The plaintiff chartered the Reefer Badger to carry bagged frozen lamb and mutton from Geelong in Victoria to Aqaba in Jordan. Part of the cargo was damaged by fire while the vessel was still in berth in Geelong. Exactly one year later, the plaintiff instituted proceedings against several parties, including the owner of the ship. The action was framed as one in negligence and breach of statutory duty but there was no claim against the shipowner under the bill of lading contract. Four and a half years later, the plaintiff sought leave to amend its statement of claim to add a claim against the shipowner on the bill of lading. The shipowner opposed the plaintiff’s application on the basis that the plaintiff’s claim under the bill of lading had been extinguished by the Hague Rules, Art. III, r. 6. Hayne, J., of the Supreme Court of Victoria, dismissed an appeal from a Master’s decision refusing leave to amend the statement of claim; the plaintiff appealed again to the Victorian Court of Appeal.

Hayne, J.’s judgment was concerned mainly with the question whether the Rules of the Supreme Court of Victoria, O. 36.01 and the Limitation of Actions Act 1958 (Vic), s. 34(1) have the effect that the amendment proposed by the plaintiff would relate back to the date of institution of the proceedings, rather than taking effect from the date of the amendment. Not surprisingly, much of the argument before the Court of Appeal was concerned with the same point, on which there is a considerable divergence of judicial opinion. However, the Court of Appeal ultimately took the view that the case could be determined on a completely different ground, which was that the plaintiff’s original action against the shipowner alleging negligence and breach of statutory duty amounted to “suit” for the purposes of Art. III, r. 6, thereby preventing the one-year time bar in the bill of