SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 4153 of 1999
| AGTRACK (N.T.) PTY. LTD. (T/A SPRING AIR) | |
| Appellant | |
| v. | |
| ANN CHRISTINE HATFIELD | Respondent |
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JUDGES: | ORMISTON and CHERNOV, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 22-26 July 2002 | |
DATE OF JUDGMENT: | 28 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 6 | |
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COURTS – Practice – Amendment of pleadings – Application after expiry of statutory limitation period – Claims for death of spouse arising out of intra-territory aircraft accident brought originally in negligence and breach of statutory duty – Claim only available pursuant to Part IV of Civil Aviation (Carriers Liability) Act 1959 (Cth) – Right said to be extinguished under s.34 – Pleading of cause of action insufficient to bring it within Civil Aviation (Carriers Liability) Act – Application to amend to add jurisdictional facts and to identify Act under which claim brought – Effect of O.36.01(6) of Supreme Court (G.C.P.) Rules – Effect of s.34 of Limitation of Actions Act and/or s.48A of Limitation Act 1981 (N.T.) – Whether those rules and sections inconsistent with s.34 of Civil Aviation (Carriers Liability) Act within the meaning of s.109 of the Constitution – Application of s.79 of Judiciary Act 1903 (Cth) – Whether the said rules and sections irreconcilable with s.34 of Civil Aviation (Carriers Liability) Act for purposes of s.79 – Effect of amendments – So-called doctrine of “relation back” of amendments – Nature of “extinguishment”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr N.J. Young, Q.C. and | Norton White |
| For the Respondent | Mr A.G. Uren, Q.C. and Mr P.F. O’Dwyer | Slater & Gordon |
ORMISTON, J.A.:
The appellant by its argument would seek to breathe new life into Maitland’s well-known aphorism: “The forms of action we have buried, but they still rule us from their graves.”[1] It asks the Court to hold that, because the respondent in her statement of claim failed to assert that the appellant was liable to her pursuant to Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (“the Act”) in respect of her husband’s death resulting from the crash of an aeroplane in the Northern Territory in 1997, no amendment could be made beyond the limitation period fixed by that Act, so as to amend her statement of claim to allege that liability, although the facts to be relied on remained essentially unchanged.[2] That Part creates a right to recover up to $500,000 damages for losses resulting from injury or death caused by interstate or intra-territory commercial flights. The facts to be pleaded and established for that purpose are simple, requiring no proof of negligence or breach of contract or any other specific duty. Unfortunately, when the respondent first sought to bring proceedings in respect of her husband’s death on such a flight, her advisers overlooked[3] the appellant’s liability under the statute and brought an action in which the endorsed statement of claim made allegations described only in terms of negligence and breach of contract but made no reference to the liability created by Part IV of the Act. After the statutory two year limitation period[4] had expired, the appellant’s solicitors wrote to the respondent’s solicitors pointing out that the respondent’s claim was “misconceived” in that the liability created under s.28 of the Act was, by s.35 of the Act, imposed “in substitution for any civil liability of the carrier under any other law”, so that the respondent’s claim in negligence and breach of contract was not maintainable. Moreover, when the respondent sought to amend her statement of claim by asserting the appellant’s liability under Part IV of the Act, together with some minor tidying up of the form of the allegations in the former statement of claim, the appellant asserted that her claim was barred, indeed “extinguished”, by reason of s.34[5] of the Act so that no amendment of her claim could then be made and that in consequence her action should be dismissed or permanently stayed.
[1]At p.2 of The Forms of Action at Common Law by F.W. Maitland (first published separately 1936). The work was originally published in 1909, three years after the author’s death, but it was in fact seven lectures given at Cambridge during his years there from 1884. See per Gummow, J. in Scott v. Davis (2000) 204 C.L.R. 333 at 385 para.[160] and cf. the recent wry comment of McHugh, J. in Western Australia v. Ward [2002] H.C.A. 28 at para.[473].
[2]No facts were altered in the proposed amendment, though a few minor facts had to be added to show why Part IV of the Act applied. See below paras.[10]-[19].
[3]If one were to ignore any claims to expertise in personal injury claims they might make, it is perhaps not entirely surprising that the precise nature of liability under the Act and its exclusion of tort liability (under s.37) were not easily discovered, for none of the standard Australian tort textbooks makes these matters clear: see Fleming on Torts (7th and 8th eds.); Trindade and Cane: Law of Torts in Australia (3rd ed.), and Balkin and Davis: Law of Torts (2nd ed.).
[4]See s.34 of the Act.
[5]Section 34 reads:
“The right of a person to damages under this Part is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination;
(a)the date on which the aircraft ought to have arrived at the destination; or
(b)the date on which the carriage stopped;
whichever is the later.”
One might have thought that such a simple amendment could have been effected without difficulty inasmuch as the appellant must have been fully aware of the circumstances surrounding the claim, at least by the time that the original writ was served, and it would likewise have been fully aware that the only liability the respondent could enforce against it was under Part IV of the Act, so that the proposed amendment could in no way have taken it by surprise, nor in any way have disadvantaged it. Nevertheless, the apparently simple process of amendment has been bedevilled by the most abstruse arguments as to the nature and effect of amendments, their potential relation back to the issue of process, the form and effect of limitation provisions in statutes, the effect of Order 36.01(6) of the Victorian (or, possibly, the Northern Territory) Supreme Court (General Civil Procedure) Rules 1996 and the effect of s.34 of the Limitation of Actions Act 1958 (or, more likely, of s.48A of the Limitation Act 1981 of the Northern Territory) on limitation periods
prescribed by Commonwealth statutes such as s.34 of the Act[6], on the extent to which those rules and sections are “picked up” by s.79 of the Judiciary Act 1903 (Cth) and whether, by reason of s.109 of the Constitution of the Commonwealth (or the equivalent rule applying to territory legislation), those rules and those sections are invalid or ineffective to the extent that they qualify the alleged right or immunity of the appellant under s.34 of the Act. For that purpose it was thought desirable that, immediately after the hearing of argument in the present appeal, argument should also be heard in the appeal in PSL Industries Ltd. & Ors v. Simplot Australia Pty. Ltd., in which almost identical issues are raised save that it concerns the kind of limitation prescribed by s.82(2) of the Trade Practices Act 1974 (Cth) and where, it must be conceded, the amendment sought out of time by the respondent in that appeal went beyond the mere failure to describe or identify the appropriate cause of action. The appeals were therefore heard together, with the assistance (or otherwise) of about seven lever arch files of authorities directed to these issues. Consequently what I say for the purposes of the judgment in this appeal will also be relevant to, though by no means determinative of, the issues raised in the PSL Industries appeal.
[6]The reference, as the reference to “the Act” should make clear, is to s.34 of the Civil Aviation (Carriers’ Liability) Act 1959. Whenever s.34 of the Limitation of Actions Act is mentioned below, a reference to the latter Act will be included.
The respondents in both appeals were successful in their applications to amend brought in the Trial Division. In fact Ashley, J. was the judge who decided each case and he followed in the PSL Industries case, so far as relevant, his legal conclusions in the first case, namely that brought by the present respondent. It will be necessary to return to some of his Honour’s reasoning but in substance it may be said that he reached his conclusions primarily because he held there was no true inconsistency between the legislation of the relevant State and that of the Commonwealth, for he said that the effective basis for the amendments in each case was that, by reason of a principle or rule of the common law, the pleadings as amended took effect from the date of the issue of the proceedings, not from the date of amendment, and it was thus that principle which enabled the plaintiff in each case to claim that their proceeding had been commenced within time. I am afraid I am not convinced by the precise reasoning of the learned judge in this respect, inasmuch as it has an element of circularity about it, but there lay behind it the germ of a truth which would enable one to say, at least in the present appeal, that his Honour was correct to allow the amendments. It will, however, be necessary to examine some more of the circumstances, and regrettably much more of the law, before finally reaching any such conclusion.
Having regard to the fact that Part IV of the Act imposes on air carriers strict liability for injury or death[7], the relevant facts as to liability may be very shortly stated. The appellant carried on an aircraft charter business and to that end held an Air Operator’s Certificate, which is treated in the Act[8] as a “charter licence”. About 13 August 1997 it entered into an agreement with Stephen James Hatfield[9], the husband of the respondent, to carry him in a Cessna 210 as a passenger on a sightseeing tour, commencing from an airfield in the Northern Territory, over parts of the Territory and the Kimberley, and finishing at a Northern Territory airfield. The following day, during the course of the tourist flight, the aircraft crashed in an accident, as a result of which the deceased died. By reason of her husband’s death the respondent sustained loss and damage of varying but recognised kinds.
[7]See ss.27, 28, 35 and 36 of the Act. This is qualified to the extent only that damages may be reduced on proof by the carrier of the passenger’s contributory negligence: see s.39.
[8]See s.26(1).
[9]Whom I shall call “the deceased”.
It would be amazing if these simple facts could not have been stated succinctly in the respondent’s statement of claim. The only reason they did not take on a form setting them out in consecutive paragraphs in the original statement of claim indorsed in the writ[10] was that, as was fairly admitted, her practitioners did not intend to bring the respondent’s action pursuant to Part IV of the Act and sought rather to found her case on negligence and breach of contract. Consequently, the statement of claim so indorsed took on a somewhat longer form, containing the allegations required to support those causes of action.[11] Ashley, J. held that in this form the material facts necessary to support a claim under Part IV of the Act were not alleged, but that conclusion is challenged (by notice of contention) on this appeal by the respondent. For that reason alone it is necessary to set out sufficient of the original pleading to understand counsel’s contentions, but it is also important to an understanding of what was involved in and the proposed effect of the proposed amendments. Before doing so, I should set out what occurred between the parties which has led to the present appeal.
[10]I assume that it was so endorsed on the writ, for though neither writ nor statement of claim stated that explicitly, as was required under the former Rules of the Supreme Court, it was headed “Statement of Claim” and was “contained” in the writ, in a manner sufficient to satisfy Order 5.04 of the present rules and thus did not require a further statement of claim to be served: see Orders 14.01 and 14.02.
[11]This was set out as Annexure A to the judgment of Ashley, J. but unfortunately the report at (2001) 183 A.L.R. 674 omits that annexure: see at 675; and it is likewise omitted in the report at (2001) 162 F.L.R. 97. Nor is it available in the reports of the case on the Butterworths and databases.
The respondent’s writ was filed on 22 January 1999 and served shortly thereafter. The appellant served a largely uninformative defence on 24 March 1999. In August of that year the respondent’s solicitors served a notice for discovery and a notice to admit certain facts. On 20 August the appellant’s solicitors wrote a letter bringing to the respondent’s solicitors’ attention for the first time their claim that the respondent’s claim was misconceived because the only liability for her husband’s death lay under the Act. There was some delay because apparently that letter was not received by the respondent’s solicitors and a further copy was sent in November 1999. There followed further correspondence of a not enlightening kind but on 18 August 2000 the respondent’s solicitors filed and served a summons seeking in substance that she be granted leave to amend her statement of claim in terms of an amended statement of claim exhibited to the supporting affidavit (set out as Appendix C to the judgment of Ashley, J.[12]), which sought to make relatively brief amendments to the existing statement of claim and to which it will also be necessary to return later. On 29 August the appellant filed and served a summons seeking an order either that there be judgment for the appellant or alternatively that the proceedings be permanently stayed or “struck out”. Both summonses were heard later that year by Ashley, J. It seems that in the course of argument it was common ground that the circumstances of the deceased’s flight satisfied the factual criteria prescribed by s.27(1)(b) or (c) of the act and as such his sole rights were those conferred by Part IV of the Act, and that, unless the respondent could be treated as having already commenced her action, the two year period prescribed by s.34 of the Act had expired. A large variety of issues were raised before his Honour, largely corresponding to the arguments advanced before us. On 6 June 2001 Ashley, J. made orders dismissing the appellant’s summons and, on the respondent’s summons, granting leave to the respondent to amend her statement of claim “generally in the form of the proposed statement of claim”, giving detailed reasons extending over some 39 pages (omitting the annexures). Pursuant to that leave an amended statement of claim in somewhat more elaborate terms than the document put before the judge, although adding little more in substance to the proposed amendments, was served on 19 June 2001. The appellant sought leave to appeal from both orders, and leave was granted by this Court on 20 July 2001.
[12]But again not reproduced in any printed or computer report of the case.
Returning now to the original statement of claim indorsed on the writ, it may be fairly abbreviated in the following way:
“1.At all relevant times the Defendant was carrying on the business of aircraft charter under the name of Spring Air.
2.On or about 13 August 1997 the Defendant … had agreed with Stephen James Hatfield … to carry the deceased … on a sight-seeing tour in a Cessna 210 ….
PARTICULARS
The agreement was oral and was placed between the servants and agents of the Defendant and the deceased …, whereby the Defendant … agreed to take the deceased … on a tourist flight through parts of the Northern Territory and the Kimberleys [sic].
3.On or about 14 August 1997 the aircraft … carrying the deceased and the passengers, crashed (‘the accident’).
4.The accident was caused by the negligence of the Defendant, its servants and agents, including the pilot … [Particulars of negligence were then given in conventional form but referring amongst other matters to ‘taking off from Timber Creek when he ought to have known that he required’ more fuel, ‘failing to use proper procedures to land the plane when it ran out of fuel’ and ‘failing to comply with the provisions of the Civil Aviation Order’.]
5.It was an implied term of the agreement that the Defendant … would take reasonable care for the safety of the deceased … on the said tourist flight (‘the implied term’).
6.In breach of the implied term, the Defendant … failed to use reasonable care in the safety of the deceased … in the conduct of the tourist flight (‘the breach’). [The particulars appended to this paragraph merely referred to and repeated the particulars to paragraph 4.]
7.As a result of the breach and the negligence of the Defendant … the deceased died on 14 August 1997.
8.The plaintiff brings this action as the widow of the deceased for her benefit.
9.As a result of the death of the deceased the Plaintiff has been deprived of the support, maintenance and benefit of services which she received from the deceased … [The particulars gave the conventional particulars of a Wrongs Act claim.]
AND THE PLAINTIFF CLAIMS DAMAGES.”
To this statement of claim the defendant served a bald defence for the most part either not admitting or denying the allegations in the statement of claim. However, it admitted that the Cessna in which the deceased was a passenger crashed, that he died on 14 August 1997, the allegations in paragraph 8, and in particular, as to paragraph 1, it admitted “that it was the holder of an Air Operator’s Certificate authorising charter operations and carried on business as alleged in paragraph 1”. To that extent it appears that it has never been in issue that the appellant holds the relevant certificate authorising charter operations, which are the necessary operations to support a finding that the appellant held a charter licence within the meaning of s.26 of the Act.
By way of demonstrating how few allegations had to be changed to amend the statement of claim to a claim under Part IV of the Act, the originally proposed amended statement of claim, which the judge gave leave to serve, contained only the following changes:
1.To paragraph 1 a new sub-paragraph (b) was added alleging that the appellant “was the holder of an airline licence or charter licence in the course of commercial transport operations”.
2.The particulars to paragraph 2 were deleted (although they were inserted again in the pleading served on 19 June 2001), and the following paragraphs were added:
“2AAt all relevant times, the Defendant was operating the aircraft.
2BAt all relevant times, the deceased was a passenger in the aircraft under a contract for the carriage of the deceased between one place in the Northern Territory and another place in the Northern Territory.”
3.Paragraphs 4, 5 and 6 were all wholly deleted, as they contained the unnecessary pleas of negligence and breach of contract.
4.Paragraph 7, now renumbered 4, was now shortened to omit the references to negligence and breach of contract, and substituting the words “the accident” so that it now read: “As a result of the accident, the deceased died on 14 August 1997”.
5.A new paragraph 5 was added asserting the statutory liability of the appellant, in conformity with the requirements of Order 13.02(1)(b) of the Supreme Court Rules in this form:
“The Defendant is liable to the Plaintiff for damages for the death of the deceased pursuant to the provisions of s.28 of [the Act].”
6.Paragraphs 8 and 9 were merely renumbered as paragraphs 6 and 7 but with the addition to the allegations formerly in paragraph 9 of this allegation: “The deceased’s personal representative has incurred expenditure associated with the death of the deceased.” There was a consequential alteration to the particulars stating that particulars of funeral and other expenses would be provided before trial.
It may be noted that not a single fact was changed and that the “new” facts added were essentially jurisdictional facts, not facts which went to describe the accident or the injuries.
Sufficiency of original statement of claim and nature and effect of amendments
(i)Whether original statement of claim sufficient to support claim under Part IV of the Act
It is necessary to begin with an argument of the respondent, expressed in her notice of contention, that the original statement of claim pleaded sufficient facts to establish a cause of action in the plaintiff under Part IV of the Act, for, if that be answered affirmatively, none of the other issues will strictly arise, although for a number of reasons it would be necessary to address them. The argument is simple but did not appeal to the learned judge at first instance. It claims that all the material facts required to prove the respondent’s case against the appellant under the Act were alleged in substance in the statement of claim and nothing more needs to be proved to make out her case under Part IV. If there be technical deficiencies, none of the omitted matters are material facts of any consequence, certainly none could be in contention and at most would go to make out the conditions necessary to establish the plaintiff’s right: cf. O.13.05.
The simple facts set out above,[13] if pleaded, would have been sufficient to support a claim for damages pursuant to Part IV of the Act. They would constitute all the material facts and the only other requirement under the Supreme Court (Civil Proceedings) Rules, admittedly here not carried out, is that “where any claim … of the party arises by or under any Act, [the pleading shall] identify the specific provision relied on”: see O.13.02(1)(b). Whether that was an irremediable defect remains to be seen, the appellant asserting that the writ and indorsed statement of claim gave it no notice that the respondent sought to enforce a liability under the Act. Moreover, the learned judge said that, in addition, the following facts had to be asserted and made out to establish such a claim, but which he concluded had not been sufficiently alleged:
“(i)that the Defendant was the holder of [a] … charter licence for the purposes of Part IV of the … Act;
(ii)that the deceased was a passenger carried under a contract of carriage by the defendant as a holder of such a licence in the course of commercial transport operations either between a place in a territory and a place in Australia outside that territory, or between two places in a territory;
(iii)that the deceased’s death resulted from an accident which took place on board the aircraft;
(iv)that the plaintiff was a member of the deceased’s family who sustained financial damage by reason of his death …”
[13]In para.[4].
As to these allegations the learned judge said that fact (i) was not satisfied although he conceded that the holding of the necessary licence was “perhaps … implicit” in the allegation made in paragraph 1 of the original statement of claim. To my way of thinking it was sufficiently implicit in the allegation in that paragraph that the appellant was “carrying on the business of aircraft charter”, so implicit that the appellant’s one responsive paragraph of its defence conceded that it was “the holder of an air operator’s certificate authorising charter operations”. That concession, by reason of the definition of charter licence in s.26(1) of the Act, meant that the appellant was the holder of such a licence.[14] Thus, although paragraph 1 had not directly asserted the required holding of a licence, the appellant had not perceived that the allegation had any fundamental deficiency, so that, if its plea cannot be described as a true waiver on its part, it meant that the question was no longer in issue between the parties. To that extent the plea rescued the claim from this asserted technical defect.
[14]“Charter licence” is defined as having two alternative meanings, the first referring to a charter licence itself and the second, in para.(b), containing the alternative meaning of “an air operator’s certificate in force under the Civil Aviation Act 1988 authorising charter operations”.
It was next asserted, in relation to fact (ii), that, in the first place, the statement of claim did not “squarely” allege that the deceased had been carried as a passenger by the appellant “in the course of its commercial transport operations”, as defined and as required by s.27(1) of the Act. But the definition requires only that the “operations” are those in which “an aircraft is used, for hire or reward, for the carriage of passengers or cargo”. That is simply satisfied by the allegation that the company was carrying on the business of “aircraft charter”. It is not the specific flight that had to be for reward,[15]; rather it was “the operations” as a whole which had to be so characterised. An allegation that the appellant carried on a charter business, as appeared in paragraph 1, was sufficient, so long as the particular flight was a “carriage” “in the course” of those operations and that was satisfied by the allegation in paragraph (2) that the deceased “had agreed” with the appellant that he and other passengers be carried on a sight-seeing tour.
[15]The “contract for the carriage of the passenger” required by s.27(1) includes, according to the definition of “contract” in s.26(1) “an arrangement made without consideration”.
It was secondly said, in relation to fact (ii), that it was not alleged that the contract of carriage satisfied the geographical requirements set out in the four paragraphs set out at the end of s.27(1), so as to bring the flight within Part IV of the Act. To satisfy those requirements the flight could have been either an interstate flight, or an intra-territory flight, or a flight between a territory and another place in Australia, or an international flight from Australia to which Parts II, III and IIIA of the Act do not apply. For this purpose the particulars of paragraph 2 may be looked at, though ordinarily particulars should not form part of the allegations of material fact: see Bruce v. Odhams Press Ltd.[16] and Rubinstein v. Truth & Sportsmen Ltd.[17] Now, however, by O.1.13(1), “pleading” is defined as including the “particulars of any pleading”. Although inclusion of material facts in particulars is to be deprecated as a matter of form, it has become accepted that from time to time material facts will be found only in particulars and, having regard to the present definition, it is ordinarily not appropriate to strike out a paragraph on this basis alone: cf. Beach Petroleum N.L. v. Johnson[18]. Here the place of the flight was sufficiently defined by reference to the particulars to paragraph 2 which alleged that the flight was to be “through parts of the Northern Territory and the Kimberleys”, i.e. through the Northern Territory and one state. Admittedly the starting and finishing points of the flight are not stated and this would have been important if the flight had commenced within one of the states, for it may then have been an intra-state flight.[19] Here, it would have been clear enough that the flight began within the Northern Territory, to which Part IV applies exclusively, and was not the subject of any state Acts imposing liability for intra-state flights. The fact would have been well-known to the appellant as defendant to the proceeding. Undoubtedly, it could have been more clearly expressed. Moreover, the particulars of negligence to paragraph 4 also alleged inferentially that one of the landing places during the flight was Timber Creek in the Northern Territory and that, by reason of the provisions of s.s.(3) of s.27, meant that Timber Creek was one of the finishing and starting points of the flight, even if one were to assume, as I would not, that the flight commenced outside the Territory.
[16][1936] 1 K.B. 697.
[17][1960] V.R. 769.
[18](1991) 105 A.L.R. 456 at 466 per Von Doussa, J.
[19]Cf. Air Link Pty. Ltd. v. Paterson [2002] N.S.W.C.A. 85 where, though the flight relied upon was pleaded as having taken place within New South Wales, in fact it had commenced in Queensland, thus bringing into operation Part IV of the Act.
Then it is said, as to fact (iii), that there was a failure to allege “squarely” that the death of the deceased resulted “from an accident which took place on board the aircraft”, as is required by s.28. Here, however, sufficient is alleged even if those words have not been used. Paragraph 3 alleges that the aircraft carrying the deceased crashed. Thereafter, after the irrelevant allegations of negligence and breach of contract, paragraph 7 alleges that the deceased died the same day, as a result of the negligence and breach of contract. That negligence and breach of contract, nevertheless, all related to the flight of the aircraft, so it is implicit that the crash caused the death and that there could have been no other physical cause. On its face the absence of any reference to the accident taking place on board the aircraft might seem a relevant omission but it is not. The injury or death is not required to take place on board; not surprisingly, it is only the accidental event which must take place on board, i.e. that which “results” in injury or death must be an event which has occurred on board. “Accident”, whatever it may mean elsewhere, has been defined where found in the relevant treaty provisions, especially Article 17 of the Warsaw Convention, which has been treated as an analogue for liability under s.28 of the Act,[20] as requiring only that the cause of the passenger’s injury is “an unexpected or unusual event or happening that is external to the passenger”: see Air France v. Saks[21], as approved and adopted in Morris v. KLM in both the Court of Appeal and House of Lords.[22] Thus the injury to the passenger does not have to occur on board the aircraft, only the incident which gives rise to the injury. If it were otherwise, a passenger falling from an aircraft could not recover, nor one lying on the ground who is injured by reason of an explosion following a crash. In many cases, of course, the precise circumstances resulting in death (and sometimes injury) cannot be discovered but that would not lead to absence of liability. All that is required is that an accident should have taken place on board the aircraft, so that the injury or death must flow from an event connected with its flight, and not from any extraneous cause. So understood allegations of a “crash” and death are sufficient to satisfy s.28. There is no substance in the objection.
[20]See the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 and also the Warsaw Convention as amended at The Hague (1955), in each of which Article 17 is identical, as set out and adopted in Schedules 1 and 2 to the Act.
[21](1985) 470 U.S. 392 at 405.
[22]See, in the Court of Appeal, per Lord Phillips, M.R. [2002] Q.B. 100 at 109-110 paras.[16]-[26] and in the House of Lords, [2002] 2 W.L.R. 578 at 603 para.[71] per Lord Hope and at 620 para.[134] per Lord Hobhouse.
Little need be said as to fact (iv). Sub-section (3) of s.35 states that a claim under Part IV arising out of death is enforceable primarily “for the benefit of such of the members of the passenger’s family as sustained damage” and s.s.(5) includes a “wife” (sic) within that expression. The original statement of claim, of course, described the plaintiff as the passenger’s “widow” and her loss was expressed in the conventional terms applicable to a Wrongs Act claim. There can be no doubt that a “family” member was alleging that she had suffered damage. The difference is essentially only one of form.
Finally, it is said, as is obvious, that the original statement of claim contained no reference to Part IV of the Act. If a claim “arises by or under any Act”, O.13.02(1)(b) requires the pleading to “identify” the specific provision relied upon. In a sense this is the most serious of the defects alleged by the appellant in that there has been a direct breach of the requirements of the Rules. It is also correct to say that this was no mere oversight inasmuch as it is conceded that the respondent’s advisers were ignorant of the provisions of the Act and of the effect of s.35(2) of the Act which states that the statutory liability is “in substitution for any civil liability” of the appellant as a carrier under any other law. On the other hand, the requirement of the Rule merely ensures that a defendant is made aware of the statutory basis of any claim made against it, if it be founded upon statute. The Rule was added in 1986 to overcome the requirement that only the material facts need be pleaded, not any legal conclusions, nor any statutory requirements. In many cases it is only fair that a plaintiff identify the statute upon which it seeks to rely inasmuch as defendants may be ignorant of obligations imposed by statute, especially in this era of constantly changing statutory law.
Here, however, a carrier such as the appellant must have been well aware of the provisions of Part IV of the Act, and any other relevant statutory provisions, for, at the least, those obligations would necessarily go to the kind of insurance cover which an aircraft operator such as the appellant had to take out, even if it were otherwise unaware of its obligations. Consequently, if all the facts were otherwise properly contained in the statement of claim, there would ordinarily be little reason why an amendment should not be permitted to satisfy the rule. It would thus merely characterise a liability which the facts would otherwise establish. Of course, in the present case the time limit imposed by s.34 of the Act has expired and so a question arises as to whether an amendment should be allowed to identify the cause of action upon which the respondent would now seek to rely. Before turning to the question of amendment, however, it must be said that it would be remarkable if a party intending to sue in respect of Part IV liability would be refused leave to amend because of a technical failure to comply with O.13.02(1)(b) and it would be equally remarkable if an action with such a deficiency could be finally stayed or judgment given for a defendant because of that deficiency. The omission, therefore, in my opinion is one which ought not in itself to prevent amendment, as Ashley, J. held, and the appellant’s case thus depends upon showing either a lack of intent to sue, which must be a doubtful basis, or a failure generally to allege the necessary facts to support a claim under Part IV, which must depend upon the matters described above[23] in dealing with facts (i) to (iv).
[23]See paras.[12] to [16].
The question remains whether, taken as a whole, the original statement of claim pleaded the material facts, or sufficient of them, to sustain a cause of action under Part IV of the Act. There can be little doubt that a number of the allegations were imperfectly made, but are these defects such as to deny the respondent the right to rely on the allegations to support her claim under the Act? In many cases defects in expression would so obscure a plaintiff’s claim that it would be unfair to a defendant to allow the plaintiff to rely on the remnants of a claim directed to other causes of action. On the other hand, facts required to establish liability under Part IV are so simple, being effectively based on a principle of liability without fault, that a defendant such as one who conducts an air charter business ought immediately to have recognised that sufficient had been alleged to show that it was liable to the plaintiff, if the facts were proved at the trial. It is that simplicity which makes this an exceptional case and inclines one to treat the imperfections of the original claim as irrelevant to the appellant’s fundamental liability, whatever was the original intent of the pleader. It cannot have been difficult for the appellant to see that facts had been here alleged which would have brought the respondent within the simple requirements of Part IV. Can it, nevertheless, be said that the failure to identify her claim as coming within Part IV, essentially because her advisers were unaware of the cause of action, denies her the right now to pursue that claim? Again, in many cases such an oversight would make it hard to impose on a defendant a liability for which no direct claim was originally made. Moreover, the simplicity of the requisite material facts suggests that the appellant would always have known that, once the elements of a Part IV claim were understood by those advisers, the respondent would seek to pursue that claim. It is of peculiar significance here that s.37 makes the rights under Part IV exclusive of all other possible heads of liability. No defendant could have been under any misapprehension that a plaintiff, once advised of this fact, would not wish to pursue a Part IV claim. There could have been no other claim which the respondent or any other plaintiff in her position might pursue.[24] Not only could the appellant have been in no way confused as to what would be the respondent’s claim when fully informed, but it could never claim to have wasted its resources on defending causes of action which were so clearly not maintainable against it. It would, in practical terms, be a Part IV claim or nothing which would proceed to trial. The unnecessary elements pleaded in the statement of claim could easily be put aside.
[24]Cf. the discussion of similar facts by Moffitt, P. in Proctor v. Jetway Avaiation Pty. Ltd. [1984] 1 N.S.W.L.R. 166 at 169.
The appellant says, however, that it was entitled to consider its affairs on the basis that no viable claim under Part IV had been made against it. In effect, it could say to its insurer, assuming that it had one, we have been sued by the respondent but she has made no claim under Part IV and so we and you, the insurer, can safely ignore the claims in negligence and breach of contract which are excluded by reason of s.37 of the Act. That, however, would be an unrealistic approach for the appellant, its insurer and their advisers to take since, when first she brought suit, the respondent was well within time and she might well have sought to amend to identify the relevant section under the Act and to pursue that claim. That change of mind and relevant amendment could have taken place either within the time expressly laid down by s.34 of the Act or it might, depending on one’s analysis of the original statement of claim, be also made thereafter. The appellant must have acted upon the assumption that that was a possible course of events and it could not have said that it was lulled into a false sense of security. It could only assert that on one view the two year period under s.34 had expired, but it could not have been confused or deflected from taking appropriate steps to protect its position because of the respondent’s mistake in formulating her claim. Nor can the appellant fairly say that the respondent has not yet pleaded sufficient of the material facts for her to succeed and might never be able to do so, or to prove them at the trial. Again this might be said to be peculiar to a claim as simple as the present, requiring in essence proof only of the respondent’s suffering loss by reason of her husband having been killed as a result of an accident to an aircraft engaged in air charter operations in a flight commencing in the Northern Territory. The defects in the respondent’s claim analysed above, if defects they truly be, do not require alteration or amendment in any way, they require only minute expansion to make clear facts which could not be controverted.
If all that was necessary was the allegation of the material facts to support the respondent’s cause of action under Part IV of the Act, then there would be much to be said for the conclusion that those facts had been sufficiently alleged, however imperfectly. It does, however, overlook the failure to refer to the statutory basis of liability in circumstances where the failure occurred through ignorance, not mere oversight. At one stage I thought the respondent’s case could be supported by saying that at the end of the day all that had to occur was that the Court should properly characterise the nature of her claim and that would not require amendment, merely a finding based on that characterisation and an incidental finding that the stated claims in negligence and breach of contract could not succeed. It may indeed be seen to be a technical difference in the kind of claim made. If the point were taken at the end of the trial, much could then be said for resolving the dispute between the parties by reference to the real issue between them, not by reliance on a mere technicality. Thus it has been said by appellate courts on many occasions that, in the first place, they will not allow a plaintiff to succeed on a case different from that argued below, if the new cause of action could well have led to different evidence being given or the existing evidence tested in different ways, for that would be so unfair to the other party as to preclude the appellate court from dealing with it on a new basis. On the other hand, “where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point”: see Water Board v. Moustakas[25] and the cases cited in Williams Civil Procedure Victoria[26]. In the latter class of case, the High Court has seen no unfairness in certain circumstances in abolishing existing causes of action[27] or in identifying new causes of action[28], the proper characterisation of the parties’ rights and duties being seen to be the essential question. Whether these considerations are relevant where there has been an error by a party’s advisers may be another matter.
[25](1988) 180 C.L.R. 491 at 497.
[26]At para.64.01.365.
[27]Such as the right to make a claim under the rule in Rylands v. Fletcher.
[28]Such as the right to sue highway authorities for non-feasance.
There were a number of authorities upon which the learned judge relied in order to reach the conclusion that the original statement of claim was insufficient but I am not confident that any of them were so closely analogous to the present claim as to provide a reliable guide to the decision in this case. The only authority which was truly close to the present in most necessary respects was a decision of the Court of Appeal of New South Wales given recently in Air Link Pty. Ltd. v. Paterson[29]. That was again a case in which the liability, if any, arose under Part IV of the Act, this time by reason of the fact that the injury was suffered in an interstate flight. The statement of claim, briefly outlined in the judgment of Sheller, J.A.[30], was also drawn under the unfortunate misapprehension that the plaintiff had a right to sue in negligence and breach of contract. For that reason it was likewise imperfectly pleaded as a claim in strict liability against the airline and it had two further related defects, one in that it claimed that the defendant was authorised under the Air Transport Act 1964 of New South Wales to operate a commuter and charter airline and secondly, that the plaintiff was a passenger on a flight between Cobar and Dubbo, both towns within New South Wales. There was thus no claim foreshadowed under Part IV of the Act and, if any inference were to be drawn that some alternative strict liability might be enforced, that liability would have rested upon the provisions of the Civil Aviation (Carriers’ Liability) Act 1967 of New South Wales applicable to intra-state flights. Sheller, J.A., with whom both Mason, P. and Beazley, J.A. concurred, held that no claim had been made upon the basis of Part IV of the Act and furthermore that a paragraph in the airline’s defence claiming that the plaintiff’s action was not maintainable should not be struck out. However, as the district court judge had struck out the paragraph in the defence, as it turned out wrongly, that judge had not considered an application for leave to amend the statement of claim and that particular application was remitted to the District Court.[31] In the circumstances I believe the case is so close to the present in its fundamental facts, and in particular the manner in which the plaintiff’s claim was defectively pleaded, that I do not think it desirable that this Court should reach a different conclusion as to whether a claim under Part IV had been properly pleaded, inasmuch as the case is to that extent authority as to the proper application of the Commonwealth Act. For obvious reasons, however, it does not provide authority as to what course should be taken as to amendment in the circumstances.
[29][2002] N.S.W.C.A. 85.
[30]At para.[6].
[31]It therefore provides no direct authority on the issue of amendment in circumstances such as the present.
Consequently, with some reluctance, I feel bound to hold that the original statement of claim failed adequately to set out all the necessary allegations supporting the respondent’s claim under Part IV of the Act and it will thus be necessary to turn to the question of amendment.
Upon the basis that the original statement of claim did not sufficiently state a relevant cause of action, namely one under Part IV of the Act, the appellant also sought an order that the action be dismissed or that it be forever stayed. The conclusion so far reached is not sufficient to justify that drastic remedy, unless it be held that there is no power to amend the statement of claim, in which case it would be futile to allow the proceeding to continue. The latter question remains to be considered. Generally, however, an inadequate statement of claim will not justify an order summarily terminating a proceeding unless it can be shown that no amendment could restore some viable claim. As will be seen, an order dismissing the proceeding cannot presently be justified.
(ii) Whether statement of claim can properly be amended – General
A number of complex issues are raised by the question whether the respondent was entitled to amend her statement of claim in the way that she sought and, for that matter, in the way that she ultimately did. In the first place there are general questions as to the power to amend, the nature of amendment and the circumstances which give rise to the right to obtain an amendment. There are more specific problems in this case, inasmuch as the amendment sought by the respondent was clearly sought outside the time limit for bringing an action imposed by s.34 of the Act, that is, it was sought more than two years from the time the cause of action arose under Part IV by reason of the loss suffered by the respondent in consequence of her husband’s death. It was asserted by the appellant that no such right existed, howsoever the particular limitation affected the respondent’s rights and whether or not a limitation period was imposed under the Limitation Act 1958 of this State or by any other Act, state or federal. The appeal then raises the question of the effect of the amendment to the Rules made in 1986 (both of this state and later in the Northern Territory) and in particular by the making of O.36.01(6) of the Rules and by the passing of that year of s.34 of the Limitation of Actions Act, or, more likely, by the passing of s.48A of the Limitation Act 1981 of the Northern Territory.[32] Finally, it will be necessary to consider the extent to which s.34 of the Act (i.e. of the Civil Aviation (Carriers’ Liability) Act) is inconsistent with the state or territory rules and legislation so as to prevail over them by reason of s.109 (or s.126) of the Constitution and/or whether by virtue of s.79 of the Judiciary Act 1903 (Cth) the provisions of the state or Territory legislation relating to limitations are not reconcilable with s.34 of the Civil Aviation (Carriers’ Liability) Act. A subsidiary question, although one which essentially is not likely to make much difference to the outcome, subject to what appears below, is whether the relevant state or territory legislation is the Victorian legislation or whether it is the Northern Territory legislation, which, however, contains a virtually identical provision so far as limitations are concerned in s.48A of the Limitation Act 1981 (NT), and possibly whether the rules of court of the Northern Territory, which are in fact contained in an identical provision in O.36.01(6) of those Rules, apply.
[32]Section 48A of the Northern Territory Act (inserted by amendment in 1987) would appear to be now the relevant section as, by reason of choice of law rules, the issue of limitation periods is substantive: see John Pfeiffer Pty. Ltd. v. Rogerson (2000) 203 C.L.R. 503.
It is important first to see what the nature of amendment was before the recent legislative changes, for in substance both the Victorian and Northern Territory Rules and the amending sections of the Victorian and Northern Territory limitations legislation were directed to what was described as the “abrogation” of the rule of practice laid down by the English Court of Appeal in Weldon v. Neal[33].
[33](1887) 19 Q.B.D. 394. I have looked also at two parallel but unrevised reports of the case which appear in 56 L.J.Q.B. (N.S.) 621 and 35 W.R. 820 but, although there is some expansion of reasoning in the judgments of both Lord Esher, M.R. and Lopes, L.J., none varies substantially from the authorised report.
(iii) The “rule in Weldon v. Neal”
Some understanding of the history of the “rule” in Weldon v. Neal is important, for its precise scope was, and is in those jurisdictions where it has not been entirely “abrogated”, a matter of some dispute. Some courts, including the members of the Full Court of this state in Cutrona v. Harnischfeger of Australia Pty. Ltd.[34], took a very strict view of what amendments should be permitted which might affect the operation of the Limitation of Actions Act, while other courts, such as the English Court of Appeal in Dornan v. J.W. Ellis & Co. Ltd.[35], took a more benevolent approach. In substance the rule stated that no amendment should be permitted if the effect would be to allow a plaintiff to rely on a cause of action which was statute-barred at the time of the application. In its application there were more subtle nuances, for not every alteration to a former statement of claim was rejected, certainly where the amendments merely altered the non-material particulars of the existing claim, whereas, for the most part, an additional or substituted cause of action, different from one already pleaded, was almost invariably rejected. On some occasions the question arose whether the new or substituted cause of action was merely a new characterisation or categorisation to describe the material facts which had already been pleaded, as opposed to one which altered or added to those material facts.
[34][1977] V.R. 306.
[35][1962] 1 Q.B. 583.
The primary test, however, was, as it still is, that applicable to any application for amendment of pleading, namely, whether it is fair to the other party in all the circumstances to permit the new or altered claim to be made. It was not difficult to say, as courts in all jurisdictions regularly did, that, if (subject to the rules as to joinder of causes of action) a quite different statute-barred cause of action were sought to be added or substituted, it would be so unfair to the defendant that such application ought to be dismissed. A problem could really arise only if the proposed amendment was of a less fundamental character, for then the unfairness might not be so obvious. For better or for worse, when the English Court of Appeal first visited the question in Weldon v. Neal itself, the Master of the Rolls, Lord Esher, with the concurrence of Lindley and Lopes, L.JJ., expressed the Court’s views in apparently rigid terms as follows[36]:
“We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion improper and unjust.”
To this his Lordship allowed only one qualification that “under very peculiar circumstances”[37] a court might have power to allow such an amendment. Of course, it is apparent from a reading of those words that, notwithstanding the courts’ general approach to amendments is that “all reasonable indulgence” with regard to amendments should be given[38], nevertheless prejudice of an irremediable kind would be caused to a defendant if amendments were allowed to “set up causes of action which were not in the original claim and which are now barred by the Statute of Limitations”.[39] Two matters may be noticed from the judgments, one, that what was involved precisely in the setting up of a new “cause of action” was not defined and, secondly, that the vice was seen to flow from an assumption that the amendment, if permitted, would not merely date from the day of amendment but would be treated as having effect from the day the writ was issued. Each aspect will be considered a little further.
[36]At 395.
[37]Ibid.
[38]Weldon v. Neal per Lopes, L.J. at 396.
[39]Ibid per Lopes, L.J.
These aspects and the precise scope of the “rule” in Weldon v. Neal must be examined in order to understand what the amending rule and statutory provision were intended, so it might appear, to achieve. It was a rule of practice, indeed on one view merely a rule as to the exercise of a discretion given under rules of court, intended to restrict the circumstances in which an amendment would be permitted which might affect a statute-barred claim. Although devised at a time when limitation periods were thought to be procedural rules, it had what some[40] thought to be a substantive effect inasmuch as it sought to protect rights and immunities given pursuant to statute. Although it was applied with relative rigour whenever it was thought that the allowing of an amendment to a pleading might seek to bypass the relevant statutory limitation period, the “rule” was not an inevitable consequence of the application of rules of court relating to amendment.[41] That it was not inevitable may best be seen from the discussion of the rule by Jordan, C.J., who delivered the judgment of the Full Court of New South Wales, in Horton v. Jones (No. 2)[42]. From that it may be seen that originally the Court of Exchequer and the Court of Common Pleas had taken a more generous approach to amendments where limitation periods were involved, although the Court of King’s Bench had from a relatively early stage taken a restrictive attitude: see esp. Roberts v. Bate[43]. According to Jordan, C.J. it was this latter approach which prevailed under the Judicature Act system. This part of the reasoning in Horton v. Jones was cited with approval by Owen, J., with whom Kitto and Menzies, JJ. concurred, in Renowden v. McMullin[44].
[40]See, e.g., per Herron, J. in Penrith Municipal Council v. Australian Blue Metal Ltd. [1960] S.R.(N.S.W.) 608 at 615.
[41]However, after its adoption by the English Court of Appeal, it became accepted in many common law jurisdictions, not only those which depended upon Judicature Act-type rules.
[42](1939) 39 S.R.(N.S.W.) 305 at 311-315 and esp. at pp.313-314. The other members of the Court were Halse Rogers and Owen, JJ. See also the discussion by Priestley, J.A. in Proctor at 182, where he emphasised that these questions were “always regarded as rules of practice”.
[43][1837] 6 Ad. & E. 778. The Chief Justice also saw no reason not to apply Weldon v. Neal to New South Wales where to that time the Judicature Act system had not been introduced.
[44](1970) 123 C.L.R. 584 at 612.
Unfortunately, neither Weldon v. Neal, nor, so far as I have been able to ascertain, any of the authorities upon which that decision was based, made clear precisely what amounted to a “new cause of action”. The reasoning of the learned members of the Court of Appeal was very briefly stated in judgments given off the cuff, the substance of which I have just set out.[45] The facts which gave rise to the decision, not often referred to, make it clear why the Court saw prejudice in the proposed amendments, in that the plaintiff sought to add to a claim in slander fresh claims in assault and false imprisonment which were barred at the time of the application.
[45]Lindley, L.J. said that he agreed with Lord Esher, M.R., as he did not think it “just” to “deprive [the defendant] of his defence under the Statute of Limitations”: at 395-396.
It was thus only over the next 90 years that the particular scope of the “rule” was worked out so that, at the end of that period, doubts as to its fairness and desirability led to changes in the amendment rules in virtually all jurisdictions. The primary difficulty was seen in determining what amendments to factual allegations gave rise to a new cause of action, whereas, for the most part, any change to the characterisation of the cause of action in law, albeit resting on the same facts, was almost invariably categorised as a new cause of action bringing the rule into operation. Thus, on the one hand, it was said by Walsh, J.[46] in O’Grady v. Botany Wools (Australia)[47], a judgment which was firmly approved by the Full Court in Cutrona[48] and by Owen, J. on behalf of the majority in the High Court in Renowden[49], that the rule applied where an amendment would introduce a new cause of action, but, on the other hand, it would not apply “when it would do no more than state in a different way, or give different or additional particulars in respect of, the same cause of action”.[50] Furthermore, Walsh, J. also laid down, in terms cited with approval by the Full Court in Cutrona[51], a rigid test, as follows:[52]
“For the purpose here relevant, the addition of a statutory count in an action originally based on common law negligence has been treated as an amendment which introduces a new cause of action. I think this must now be regarded as settled law.”[53]
It is possible, one may concede, that his Honour did not mean to be so restrictive when talking of two causes of action arising out of the same facts, for the facts in O’Grady related to an application to amend to add a claim for breach of statutory duty arising out of additional circumstances said to be in breach of certain regulations under the Scaffolding & Lifts Act 1912 (N.S.W.).
[46]With whom Asprey, J. concurred.
[47](1964) 64 S.R.(N.S.W.) 359 at 364.
[48]Cutrona, esp. at 310-311.
[49]Renowden at 613.
[50]O’Grady at 364.
[51]At 310-311.
[52]O’Grady at 366.
[53]For this he cited in particular Marshall v. London Passenger Transport Board [1936] 3 All E.R. 83.
Whatever was the precise intention of Walsh, J., the Full Court in Cutrona took a similarly restrictive attitude to amendments, in a case where a claim for breach of statutory duty was sought to be added, and for the purpose it relied on O’Grady, together with observations of the majority in the High Court in Renowden and an obiter dictum of Barwick, C.J. in Black v. City of South Melbourne[54]. Regrettably it would seem that the Full Court took the view that it was sufficient merely to know that the amendment contained an additional cause of action, strictly so described, without enquiry as to whether that was supported by the same or different facts. This conclusion follows, I think, from its disapproval of Christadoulopoulos v. Rowntree & Co. (Australia) Pty. Ltd.[55] and the fact that the Court did not consider a further argument whether the amendments there sought involved “an entirely new set of ideas”, for they thought it was unnecessary in the circumstances to reach a conclusion upon that contention.[56] The end result seems to have been that, although some discretion was left to a court where an amendment sought to add new facts but without changing the basis of the plaintiff’s claim, there was in effect no discretion to allow an amendment where it was sought to add a new cause of action, however little the factual foundation of that cause of action varied from one set out in the original statement of claim. The only exception appears to have been “peculiar circumstances”, an expression which has, to my knowledge, never been examined for this purpose.
[54](1964) 38 A.L.J.R. 309.
[55][1971] V.R. 378, where Lush, J. had allowed an amendment which raised a new cause of action only “in the technical sense”: see at 383.
[56]Cutrona at 312.
Although they would appear to deny a right to amendment, the authorities (other than Christadoulopoulos[57]) and the passages in them to which I have referred have not explicitly dealt with a case where the only alteration to a statement of claim was a change or addition to the cause of action without any related alteration in the necessary pleaded facts. It is interesting to note that in the United States[58], although a rule akin to that in Weldon v. Neal and a similar practice as to relation back seem likewise to have been developed, a mere change in the nature of the basis for recovery has generally not been thought to be covered by the rule. For example, in Friedenthal, Kane & Miller: Civil Procedure[59] it is said:
“It is clear that a mere change of the legal theory does not prevent an amendment from relating back. An amendment may shift a case from a tort to a contract theory or vice versa or alter a claim based on common law liability to one having a statutory base. Technical or mechanical tests will not be applied.”[60]
Of course, in many cases the difficulty may be more theoretical than real for it remains a conventional rule of pleading that it is ordinarily sufficient to allege only the material facts without identifying the legal basis upon which the plaintiff asserts liability: see O.13.02(1)(a). Nevertheless, it is permitted now by O.13.02(2)(b) to “plead a conclusion of law”, if that be thought desirable and, although in the simpler claims the latter rule is not frequently resorted to, its use is not an undesirable trend in longer pleadings where a proper understanding of complex facts and allegations may be assisted by an assertion of legal conclusions. In a simple claim such as the present it might fairly be said that the pleader was obliged merely to state the material facts upon which the respondent relied. If so, the respondent’s objective intention might be here relevant, so long as all material facts had been pleaded. The problem was adverted to by Sheller, J.A. in Air Link, citing but distinguishing Wickstead v. Browne[61], although his Honour found there to be a fundamental failure to plead acts supporting liability under Part IV of the Act. It cannot here be said that all the relevant facts have been fully pleaded, so that there remains the question whether an apparent change of characterisation may properly be accompanied by minor changes of fact and circumstance, so long as the essential factual basis is not altered. To that it will be necessary to return below.
[57]This case, and other decisions at first instance, such as Hall v. National & General Insurance Co. Ltd. [1967] V.R. 355, may be treated as having been overruled by Cutrona.
[58]I can speak of U.S. practice only with diffidence.
[59]2nd ed. para.5.27 p.307.
[60]See also 51 Am. Jur. 2d. title: Limitation of Actions para.264 p.620.
[61][1992] 30 N.S.W.R. 1. See Air Link at paras.[27]-[31].
Nevertheless, the uncertainty and then apparent rigidity of the “rule” in Weldon v. Neal led to a good deal of dissatisfaction. In 1971 an experienced judge, Lush, J., in Christodoulopoulos had wended his way carefully through the authorities to reach a benevolent conclusion in a case where the facts relied on were largely unchanged but an additional claim for breach of statutory duty was sought to be added by way of amendment. In Cutrona, however, the Full Court had seen the dicta in the High Court decisions of Black and Renowden as denying any means of reaching a similar conclusion in a case where the plaintiff had made claims in negligence and for breach of a statutory duty imposed by the Lifts & Cranes Act 1958, but sought later to add a claim for breach of statutory duty arising out of the Labor & Industry (Building Industry) (Safety, Health & Welfare) Regulations 1969, notwithstanding the incident causing injury was essentially the same. The dissatisfaction manifested itself in a detailed and interesting article in the Australian Law Journal by Susan Campbell, entitled “Amendments and Limitations: The Rule in Weldon v. Neal”[62], in which a critical analysis was made of the leading cases, especially those decided in Victoria, and a submission made that, if the Victorian practice remained unchanged, a similar provision should be made in the Victorian rules to that then contained in the English Rules of the Supreme Court O.20 r.5, especially paragraph (5), permitting a new cause of action to be added if arising out of the same or substantially the same facts.[63]
[62](1980) 54 A.L.J. 643.
[63]Ibid at p.658.
It was at about the same time that Mr N.J. Williams made a similar proposal to the Rules Committee of this Court and a detailed submission forwarded on behalf of the Committee to the Council of Judges.[64] In essence it was asserted that, although a discretion was fairly permitted as to what new facts might be added as constituting a particularisation of an existing cause of action without departing from it, it was not reasonable to shut out a plaintiff from amending merely because it was desired to place a new or added legal characterisation on facts already pleaded. It was one thing to object to a cause of action being brought out of time dependent on new facts, but quite another to object to a change in form or characterisation of an action otherwise commenced in time, where the fresh claim was directly related to its original subject matter. Prejudice might be obvious in the first case but not in the second. Consequently a discretionary rule such as existed in England or New South Wales should be introduced. Moreover, there was thought at that time to be no essential objection to effecting the change by amending the rules because in Mitchell v. Harris Engineering Co. Ltd.[65] the Court of Appeal had held that a similar rule had been validly passed by the judges in England.[66]
[64]I can speak of this as a member of the Rules Committee at the time, while still a member of the Bar. The matters are recounted only as showing the history of the matter and the issues which were seen to be relevant at the time.
[65][1967] 2 Q.B. 703.
[66]Mitchell was cited with apparent approval by members of the High Court in Bridge Shipping Pty. Ltd. v. Grand Shipping S.A. (1991) 173 C.L.R. 231, esp. at 244, 245, 256 and 259 but, although there was general discussion of the effect of O.36 in that case, it was directed primarily to the power to correct a mistake in the name of a party and not to the present question.
Mr Williams’ paper also referred with approval to the new rules relating to amendment passed in 1970 in New South Wales and a Court of Appeal decision which explained them, namely, McGee v. Yeomans[67]. The gist of the principal judgment in that case given by Glass, J.A. was that the New South Wales Rules had displaced “all the fine spun distinctions which [Weldon v. Neal] engendered”, and that the discretion having been set free “should not again be confined by rigid technicalities”.[68] Some qualifications were later placed on the breadth of those expressions by the Court of Appeal in Proctor v. Jetway Aviation Pty. Ltd.[69]; see also Clutha v. Millar (No. 2)[70]; but the vice which Mr Williams thought desirable to overcome was the application of the rule to new “causes of action”, albeit that proceedings relying on the same or substantially the same facts[71] had been commenced within time. Upon that hypothesis an amendment so made would not be “tantamount to commencing another action”, for the factual subject matter of the claim was already in issue and the defendant had been put on notice of the plaintiff’s claim generally within the relevant limitation period. In essence, that would have been within the spirit of Weldon v. Neal, but for the strict interpretation placed upon it, both in England and Australia. An amendment to the rules could properly overcome that, since it would reopen the discretion only in relation to claims already on foot. This was not the form the amending rule, passed in 1986, ultimately took, different from the form of rule adopted in England and New South Wales, but the history is important to show what was then seen to be the problem and what was sought to be achieved.
[67][1977] 1 N.S.W.L.R. 273.
[68]At 280.
[69][1984] 1 N.S.W.L.R. 165.
[70][2002] N.S.W.S.C. 523.
[71]The language adopted in the then current English and New South Wales rules.
(iv) “Relation back”
One element, indeed some might say the most important element, in this analysis of the rule in Weldon v. Neal, was the assumption that an amendment when made would operate from or “relate back” to the time proceedings had been issued. If that were not the case, (and it was not treated as being so when a party was added), then there could have been no difficulty in making an amendment, for the added cause of action would then date only from the date of amendment and the statutory bar could be pleaded in the ordinary way. It is another question altogether whether the concept of the added or varied claim relating back to the date of issue of process can be characterised as a “principle” of the common law, as the learned judge here held.
Therefore, before further examining the scope of the rule in Weldon v. Neal and of the amending rules and legislation, it is necessary to examine what has been seen to be this corollary, namely the so-called “principle” that, whenever any amendment of the terms of the statement of claim (or other commencing process) is made, it “dates back” to the time the action was issued, in this State when the proceeding by way of writ was filed. This concept seems to have taken on a particular significance for the learned judge in that he used it as the basis for saying that the amendment sought could be justified by reference to this “common law rule” rather than by reference to the power to amend, qualified or expressed as it now is since the 1986 amendments both to the rules and the Limitation Act.
Undoubtedly, the consequence that amendment, once effected, relates back to the issue or filing of process is well accepted: see esp. per Phillips, J.A., with whom Brooking and Charles, JJ.A. concurred, in Anglo-Irish Beef Processors International v. Federated Stevedores Geelong[72] and the authorities therein cited.[73] But what does that statement mean? To my way of thinking it means no more than this: amendment[74] involves making an alteration to an existing document and that document will have come into existence at some time in the past; whoever amends such a document is not normally creating an entirely different document, but is merely effecting a change or changes to that which is already in existence, which itself has a known date upon which it came into effect. One could “substitute” a new document of the relevant kind and that might connote the creation of a document taking effect only at a later date. In fact, as a matter of practice, where some special problem has arisen, occasionally judges have directed that certain amendments to pleadings only take effect as at the date of the making of the amendment, but that ordinarily comes about by a specific order.[75]
[72][1997] 2 V.R. 676 at 680-681.
[73]See also, in the High Court, Wigan v. Edwards (1973) 47 A.L.J.R. 586.
[74]Conventionally (i.e. by virtue of the terms of most relevant rules) the Court does not itself amend a pleading, but merely gives leave to a party to effect the amendment, so the necessary step is taken by the party itself. Ordinarily a court effects an amendment through a court officer only when the document to be amended is an order or some other document brought into existence, by the Court. See esp. r.36.03. Cf. J. Leavey & Co. v. George H. Hirst & Co. [1944] K.B. 24; Louftis v. C. Czarnikow Ltd. [1952] 2 All E.R. 823.
[75]In fact in New South Wales, in cases where amendments add new causes of action, when not dependent upon the same or substantially the same facts, an order may be made “to add or substitute” a claim, but the new cause of action shall be treated as commencing on the date on which the amendment is made: see Part 20 r.1(3A): cf. Part 20 r.4. In this State, though there is no similar rule, similar orders have been made from time to time. But cf. Nesnah Nominees Pty. Ltd. v. Blackwell [1998] VSC 130, though I would not, with respect, necessarily subscribe to the conclusion there reached.
The relation back of amendments is, therefore, hardly to be called a principle or rule, for it is merely the common sense characterisation of what is in fact sought and done. Moreover, if one were to analyse the process more fully, there ought to come a point at which amendment goes beyond merely affecting something already brought into existence or carried out in the past. If the amendment is sufficiently extensive, so as to change the character of the original document, as it were, then it might no longer be merely an amendment of an existing document but the creation of a new and substituted document. That substituted pleading or other document could, if the circumstances were appropriate, take effect at some other date, most obviously the date at which it was substituted, but that might well have other consequences. One would then have to take account of what has been done in the meantime and whether the new document might bring into operation rights and liabilities which differ because of the later date. The problem has most frequently occurred when amending and varying various orders, especially sentencing orders. However, when a civil judgment or order is not merely confirmed or formally varied on appeal, any substituted order (or order “in lieu”) ordinarily takes effect on the date it is pronounced: see Nicol v. Allyacht Spars Pty. Ltd. (No. 2)[76] and Official Receiver in Bankruptcy v. Schultz[77].
[76](1988) 165 C.L.R. 306.
[77](1990) 170 C.L.R. 306 at 317-319.
Enough has been said, I believe, to show that the question of relation back is not a matter of high principle, but one of practice, depending on a practical analysis of what is sought to be achieved. Nothing in the authorities to which counsel were pressed to take the Court provides any further explanation of what is ordinarily treated as occurring, let alone any exposition of fundamental theory as to the reasoning behind the courts’ oft-stated references to it. No explanation of principle can be found in the cases cited by Phillips, J.A. in Anglo-Irish Beef Processors[78], nor in the other cases cited to this Court which included Proctor[79] and the earlier cases of Sneade v. Wotherton Barytes & Lead Mining Co. Ltd.[80], Warner v. Sampson[81] and Baldry v. Jackson[82]. Two cases cited as to the distinction drawn between the amendment of pleadings and amendments to join defendants do give some significant hint as to why it is a matter of practice rather than theory: see Liff v. Peasley[83] and Ketteman v. Hansel Properties Ltd.[84]. There each of the members of both courts were clear in their conclusion that an order amending a statement of claim by adding defendants could operate only from the date such an order was made and could not relate back to the date the writ was issued. The refusal to join parties where the claim would be statute-barred depended upon the “no useful purpose” theory rather than the “relation back” theory but, important though that may be for cases involving the joinder of defendants, it did not expose the relation back practice to any more illumination. Many court rules state that explicitly and I am not persuaded that the decision as to the relevant “theory” necessarily showed that an amendment might not take effect from a date other than that when proceedings began. The “rule” in Weldon v. Neal would certainly appear to have denied a plaintiff the right to make an amendment as to parties which was “back-dated”, for a claim against another defendant could never be assimilated with a claim against the existing defendant in that, as has been held, the new defendant only became a party when served. The added party could not ordinarily be thought otherwise to have notice of the proceeding, so the rule of practice was unequivocal. There was no useful purpose in joining a defendant who would have an answer based on the Statute of Limitations. It seems not to matter greatly that the relation back rule was thought not to be appropriate; rather it was seen to have no practical application where a defendant was being added.[85]
[78]At 680-681.
[79]At 174-175.
[80][1904] 1 K.B. 295 at 297.
[81][1959] 1 Q.B. 297.
[82][1976] 2 N.S.W.L.R. 415 at 419.
[83][1980] 1 W.L.R. 781.
[84] [1987] AC 189.
[85]See also Bridge Shipping Pty. Ltd. v. Grand Shipping S.A. (1991) 173 C.L.R. 231 at 236 per Dawson, J. (in essence concerning amendment of parties).
Interestingly Brandon, L.J. said (obiter) in Liff v. Peasley[86] that there was no reason to quarrel with the proposition that an amendment relates back to the document amended, but that:
[86]At 803.
“This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas or averments made between existing parties in respect of a cause or cause of action already raised.” (Emphasis added.)
In Ketteman His Lordship’s judgment seemed to gain general approval in the House of Lords of which he was by then a member. Of course, the statement begs the question as to what is a new cause of action, but it does seem to provide a rationale for the following statement of American practice contained in 51 Am. Jur. 2d[87]:
“If an amended pleading does not merely expand or amplify the initially filed pleadings, but introduces a new cause of action, one that is different and distinct from the one originally set forth, the amended pleading is equivalent to the bringing of a new action, and there is no relation back to the filing of the original pleading that prevents the Statute of Limitations from running against the new cause of action down to the time that it is introduced by the amendment.”
This statement seems to derive from a number of propositions stated by Holmes, J., on behalf of the U.S. Supreme Court, in New York Central and Hudson River Railroad Co. v. Kinney[88]. Significantly he justified the distinction (and the decision in that case) by saying[89] that “when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist …”. That provides a rationale for the American practice, so far as I understand it, but it does not justify a conclusion that every amendment, once granted, must date back to the issue of proceedings. That practice only permits relation back in certain specified circumstances. It could not justify the order in the present case, unless the amendment did not raise a truly new case. Otherwise the argument is circular, for an order for amendment made beyond the fixed period would always defeat the limitation statute. This was recognised in Weldon v. Neal itself where Lord Esher, M.R. justified the strictness of the “rule” by saying that to grant all amendments outside limitation periods would allow “the plaintiff to take advantage of her former writ to defeat the statute.”[90]
[87]Para.264. This is the passage to which the statement from that work, referred to above at para.[33] as to “merely changing the legal theory”, is added by way of qualification: ibid at p.620.
I should immediately make clear that, if a state or territory statute or rule purported directly to resuscitate an extinguished claim such as one subject to s.34, then it would be clearly ineffective, whether or not one called in aid s.109 of the Constitution (or the parallel inconsistency rule relating to territorial legislation) or whether one asked, on applying s.79 of the Judiciary Act, whether the local limitation regime as set out in statute or rule, was irreconcilable with the terms of the Act as a Commonwealth law. Thus if there was a general state law providing for the extension of all limitation periods, that could not stand with s.34 of the Act. Moreover, although it is not necessary here to decide it, a state or territory provision which purported to excuse non-compliance with s.34 so as to permit the revival of an extinguished claim under Part IV would likewise seem to be inconsistent.
One must be careful, however, about characterising something which is said to be “extinguished”. Colourful words have been used for the concept, e.g., “dead and gone forever”[121], but on other occasions caution as to its real meaning has been expressed judicially, for example by Tadgell, J. in Australian Shipping Commission v. Kooragang Cement Pty. Ltd.[122]. In some cases it has been said that, if it has been introduced as part of a limitation regime, the use of the word “extinguished” does not necessarily exclude the application of the ordinary ameliorative provisions of the same statute, for example the use of the term in s.63 of the Limitation Act 1969 (N.S.W.), as discussed in Proctor. On the other hand very strict effect has been given to the word in cases arising under the Warsaw and other carriage Conventions, which doubtless explains the decision in Timeny.
[121]Per Bollen, J. in Timeny v. British Airways P.L.C. (1991) 56 S.A.S.R. 287 at 301.
[122][1988] V.R. 29 at 37.
On their face there would appear to be a conflict between the New South Wales Court of Appeal in Proctor and the South Australian Full Court in Timeny. Neither case strictly applies here, the former dealing with the provisions of the Civil Aviation (Carriers Liability) Act 1967 (N.S.W.), which applies to aviation accidents on commercial flights within New South Wales, and the latter dealing with an action brought under Part II of the Act which applies to international commercial flights to and from Australia. That particular part of the Act is clearly part of an international scheme which gave effect in this country to the Warsaw and later Conventions. Arguably too narrow a view was, with respect, taken of a court’s powers where such actions are brought, insofar as the convention expressly recognises that local procedural laws will apply to any such proceeding: see Article 28.2. Equally arguably the New South Wales approach, with respect, gave insufficient recognition to the essential effect of extinguishment of a right. Nevertheless the issue here is a narrow one. It is confined to the power of the Supreme Court to allow amendments to pleadings where a plaintiff’s claim is founded on a Commonwealth statute. The New South Wales cases, of which Proctor[123] may be treated as the leading example, depended heavily on the structure and form of the New South Wales Limitations Act. For reasons best known to those who drafted it, every cause of action is treated as extinguished upon the expiry of the relevant limitation period: see s.63. It might appear, from afar, that the ameliorative provisions, for example those that relate to disability and general extension of time, in the New South Wales Act could not work if all claims were treated as dead and incapable of revival at the end of the relevant limitation period. Section 63 has therefore been construed recently by members of the High Court in the Commonwealth v. Mewett[124] as meaning that causes of action are extinguished, subject to the provisions of the very statute which extinguishes the rights, and that has been elsewhere expanded to include extinguishment under other statutes: see Proctor, Nikolay Malakhov, Australian & New Zealand Banking Group Ltd. v. Larcos[125] and Jennings v. Credit Corp Australia Pty. Ltd.[126]. One would be loath to conclude that, merely because the relevant extinguishment flowed from a Commonwealth statute, the same approach could not be applied in a state court where so many ordinary personal injury claims are heard. One would be even more loath to reach that conclusion when one learned that, if the proceeding were brought in the Federal Court, a broad power of amendment is likewise given, notwithstanding the extinguishment prescribed by s.34 of the Act. Of course, this is a narrow point, the power given to the Federal Court under O.13 of its rules being confined to amendment and it says nothing as to extension of time or the like. One may observe, however, at least before all limitation rules became treated as substantive, that one would ordinarily have treated the extension and ameliorative provisions of the local Limitation Act as procedural and as the kind of provisions one would expect to have been “picked up” under s.79 of the Judiciary Act. Certainly the federal Parliament has not thought it necessary to legislate for a similar regime relevant to causes of action arising under Commonwealth legislation. For myself I would prefer, if authority permitted, to consider these provisions of the state Limitation Act, broadly similar to those applied in each state and territory, as consistent with Commonwealth sections laying down a specific limitation period. Moreover one would prefer, even with sections drafted in terms of extinguishment, that they should be construed as also subject to general rules relating to limitations, so that the extinguishment would always be considered as conditional. That conclusion, so far as Convention claims under Part II of the Act are concerned, must be treated as precluded on the authority of Timeny.
[123]See more recently: Nikolay Malakhov Shipping Co. Ltd. v. Seas Sapfor Ltd. (1998) 44 N.S.W.L.R. 371.
[124](1997) 191 C.L.R. 471. Their observations may technically be obiter, but see esp. per Dawson, J. at 509-510, per Toohey, J. at 515-517, per McHugh, J. at 532-533; see also per Brennan, C.J. at 492 and per Gummow and Kirby, JJ. at 556.
[125][1987] 13 N.S.W.L.R. 286.
[126](2000) 48 N.S.W.L.R. 709.
The appellant sought to rely on Timeny as clearly preventing the Court from making any order which could be seen as reviving the respondent’s claim under Part
IV. There seems little doubt that those responsible for the drafting of the Convention did not desire that there should be any power to extend the agreed two year limit whether on the grounds of incapacity or pursuant to discretionary extension provisions, as was noted in Timeny and in particular in Kahn. It does not follow, however, that Part IV should be construed in the same way. There are many provisions of the Convention which are not replicated in Part IV and there are a number of provisions which are clearly different: see the examination by Sackville, J. (with whom Hill, J. substantially agreed) in South Pacific Air Motive[127]. Thus, some provisions which might appear to make the Convention a code for international flights do not appear in Part IV. For example, Article 28.2[128] applying the procedural laws of the forum does not appear in Part IV, not, I would suggest, because procedural rules of the forum are not intended to apply, but because it was seen to be unnecessary to say so in relation to a federal statute where the exercise of that federal jurisdiction would automatically bring with it the operation of provisions such as s.79 of the Judiciary Act.
[127]Especially at 340-341.
[128]Likewise Art. 29.2 explicitly providing that the “method of calculating the period of limitation” (sic) is vested in courts of the forum.
It may be another matter to conclude that the reference to extinguishment in s.34 was intended to have a different operation under Part IV in contrast to that under the Convention and Part II of the Act. The concept is substantially the same but it must be read in Australia against a background in which it cannot be said that Part IV constitutes a complete code. I reiterate that the trend of authority suggests that limitation periods laid down by Commonwealth statutes may, in certain circumstances, be “tolled”, i.e. held not to operate during disability or the like, or may be extended, pursuant to the only powers which exist for that purpose, that is pursuant to the applicable state or territory legislation. It is not, however, necessary to reach a conclusion as to that kind of provision, the only relevant one here being whether there is a power to amend in terms which might permit an expired claim to be relied upon pursuant to an amendment.
So long as one can characterise that power to amend as essentially procedural, I see no difficulty in that power being exercised pursuant to state or territorial laws “picked up” by virtue of s.79 of the Judiciary Act. In that respect I see no basis for an argument either in terms of inconsistency or irreconcilability. I concede that other powers of extension or qualification of limitation periods must now be treated as
substantive, not procedural. Whatever may have been thought before the year 2000,[129] a majority of the High Court consisting of Gleeson, C.J., Gaudron, McHugh, Gummow and Hayne, JJ., have held in John Pfeiffer[130] that “the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure …”. This the majority justify in the following terms:
“[M]atters that affect the existence, extent and enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason, C.J. in McKain, ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other provisions or rules are to be classified as substantive.”
[129]See also the more restrictive provisions of the Choice of Law (Limitation Periods) Act 1993.
[130]At 543-544 paras.[98]-[100].
Consequently, whatever may be said about the substantive provisions of limitation statutes of the states or territories, those relating to procedure, such as the commencement and amendment of proceedings, are prima facie not to be assumed to be covered by the provisions of the Commonwealth statute dealing with limitations or the like, unless that statute purports to embark upon the prescribing of procedural rules. In the present case there is nothing to suggest that Part IV of the Act was intended to cover the field in relation to the procedure to be adopted in relation to the commencement or amendment of proceedings. The assumption would ordinarily be to the contrary and there is nothing in this statute to deny that consequence. In the result there is no reason to believe that there is a provision in Part IV which contradicts either the Victorian or Northern Territory statutes or rules relating to amendment, or that the Commonwealth intended to “cover the field” so as to deny the states and territories the right to make relevant provisions relating to procedural aspects concerning limitation periods. Furthermore, there is nothing in the relevant amendment regime of State or Territory which can be said to be irreconcilable with Part IV of the Act inasmuch as it cannot be said to have been “otherwise provided” by Part IV of the Act as a Commonwealth Act that the relevant rules as to procedure concerning amendment should not apply. I should mention only that a vast number of other authorities were cited in relation to these various issues which I do not propose to discuss, except to observe that I have read them and taken them into account in reaching the conclusions stated herein.
I should here mention an argument put on behalf of the appellant as to the construction of s.34 of the Victorian Limitation Act (and its equivalent in the N.T.), which presumably was also directed to the operation of O.36. It suggested that both provisions were intended to apply only to limitation provisions prescribed by the Victorian (or N.T.) Limitation Act. For this it cited the tentative opinion of Batt, J. in Keller v. Bayside City Council[131], which was noted and not disapproved in Anglo Irish Beef Processors International v. Federated Stevedores Geelong[132]. I confess I am not attracted by the argument, or by the dicta which support this. The statutory provision in s.34 was very much a fail-safe, devised after the rule was drafted and in fact passed. The terms of O.36.01(6) are general in their operation and were intended to be so. The “rule in Weldon v. Neal” was likewise general and not confined to any particular statute; nor should the provision which abrogated that practice. Likewise the statutory provision should not be read down and there is insufficient in the context and the circumstances of its passing to point to any opposite conclusion. It forms part of the procedural law applicable in both State and Territory.
[131][1996] 1 V.R. 356 at 375-376.
[132][1992] 2 V.R. 676 at 680-682.
Conclusions
The opinions I have formed generally might lead to the conclusion that s.34 of the Victorian Limitation Act and s.48A of the Northern Territory Limitation Act are both directed to matters of procedure and ought to be given their full effect upon the application of s.79 of the Judiciary Act. There is a further complication, however, in relation to Part IV inasmuch as s.34 of the Act is expressed in terms of extinguishment and there is an argument that, to that extent, ss.34 and 48A might be
seen to be derogating from the effect of that section to the extent that they would permit the revival of an otherwise stale and extinguished claim. For the present therefore I would not wish to express a final view on that issue.
The present case, however, is not a case where a completely new claim, said to have been extinguished by the Act, is sought to be added by away of amendment where no like claim previously was asserted. As I have previously sought to explain, all that the amendments in the present case sought to achieve was to add to an existing claim, which was already on foot, certain (effectively) jurisdictional allegations, together with an allegation that the proceeding was brought pursuant to Part IV of the Act. That is the sort of amendment which arguably could have been made before the “rule in Weldon v. Neal” was rigidly confined so as to exclude the possibility of such a claim being effected by way of amendment. As pointed out in cases such as Proctor, the change in court rules, both in England and Australia, without regard to any statutory endorsement of them, was designed to restore flexibility to the process of amendment, so as to allow the substantive claim to be litigated. For practical purposes, all the relevant facts were asserted in the original statement of claim and the only facts omitted were in substance jurisdictional facts or facts which one would have to prove only to show that the respondent had the right to bring the action.
Moreover, in the circumstances of this case it can be properly concluded that “an action was … brought by [the respondent] or for [her] benefit within two years …”, within the meaning of s.34. The circumstances of this case are perhaps unusual and it would therefore be unwise to suggest that a failure properly to plead or make clear a separate cause of action will always be treated so benevolently. I would not wish to deny the need for clear and accurate pleading of causes of action, for there should not be any doubt in the mind of a defendant as to why it is being sued or on what basis, for its preparation to defend a claim may depend entirely on what it understands is being said against it. Nevertheless this is a case where there could not have been the slightest doubt what the plaintiff was attempting to do, albeit ineptly, for the Act itself made clear that no other cause of action could be asserted against it arising out of the accident other than one under Part IV. Of course the plaintiff alleged negligence and breach of contract, but they must have been known to be irrelevant and the best that could be put forward on behalf of the defendant was that it knew that the plaintiff and her advisers had overlooked the precise statutory basis upon which she would have to rely.
If a court has the power to allow an amendment properly to characterise the basis upon which a plaintiff seeks to recover, which I believe it has in all circumstances, then the right to seek such an amendment can only be limited by a plaintiff’s failure to allege other matters which would put the defendant at prejudice if the amendment were allowed. The nature of the claim under the Act providing effectively absolute liability, subject only to proof of contributory negligence, would ordinarily make it difficult for a defendant to claim that it is prejudiced. The decision of the Court of Appeal in Air Link v. Paterson, referred to above, shows why that claim, like the present, was inadequately pleaded, but it says nothing as to the power of this Court to amend. There was arguably one further matter of significance in that case in that the allegation inaccurately described the flight as an intrastate flight whereas in truth it was an interstate flight. Whether in the circumstances that would truly have caused prejudice to the defendant is not clear, but undoubtedly there was at least a claim which on the face of it would have come under one statute, but which should have come under another, the Act under consideration in the present case, but that only could have become clear after amendment.
In conclusion, therefore, whatever may have been said while the “rule in Weldon v. Neal” was being applied in all its strictness in this State, especially after the Full Court decision in Cutrona, the amendments to O.36, which must be characterised as purely procedural, properly may be called in aid to amend an action which has already been brought. Technically the correct cause of action was not identified but I would hold that the identification and characterisation of the correct cause of action should be treated as a matter of mere form, capable of ready amendment, so enabling the plaintiff to prosecute a claim which must be known by the defendant to be the only claim capable of being pursued under Part IV of the Act from the outset of proceedings. That would accept what appears to be the approach of many courts in the United States to this limited kind of amendment.
I would add this, out of respect for the careful examination by Ashley, J. of the authorities and principles. Subject to what I have already said in this judgment and what immediately follows, his categorisation and analysis of those many authorities is both useful and instructive. I must add, however, that I am not persuaded by his reasons that the influence of the “common law” principle as to relation back, as he describes it, is as significant to those cases, or to the outcome of this application to amend, as he would have it. I have already said too much on the topic, but I have never seen it described in terms of the common law, only as a “principle” relevant to the amendment of claims in proceedings. It is no more than the accepted construction of the effect of rules of superior courts, both as to commencement of proceedings and as to their amendment. A degree of rigidity grew up late in the nineteenth century as to amendment, leading to the decision in Weldon v. Neal, because of the belief that that principle, which grew out of an accepted understanding of the effect of amendments, could defeat the genuine rights of defendants where it was sought to add a new claim against them after the relevant limitation period had expired. If the rules properly construed had had that retrospective effect, then it was only right that courts should have been careful that applications to amend were not used as a back-door means of avoiding the Statute of Limitations.
What went wrong was that, over the years, the “rule in Weldon v. Neal”, as a rule of practice, hardened into an absolute, or near absolute, bar to certain amendments even if their practical prejudicial effect were negligible. The purpose of the new court rule (O.36.01(6)) in 1986, was to free courts of that more recent restrictive approach. As I have attempted to show, that alteration to the rules went further and gave the Court the right to ignore statutory limits if otherwise it was not prejudicial to the defendant’s conduct of its case. That change was not consistent with the original practice and effectively denied limitations imposed by statute. That aspect of the change reflected in s.34 of the Victorian Limitation of Actions Act and s.48A of the Northern Territory Limitation Act may properly be seen to be inconsistent with every limitation period, whether imposed by State or Territory legislation or by Commonwealth legislation. To the extent that it seeks to ignore limitation periods laid down by Commonwealth statute, especially absolute bars effected by extinguishment, and to the extent that it seeks to achieve that in relation to Commonwealth legislation, it would be inconsistent, or, at the least, irreconcilable, with those Commonwealth provisions. Nevertheless, and although it is not strictly necessary to resolve the wider aspects of the effect of the State and Territory provisions, neither the statutory provisions, nor for that matter the rules, should be construed so widely.
If one interpreted the new rules of court otherwise, that would result in the vice the appellant sought to emphasise. Any barred or extinguished cause of action could be tacked on to an existing proceeding. What is now permitted by way of amendment, especially by way of joinder of causes of action, is far wider than was allowed in the common law courts (at least in the Court of King’s Bench) or under the original Judicature Act rules. A simple rule of convenience now prevails. If that be so, it would be wrong to permit the addition years later of stale claims bearing little connection with the original claim, on the ground that both rule and section appear to give carte blanche to the Court to do so. It is, of course, unnecessary to resolve that aspect of the rules and the statutory provisions in this judgment. What is here in issue is an amendment seeking to add or vary a few minor details and to give the existing claim a new characterisation, closely akin and by no means remote from the subject matter of the original claim. That is a true amendment and the very kind which the Court ought to be free to give effect to. It affects only an action already on foot. The amendment to the rules alone has achieved that end. That is a mere change to the rules of practice and procedure and questions of inconsistency or irreconcilability with the substantive bar contained in s.34 of the Act are irrelevant
upon this analysis. The application to amend was properly granted.
In consequence the appeal should be dismissed.
CHERNOV, J.:
I have had the considerable advantage of reading the draft judgment of Ormiston, J.A. in this case and, for the reasons given by his Honour, I agree that the appeal should be dismissed. As his Honour makes plain, the Victorian provisions which abrogate the rule in Weldon v. Neil only have procedural effect and thus are not relevantly in conflict with s.34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) which prescribes the relevant period of limitation. Notwithstanding that the section effectively extinguished the respondent’s cause of action before she had applied for leave to amend the statement of claim, the proposed amendment, if granted, would do no more than identify the correct cause of action upon which she proposes to rely to prosecute a claim under the above Act based on the facts originally pleaded in her statement of claim. Such an amendment, as Ormiston, J.A. has made plain, is one of form and could not cause the appellant any relevant prejudice. In the circumstances, no error has been demonstrated in the discretionary decision of the learned primary judge.
O'BRYAN, A.J.A.:
I have read in draft the very erudite judgment of Ormiston, J.A. with which I agree generally.
I have a degree of hesitancy about holding that the original statement of claim was inadequate because it did not include a reference to the Act supporting the claim. Characterisation of a cause of action can be apparent to a defendant in the absence of a specific allegation of the legislative basis for a claim for damages, e.g. a claim for damages by a widow under Part 3 of the Wrongs Act 1958 is adequately pleaded without reference to the Act, in my opinion. However, if the better view is that the statutory basis for Mrs Hatfield's required reference to Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) in the original statement of claim, I unhesitatingly agree with Ormiston, J.A. that the amendment allowed by Ashley, J. was correct in law and that the appeal should be dismissed.
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- AGLC
- Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6
- Case
- [2003] VSCA 6
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the applicability of O.36.01(6) of the Supreme Court (General Civil Procedure) Rules, as well as sections 34 of the Limitation of Actions Act and 48A of the Limitation Act 1981 (N.T.). The court had to ascertain whether these provisions were inconsistent with section 34 of the Civil Aviation (Carriers Liability) Act within the meaning of section 109 of the Constitution. Additionally, the court considered the application of section 79 of the Judiciary Act 1903 (Cth) and whether the aforementioned rules and sections were irreconcilable with section 34 of the Civil Aviation (Carriers Liability) Act for the purposes of section 79. Furthermore, the court examined the implications of the proposed amendments, including the so-called doctrine of "relation back" of amendments and the nature of "extinguishment".
The Supreme Court held that the amendments sought by the plaintiff were not permissible under the statutory framework. The court ruled that the statutory limitation period had expired and the proposed amendments could not be allowed as they would effectively revive a claim that had been extinguished under section 34 of the Civil Aviation (Carriers Liability) Act. The court found that the statutory provisions and rules were not inconsistent with the Civil Aviation (Carriers Liability) Act and that the amendments did not have the effect of "relation back". The court also determined that the extinguishment of the claim under section 34 was absolute and could not be circumvented by amending the pleadings after the limitation period had expired. Consequently, the application for leave to amend was dismissed.
In summary, the court made it clear that once a claim is extinguished under section 34 of the Civil Aviation (Carriers Liability) Act, it cannot be revived through amendments to the pleadings after the limitation period has expired. The court's decision highlighted the importance of correctly identifying the statutory basis of a claim and the finality of statutory extinguishment provisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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