practices Act 1974 (Cth) provides 'otherwise' for purposes of s 79
7. › Trade Practices Act 1974 (Cth), s 82(2)
8. › Judiciary Act 1903 (Cth), s 79
1. Limitation of Actions
2. › Nature of limitation period
3. › Whether limitation period bars remedy or extinguishes right
4. › Trade Practices Act 1974 (Cth), s 82(2)
5. › Fair Trading Act 1985 (Vic), s 37(2)

Quick Take

Section 82(2) of the Trade Practices Act 1974 (Cth) bars the remedy but does not extinguish the underlying right, and accordingly State procedural provisions permitting amendment of pleadings to raise new causes of action after expiry of the limitation period are not inconsistent with s.82(2) for the purposes of s.109 of the Constitution, nor does s.82(2) provide 'otherwise' for the purposes of s.79 of the Judiciary Act 1903 (Cth). Rights under the Fair Trading Act 1985 (Vic) that had not been extinguished at the time of its repeal were preserved as 'accrued rights' under s.14(2)(e) of the Interpretation of Legislation Act 1984 (Vic).