Allonnor Pty Ltd v Doran

[1998] QCA 239

[1998] QCA 239

COURT OF APPEAL

DAVIES JA
THOMAS J

DERRINGTON J

Appeal No 5210 of 1998

ALLONNOR PTY LTD Applicant (Defendant)

and

WAYNE DORAN	Respondent (Plaintiff)
BRISBANE ..DATE 13/07/98
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DAVIES JA: This is an application for leave to appeal under s.118 of the District Court Act 1967 from an order of a District Court Judge giving leave to a plaintiff to amend his statement of claim to add a new cause of action outside the relevant limitation period. The order did not state that it was to have the effect as if it were commenced at the time of the existing action but that seems to have been assumed by the learned District Court Judge and by the parties. It is common ground that in making that order the learned District Court Judge erred in purporting to apply r.104(3) of the District Court Rules to the facts of this case. That rule permits a new cause of action to be added or substituted with leave of the Court or a Judge notwithstanding that the effect of an amendment to do that would be to add or substitute a cause of action arising after the filing of the plaint. That is not this case. The cause of action here did not arise after delivery of the statement of claim. In fact, it arose on the same day as the cause of action sued on in the statement of claim but by the time it was sought to be added the relevant limitation period had expired.

It is common ground between the parties that the relevant

provisions which the learned District Court Judge should

have applied to this case were O.32 r.1 of the Rules of the

Supreme Court applied by r.4 of the District Court Rules. The relevant provisions of that rule are sub-rr. (1), (2) and (5) which are in the following terms:

"(1) The Court or a Judge may, in any cause or matter,

at any stage of the proceedings, allow or direct
either party to alter or amend the writ of summons
or any endorsement thereon, or any pleadings or

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other proceedings, in such manner and on such

terms as may be just.

(2) Where an application to the Court or a Judge for

leave to make the amendment mentioned in sub-
r.(3), (4) or (5) is made after any relevant
period of limitation current at the date of the
issue of the writ has expired, the Court or a
Judge may nevertheless grant such leave in the
circumstances mentioned in that sub-rule if the

Court or Judge thinks it just to do so.

(5) An amendment may be allowed under sub-r.(2)

notwithstanding that the effect of the amendment
will be to add or substitute a new cause of action
if the new cause of action arises out of the same
facts or substantially the same facts as a cause
of action in respect of which relief has already
been claimed in the action by the party applying
for leave to make the amendment."

The specific provisions of r.(5) permit the addition of a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed and one question which would arise if leave were granted, the learned District Court Judge having not considered this question, is whether the cause of action sought to be added arises out of the same facts or substantially the same facts.

The original cause of action sued on was against the applicant/defendant as the employer of the plaintiff for negligence and breach of statutory duty arising out of an incident on 6 January 1992 in which the plaintiff was lifting it seems a table unassisted during the course of its delivery on behalf of the defendant at Ferny Grove in Brisbane. The cause of action which the plaintiff sought to and was permitted to add by his application dated 24 April this year was one in respect of another lifting incident on

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the same day but at another location also said to be in the
course of delivery this time of a chair or bench seat on
behalf of the defendant.

So the first question which arises, as I have said, if leave were granted, is whether those facts are the same or substantially the same facts as the facts in the existing cause of action.

A second question which would arise if leave were granted is whether, if the matter does not come within O.32 r.1 of the Rules of the Supreme Court because the facts are not the same or substantially the same, there is nevertheless the discretion in this Court to permit the cause of action to be added having the effect of obviating the limitation period and there are further questions if there is a discretion as to whether that discretion is limited to peculiar or special circumstances - sometimes called the Weldon v. Neal test - or whether in fact there is a general discretion unlimited in that way, as Mr Crooke has submitted there is, in which case I would find some difficulty in seeing what the purpose and effect of O.32 r.1 sub-rr.(2) and (5) would be.

Nevertheless, whatever view we might take of that matter it seems to me with respect that they are important questions of law which arise in this matter and which were not decided by the learned primary Judge because his Honour decided the matter on a false basis.

The parties were asked whether they would be prepared to

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have this matter considered as the determination of the
appeal if leave were granted and both parties were not
prepared to agree. Mr Clifford for the applicant was not
prepared to agree to that course and so we are limited to
deciding whether in fact leave should be granted.

For the reasons I have mentioned I would grant leave to appeal and I would reserve the costs of this application.

THOMAS J: I agree. I would merely add that my mind is quite open on the question of whether a general discretion to allow the amendment exists over and above the special powers recognised in O.32 r.1 sub-rr.(2) and (5).

DERRINGTON J: I agree with the order proposed.

DAVIES JA: The orders are as I have indicated.

MR CLIFFORD: We should ask the Court for an order giving us leave to file, I think, a notice of appeal. We have only so far exhibited one to an affidavit. It probably does not

fairly raise those points.

DAVIES JA: Leave granted.

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