ARCADIA HOLDINGS PTY LTD & ANOR -v- BROWN & ORS [1999] WASC 267

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 267
Case No:	CIV:2110/1994	Heard:	6 DECEMBER 1999
Coram:	MASTER SANDERSON	Delivered:	17/12/99
No of pages:	12	Judgment Part:	1 of 1
Result:	Application allowed in part
PDF Version

Parties:	ARCADIA HOLDINGS PTY LTD ALL STATES AUTO IMPORTS PTY LTD ROBERT BROWN JOHN BUTTON DENNIS McLENNAN MAXWELL HUNTINGTON STEVEN ALLEN COMMONWEALTH OF AUSTRALIA
Catchwords:	Practice and procedure Application for leave to amend statement of claim Operation of O 21 r 5(5) "new cause of action" "arising out of substantially the same facts" Principles to be applied
Legislation:	Nil
Case References:	Arcadia Holdings Pty Ltd v Brown, unreported; FCt SCt of WA; Library No 970438; 9 September 1997 Arcadia Holdings Pty Ltd v Brown, unreported; SCt of WA; Library No 960025; 22 January 1996 Bill Discount Services Pty Ltd (In Liq) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 21 April 1999 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Weldon v Neal [1887] 19 QBD 394 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ARCADIA HOLDINGS PTY LTD & ANOR -v- BROWN & ORS [1999] WASC 267 CORAM : MASTER SANDERSON HEARD : 6 DECEMBER 1999 DELIVERED : 17 DECEMBER 1999 FILE NO/S : CIV 2110 of 1994 BETWEEN : ARCADIA HOLDINGS PTY LTD

First Plaintiff

ALL STATES AUTO IMPORTS PTY LTD

Second Plaintiff

AND

ROBERT BROWN

First Defendant

JOHN BUTTON

Second Defendant

DENNIS McLENNAN

MAXWELL HUNTINGTON

STEVEN ALLEN

Third Defendants

COMMONWEALTH OF AUSTRALIA

Fourth Defendant

(Page 2)

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Operation of O 21 r 5(5) - "new cause of action" - "arising out of substantially the same facts" - Principles to be applied

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

First Plaintiff : Mr P A Kyle

Second Plaintiff : Mr P A Kyle

First Defendant : Mr P R Macliver

Second Defendant : Mr P R Macliver

Third Defendants : Mr P R Macliver

Fourth Defendant : Mr P R Macliver

Solicitors:

First Plaintiff : Kyle & Company

Second Plaintiff : Kyle & Company

First Defendant : Australian Government Solicitor

Second Defendant : Australian Government Solicitor

Third Defendants : Australian Government Solicitor

Fourth Defendant : Australian Government Solicitor

Case(s) referred to in judgment(s):

Arcadia Holdings Pty Ltd v Brown, unreported; FCt SCt of WA; Library No 970438; 9 September 1997
Arcadia Holdings Pty Ltd v Brown, unreported; SCt of WA; Library No 960025; 22 January 1996
Bill Discount Services Pty Ltd (In Liq) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987

(Page 3)

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning, unreported; FCt SCt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] WASC 267
Decision Date

CaseChat Overview and Summary

Arcadia Holdings Pty Ltd and All States Auto Imports Pty Ltd (the plaintiffs) commenced proceedings against Robert Brown, John Button, Dennis McLennan, Maxwell Huntington, Steven Allen, and the Commonwealth of Australia (the defendants) in the Supreme Court of Western Australia. The plaintiffs sought leave to amend their statement of claim, which had previously been struck out by Acting Master Chapman and subsequently upheld by the Full Court. The primary issue before Master Sanderson was whether the proposed amendments introduced new causes of action that arose from substantially the same facts as the original claims.

The plaintiffs argued that the amendments were permissible under Order 21 Rule 5(5) of the Supreme Court Rules, which allows for amendments that introduce new causes of action arising from the same or substantially the same facts. The defendants contended that the proposed amendments introduced new causes of action that did not meet the criteria set out in the rule. Master Sanderson considered the Full Court's interpretation of the rule in Dye v Griffin Coal Mining Co Pty Ltd and Morgan v Banning. He found that, while the amendments introduced new factual allegations, they were sufficiently connected to the original claims to be considered as arising from the same or substantially the same facts.

Master Sanderson allowed the amendments concerning the third defendants, noting the focus on a single meeting in November 1989 and the absence of evidence of specific prejudice. However, he refused the amendments concerning the second defendant, providing the plaintiffs an opportunity to submit a further minute. The case will proceed with these rulings, and further orders will be made after consultation with the parties.

Orders