Corkhill v Commonwealth
[2015] ACTSC 216
•7 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | CORKHILL V COMMONWEALTH |
Citation: | [2015] ACTSC 216 |
Hearing Date(s): | 4 June 2014 |
DecisionDate: | 7 August 2015 |
Before: | Refshauge J |
Decision: | 1. The Plaintiff have leave to amend her Statement of Claim and Reply to Defence in accordance with the reasons of the Court delivered on 7 August 2015. 2. The Plaintiff prepare and lodge with the Associate to the Honourable Justice Refshauge on or before 21 August 2015 an amendment Statement of Claim and Reply to Defence which reflects those reasons endorsed by the Defendant’s Solicitors that they have been amended in accordance with this order. 3. Upon lodgement of the documents referred to in order 2, the court will give leave for those documents to be filed and to be served in accordance with the Rules. 4. The Defendant have leave to amend its Defence within 21 days from the date of service upon it of a stamped copy of the Amended Statement of Claim. 5. The Plaintiff have leave to amend its Amended Reply to Defence further within 14 days from the date of service upon her of a stamped copy of the Amended Defence. 6. The Plaintiff pay the Defendant’s costs of this application such costs not to be assessed or payable until the determination of the action. |
Category: | Principal Judgment |
Catchwords: | TORTS – Negligence – Negligent misstatement – Pure economic loss – Duty of care – Duty to facilitate and process an application – Where a public authority owes a duty of care – Whether a duty exists – Salient features SUPERANNUATION– Public service funds – Availability of public service superannuation funds to ‘temporary’ Commonwealth employees – Availability of funds to the widow of a ‘temporary’ Commonwealth employee JURISDICTION, PRACTICE AND PROCEDURE – Application to amend statement of claim – Whether the cause of action is maintainable – Whether amendment a new cause of action –Whether action arises from the “same or substantially the same facts” – Limitation of actions – Amendment of inadequately pleaded cause of action |
Legislation Cited: | Corporations Law (Cth), s 588FF Limitation Act 1985 (ACT), ss 11, 32, 33, 34 Court Procedures Rules, rr 21, 425, 501(a), 502, 503, 514(4) |
Cases Cited: | Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v New South Wales (2004) 132 LGERA 309 |
Texts Cited: | Martin Davies and Ian Malkin, Torts (LexisNexis Butterworths: Sydney, 2012) 6th ed |
Parties: | Hazel Joan Corkhill (Plaintiff) Commonwealth of Australia (Defendant) |
Representation: | Counsel Mr R Davis (Plaintiff) Mr G Stretton (Defendant) Mr M O’Meara (Defendant) |
| Solicitors Snedden Hall & Gallop (Plaintiff) Australian Government Solicitor (Defendant) | |
File Number(s): | SC 247 of 2009 |
REFSHAUGE J:
John Patrick Corkhill was employed by the defendant, the Commonwealth of Australia, as a temporary employee driving trucks, buses and cars from 1957 until his retirement in December 1990.
He was, at the time, the husband of the plaintiff, Hazel Joan Corkhill, they having married in 1954.
During Mr Corkhill’s employment with the Commonwealth, it established and operated three superannuation schemes for eligible employees, each of them under relevant legislation: the Superannuation Act 1922 (Cth) (the 1922 Act), the Superannuation Act 1976 (Cth) (the 1976 Act) and the Superannuation Act 1990 (Cth) (the 1990 Act).
In circumstances the subject of these proceedings, Mr Corkhill never became a member of any of these superannuation schemes. Those circumstances are similar to the circumstances considered in a number of cases decided by this Court, namely Cornwell v Commonwealth (2005) Aust Torts Reports 81-779; Guy v Commonwealth [2013] ACTSC 128; Meredith v Commonwealth (No 2) (2013) 280 FLR 385; Duffy v Commonwealth [2013] ACTSC 239; Tobin v Commonwealth [2013] ACTSC 240; Knight v Commonwealth [2013] ACTSC 238 and Reeve v Commonwealth [2014] ACTSC 1.
In those cases, it was held that the circumstances in which the plaintiffs failed to become members of an appropriate superannuation scheme were caused relevantly by the Commonwealth or its agents, such that the Commonwealth was liable to the plaintiffs and the Commonwealth was ordered to compensate them accordingly.
In this case, however, Mr Corkhill died on 1 March 2003. He was, therefore, unable to seek compensation himself. What will be in issue in these proceedings is whether his widow, Mrs Corkhill, who, it is said, would have had a reversionary entitlement to Mr Corkhill’s superannuation, would be entitled to claim from the Commonwealth for the loss of that entitlement.
Mrs Corkhill, therefore, has commenced proceedings against the Commonwealth for recovery of damages which she claims she has suffered because her husband did not join a relevant superannuation scheme as a result of culpable conduct by or on behalf of the Commonwealth, for which it is liable.
The claims made by Mrs Corkhill, therefore, are claims for damages for pure economic loss.
The proceedings were commenced in February 2009. She now seeks, however, by Application in Proceedings dated 30 April 2014, to amend her pleadings.
Attached to these reasons is a copy of the Statement of Claim and the Reply filed by Mrs Corkhill with tracked changes showing the amendments which Mrs Corkhill wishes to make. This avoids the need for substantial textual reference throughout these reasons. I will, however, quote relevant parts where it aids the intelligibility of these reason.
Amendments – not opposed
Certain of the amendments sought by Mrs Corkhill are not opposed by the Commonwealth. I will, accordingly, give Mrs Corkhill leave to make those amendments.
The proposed amendments to the Statement of Claim which are not opposed are:
1. To omit “(iii) breach of statutory duty” in the list of the Plaintiff’s claims.
2. To add “now widow” to sub-paragraph (b) in the capacity in which the Plaintiff sues.
3. To add “Married the Plaintiff on 11 August 1954” as new sub-paragraph 2(b).
4. To add “1963” to the list of years in paragraph 4.
5. To delete “unnamed” and “The Deceased cannot identify the individual by name” to sub-paragraphs 4(a) and (b).
6. To delete “unnamed” and to add “(who was most likely Mr Jock McCallum)” after “Department of Works” in sub-paragraph 5(a).
7. To delete “unnamed” in sub-paragraph 5(b).
8. To omit “unnamed” in sub-paragraph 6(a) and to insert after “officer” the words “in management and” and to add “(who was most likely Mr Leo Morrissey the paymaster, and/or Mr Nelson Simpson the Manager Transport Section)” after “Transport Section” in the same sub-paragraph.
9. To omit “unnamed” and substitute “said” in sub-paragraph 6(b) and insert “and/or” before “Senior Manager”.
10. To substitute “Deceased” for “defendant” in sub-paragraph 7(a)(v).
11. To add sub-paragraph 10(aA) “not later corrected by the representors or any other senior officer of the Defendant”.
12. To add “Commonwealth superannuation” between “his entire” and “benefits” in sub-paragraph 11(c).
13. To add “would” between “receive and” and “have in fact received” in sub-paragraph 11(d).
14. To substitute “no” for the first “a” in sub-paragraph 12(a).
15. To substitute “the Deceased” for “its employees” and “his” for “their” in sub-paragraph 14(a) and to add “for the benefit of himself and his spouse (the Plaintiff)” and to make the same amendments in sub-paragraph 14(b).
16. To substitute “the Deceased” for “all of its temporary and/or exempt employees from time to time” in sub-paragraph 15(a).
17. To substitute “the Deceased” for “each such employees” and “his” for “their” in sub-paragraph 15(b).
18. To omit “fortnightly” and to substitute “the Deceased” for “each temporary and/or exempt employee” and “his” for “their” and for “them their” in sub-paragraph 15(c) and to insert “in fortnightly contact for the purpose of” in the sub-paragraph.
19. To substitute “the Deceased” for “each of such employees” and “his” for “their” in sub-paragraph 15(d).
20. To substitute “was” for “were” and “his” for “their” in sub-paragraph 16(a).
21. To omit the whole of paragraph 17.
22. To substitute “reasonable” for “sufficient” in paragraph 20.
23. To add “correct” between “as to the” and “reasonable” in sub paragraphs 20(b) and 20(c).
24. To omit “employees including” in sub-paragraph 20(e).
25. To make such amendments as would substitute “receive and would have” for “received and have” in sub-paragraph 21(d).
26. To omit paragraphs 23 to 31 both inclusive.
The amendments to the Reply to the Defence which are not opposed are:
1. To substitute “Deceased” for “Plaintiff” in sub-paragraph 1.3.
2. To add “6A” in sub-paragraph 3.2(a) and make an appropriate grammatical amendment.
3. To omit “the” between “about” and “his” in sub-paragraph 3.2(d).
4. To add paragraph (A) to sub-clause 4.1 as follows:
The Plaintiff denies the requirements of the 1922 and/or 1976 Acts conferred discretion to reject membership to Commonwealth superannuation once the factual eligibility criteria for membership were met; or alternatively
and to make the balance of the sub-clause into paragraph (B) with the chapeau “If the eligibility requirements conferred any discretion on the Defendant:”.
5. To omit the second “that” in sub-paragraph 4.1(b)(c).
6. To insert “the Deceased’s” between “continuity of” and “employment in sub-clause 4.2.
7. To add a new sub-clause 4.4:
The Plaintiff further relies upon the fact that the Deceased underwent medical examinations and, as a driver, annual medical examinations arranged by the Defendant, and that he worked for the Defendant continuously and reliably for 33 years.
8. To omit “not” from paragraph 7.1(a).
9. To add a new paragraph 7.1(c):
The Deceased did regularly thereafter pass medical examinations arranged by the Defendant.
10. To substitute “7” for “8” in sub-paragraph 7.2(b).
11. To omit “statutory” and “for” in sub-paragraph 7.2(c)(ii).
I shall make an appropriate order for leave to make these amendments.
Amendments – opposed
It is not necessary, at this stage, to outline in specific, textual detail the amendments that are opposed in order to consider them.
The amendments fell into effectively three groups, all of which (subject in one case to a categorisation issue) sought to introduce a new cause of action in the proceedings.
Paragraphs 19 and 20 currently plead a cause of action in negligence. The proposed amendments would omit that cause of action and replace it with another.
That raises a number of issues:
(1) Is the cause of action one that is maintainable?
(2) If so, was the duty of care owed to Mrs Corkhill?
(3) Is it appropriate to permit the amendment?
(4) Is the Court prevented from permitting the proposed amendment because of the effect of the law of limitation of actions?
The second group related to proposed amendments which would have the effect of pleading facts that allegedly gave Mrs Corkhill personally a claim against the Commonwealth.
The pleading that these proposed amendments would add to the Statement of Claim is claimed by the Commonwealth to add a new cause of action, but may not do so. I shall address that issue in due course. If it does, it raises issues (3) and (4) as referred to above (at [18]).
The proposed amendment also, thirdly, would insert a new paragraph, 6A, into the Statement of Claim which would plead a further allegation that Mr Corkhill had been advised on a further occasion that he was unable to join a Commonwealth superannuation scheme which advice was incorrect and negligently given to him. This raises the issues as referred to above (at [18]).
It is convenient to deal with each of these proposals in turn, after dealing with the law.
The Law – Amendments after the Expiry of the Limitation Period
In order to evaluate each of these amendments, it is necessary to examine the legal context within which the application to amend is to be approached.
As noted, each of the claims is for pure economic loss. Such claims are, under s 11 of the Limitation Act 1985 (ACT), not maintainable if brought after the end of a limitation period of six years, commencing from the date when the cause of action first accrues to Mrs Corkhill.
Any loss sustained by Mrs Corkhill occurred on 1 March 2003 when her husband died. See Commonwealth of Australia v Cornwell (2007) 229 CLR 519. Any superannuation benefits to which she was entitled accrued to her on that date. See, for example, s 32 of the 1922 Act and Part VI of the 1976 Act.
As Mrs Corkhill commenced these proceedings less than six years after her husband’s death, no limitation issue arises in respect of the claims then made. The amendments, however, are in a different situation.
The Court has a wide power under r 502 of the Court Procedures Rules 2006 (ACT) to make amendments. Indeed, r 501 requires certain amendments to be made, including those required for the purpose of “deciding the real issues in the proceeding”.
The latter power is more limited, however, for, as described by the plurality in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon v ANU) at 208-9; [82]-[83]:
[w]hat needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it.
...
A consideration of these cases does not suggest that an unduly narrow approach should be taken to what are the real issues in controversy, although they are not, or are not sufficiently, expressed in the pleading.
(Emphasis in the original)
The wide power under r 502 of the Court Procedures Rules, however, may be circumscribed in a number of ways. In the first place, this power is to be exercised in accordance with the purposes of the rules set out in r 21. Thus, as the plurality also points out in Aon v ANU at 213; [98]:
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account
The Commonwealth, however, did not submit that this limit on the power of amendment was relevant in this case.
A further limit applies if the court forms the view that the cause of action proposed to be pleaded by the amendment would be liable to be struck out (such as under r 425 of the Court Procedures Rules) or that the matter that the amendment would raise is unlikely to succeed; leave should then not generally be given. See Horton v Jones (No 2) (1939) 39 SR(NSW) 305 at 310; Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38; Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66 at 69-70; [21]-[22]. It is, of course, important not to stifle legitimate, but arguable, claims which may not be readily obvious as likely to succeed.
It would appear that the test for such consideration should be similar, if not identical, to that applicable to the test applied when considering the striking out of a Statement of Claim as disclosing no reasonable cause of action. That is to say, an amendment will not lightly be refused on this ground and must show a manifest incapacity to raise a maintainable cause of action, as described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. For example, as Lord MacMillan pointed out in Donoghue v Stevenson [1932] AC 562 at 619, the categories of negligence are never closed and legitimate attempts to extend existing boundaries should not be denied to litigants, though there are limits, as explained in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114 at 132; [94].
Another limit arises in connection with the date after the events said to give rise to Mrs Corkhill’s claim on which an application to amend is made. This arises in the following way.
In general, as pointed out by Mason P in Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 at 400; [47], an amendment to a pleading takes effect as if it had always been incorporated into that pleading. As Priestly JA pointed out in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 182, this was a rule of practice and was modified by another rule of practice, enunciated in Weldon v Neal (1887) 19 QBD 394, that where a plaintiff began proceedings pleading one cause of action but sought, subsequently, to add another cause of action, this would not be permitted if, though the cause of action was not barred by a limitation statute at the time the proceedings were commenced (and to which the rule relating the effect of the amendments to that date would make it maintainable), it would be barred at the date of the amendment. This is known as the “relation back” effect of the amendment.
Difficulties experienced by courts in applying the rule in Weldon v Neal caused court rules to be amended to permit some amendments that the rule would otherwise bar. The rules, in the words of Glass JA in McGee v Yeomans [1977] 1 NSWLR 273 at 280, with whom Moffitt P agreed:
substituted a general discretion to allow an amendment, notwithstanding that it raised a barred cause of action, whenever justice so requires.
The discretion, however, was limited to the circumstances set out in the relevant rules. In this Territory, the relevant rule is r 503 of the Court Procedures Rules which provides:
503 (1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
(2) The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i)was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.
(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if—
(a) the court considers it appropriate; and
(b) the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.
(4) The court may give leave to make an amendment to include a new cause of action only if—
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
In this case, the applicable provision is r 503(4) of the Court Procedures Rules as each of the proposed amendments opposed by the Commonwealth (summarised above at [16]-[20]) would, if permitted, arguably add a further cause of action. Thus, Mrs Corkhill must show, in respect of those new causes of action, that it is appropriate that the amendments be made and that each of the new causes of action arise out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed by her.
I considered the interpretation of this provision in Meredith v Commonwealth [2009] ACTSC 168 at [14]-[23]. My conclusion as to whether a new cause of action arose was summarised by me at [23] as follows:
Is the claim here a new cause of action? As is clear I have not had the time I would have liked to consider this issue but it seems to me that one approach to the question of whether there is a new cause of action is to ask the following question. If a plaintiff fails to prove to the court’s satisfaction the material facts, not including prefatory averments or matters of inducement, in respect of the pleaded cause of action to the requisite satisfaction of the trial court or at least substantially as to all them, yet does prove the material facts proposed to be included in the amendment, would the plaintiff still be entitled to relief from the court? If the answer is “no”, then that is a strong indication that what is pleaded is not in the relevant sense a new cause of action. Conversely if the answer is yes it seems likely that it is a new cause of action.
In Naidu v Fergusson (2013) 8 ACTLR 150 at 163-4, Master Mossop helpfully extracted a summary of the tests articulated in one of the authorities I had analysed and a more recent authority pointing out as follows:
The tests to be applied have been variously articulated: whether “[t]he same — or substantially the same — set of facts falls to be investigated” in relation to the two claims: Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 873 per Sachs LJ, whether “the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action”: Brickfield at 880 per Cross LJ, “whether the overlap between the essential facts on which each cause of action depends is so great that the two causes of action can be said to arise out of substantially the same facts”: [New South Wales v] Radford [[2010] 79 NSWLR 327] at [342;] [72].
It is also relevant to bear in mind the caveat expressed by Thomas J, with whom McMurdo P expressly agreed on this point, in Draney v Barry [2002] 1 Qd R 145 at 164; [57], when considering r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld), substantially identical to r 503(4) of the Court Procedures Rules, where his Honour said:
Rule 376 provides a structure within which courts may regulate such procedural applications with due regard to the interests of all parties. Sub rule (4), which is directly relevant in the present context, allows a fairly wide discretion in that the court will not allow such an amendment unless it considers it “appropriate” to do so and also considers that the new cause of action arises at least substantially out of the same facts as the existing cause of action. I do not think that “substantially the same facts” should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under r 376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.
Footnote omitted.
Duty to Process Applications
The first amendment is essentially found in the proposed insertion of words in sub-paragraphs 19(g) and 20(g) which are as follows (where the words proposed to be inserted are underlined and the words to be omitted are struck through).
19.As a consequence of the matters pleaded in paragraphs 13 to 18 above, the Defendant owed a duty to
temporary and/or exempt employees includingtheDeceased (and their dependents and successors)the Plaintiff:...
(g)to facilitate and duly process an application to include
employees such asthe Deceased in Commonwealth superannuation, as soon as he became entitled to join, after becoming aware of the Deceased’s wish to do so in 1957 (and at all times thereafter); and/or...
20.In breach of the said duty, the Defendant negligently failed to take any, or any reasonable
sufficientsteps:to facilitate and duly process an application to include
employees such asthe Deceased in Commonwealth superannuationconductedpursuant to the said Acts, as soon as he became entitled to join, after becoming aware of the Deceased’sPlaintiff’swish to do so in 1957; ...
The precise identity of the opposed amendments that deal with this issue was not expressly articulated but it seemed to me that the proposed amendments to paragraph 13; sub-paragraph 15(b), paragraph 16 and paragraph 18, and a number of other amendments to paragraphs 19 and 20 were linked to this amendment and, if this one were to be allowed, they would also be allowed. Some may, however, have an independent claim to be included even if the amendments to sub-paragraphs 19(g) and 20(g) are not permitted.
The gravamen of the proposed amendments, the Commonwealth, however, asserts, is to plead an additional common law duty which it is alleged to have breached, namely that it had a duty to facilitate and duly to process applications made by Mr Corkhill to join the superannuation scheme established under the 1922 Act. This, it is submitted, is a new cause of action, the limitation period for which has now long expired.
Further, it is submitted that the effect of the proposed amendments is to insert a pleading that alleges that the Commonwealth had a duty in fact to approve the applications made by Mr Corkhill.
In fairness to Mrs Corkhill, this is put by her somewhat more subtlely, namely that, once factual eligibility criteria had been established which, it is pleaded, were satisfied in this case, there was, it is further pleaded, no discretion not to approve the application or, alternatively, that, on the balance of probabilities, any discretion would have been exercised in favour of Mr Corkhill, having regard to the circumstances, the facts and the application of any such discretion in the past. See Meredith v Commonwealth (No 2) at 467; [650]-[651]).
It was submitted on behalf of Mrs Corkhill that, indeed, the intention of the proposed amendment was to limit the present allegation which was “to include” Mr Corkhill in the relevant superannuation scheme by focussing and only relying on the anterior process to that outcome, which outcome is presently the effect of the pleading. Nevertheless, the effect of the proposed amendments is to plead a particular duty of care and its breach, which was said to sound in damages. That it may be considered to be a narrowing or sub-set or element of the current pleading seems to me to be no answer to the question to be considered, namely whether the cause of action to be pleaded by the proposed amendments is an arguable one in the required sense, as set out above (at [31]).
That is to say, the fact that a cause of action has been pleaded and has not been struck out (in this case because no application to do so has been made) does not relieve the court of determining whether a change (whether by refinement or otherwise) of that cause of action would result in the pleadings alleging a cause of action that is not, in the relevant sense, maintainable.
I turn then to the claimed cause of action. It is relevant to note, first, that it is not a claim based on a breach of statutory duty. It is, therefore, not to be evaluated through that prism. It is a claim in negligence.
There can be no doubt that a public authority such as the Commonwealth can properly be the subject of a claim in negligence. Such has been the law of Australia at least since Caledonian Colleries Ltd v Spiers (1957) 97 CLR 202. As Brennan J stated in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 358:
... liability may be imposed on a public officer under the ordinary principles of negligence where, by reason of negligence in the officer’s attempted exercise of a power, statutory immunity that would otherwise protect the officer is lost.
His Honour referred to Benning v Wong (1969) 122 CLR 249 at 256 and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458, 484.
That this includes acts done under a statutory power is clear from the decision of the High Court in L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1981) 150 CLR 225. It is clear, however, from Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, that a duty is not imposed on a public authority to exercise every statutory power granted to it. The question in this case is whether a duty such as that asserted is one that could arguably be said to have been owed to Mrs Corkhill.
In commencing this inquiry, it needs to be noted that, as stated by Mason J in Sutherland Shire Council v Heyman at 459-460, generally speaking, a public authority which is under no statutory obligation to exercise a power could, without more, be under no common law duty of care to do so, though it may put itself in a position to attract such a duty of care if it takes action which calls for the exercise of the power. Thus, the receipt of an application by Mr Corkhill for entry to a superannuation scheme may well impose a duty to process the application, though not necessarily to approve it.
In Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v New South Wales (2004) 132 LGERA 309 at 317; [21], Ipp JA with whom Mason P and McColl JA agreed, drew from Sutherland Shire Council v Heyman the following three categories which had been identified as circumstances in which a duty of care may be attracted to a public authority and, it appears to me, which may be regarded as categories where the existence of such a duty of care is established:
(i)Where an authority, in the exercise of its functions, has created a danger.
(ii)Where the particular circumstances of an authority’s occupation of premises or its ownership or control of a structure attracts to it a duty of care. In these cases the statute facilitates the existence of a duty of care.
(iii)Where a public authority acts so that others rely on it to take care for their safety.
None apply here. Thus, the Court is required to apply the ordinary principles now set by the High Court to determine whether such a duty exists. Thus, in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 576, Stephen J referred to the “salient features” which have become recognised as characteristic of a particular class of case “among the generality of cases involving economic loss” where a duty is imposed by the law. This approach allows a court, by reference to the “salient features” to identify whether there is a duty of care, the breach of which, causes harm or loss, exists, an approach which his Honour said:
will be typical of the development of the common law in which, in the words of Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt, the elements of the relationships out of which a duty of care is imposed by law ‘will be elucidated in the course of time as particular facts are submitted for consideration in cases coming forward for decision’.
Footnote omitted.
This notion of “salient features” has since been developed and embraced recently by Gummow J in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 253 and subsequently in Graham Barclay Oysters Pty Ltd v Ryan at 597-8 per Gummow and Hayne JJ, Waller v James (2006) 226 CLR 136 at 148 per Kirby J, Harriton v Stephens (2006) 226 CLR 52 at 74; [64], 76; [72], Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 371; [20] per French CJ and Gummow J, Barclay v Penberthy (2012) 246 CLR 258 at 320; [173] per Kiefel J and in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408 at 419; [30].
Even where the phrase is not used, the same approach of identifying and assessing the various relevant factors needed to determine whether a duty of care exists has been followed in recent years, as in Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at 254; [113] per Gummow, Hayne and Heydon JJ.
In Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676; [102]-[104], Allsop P, with whom Simpson J agreed, reflected on this approach as a move away from an attempt to articulate a general determinant for the existence of a duty of care. His Honour said:
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
His Honour then proceeded to list seventeen salient features and explained of them:
[t]here is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
Nevertheless, as Martin Davies and Ian Malkin commented in Torts (LexisNexis Butterworths: Sydney, 2012) 6th ed, at 457-8; [6.26]:
we shall see that in Perre v Apand Pty Ltd ..., Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; ... and a string of lower court cases following Woolcock ..., the plaintiff’s vulnerability, meaning the ability to protect oneself from harm, was regarded as a key (and sometimes the only) ‘salient feature’ in considering whether the defendant owed the plaintiff a duty not to cause purely economic loss.
Among the seventeen salient features identified by Allsop P at 676; [103], which include the degree of vulnerability of the plaintiff and his or her capacity to protect himself or herself and the autonomy of individuals, were the following:
(o) the existence of conflicting duties arising from other principles of law or statute;
(p)consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q)the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
These are important for, while there was no concession by either party that other salient features were or were not relevant or would lead to a finding of the existence of a duty of care, it was really in this area that the Commonwealth challenged the existence of the alleged duty.
The Commonwealth’s position was that the acts described in the pleading to be introduced by the proposed amendments amounted to a duty to make a favourable, correct or lawful administrative decision and that the common law was that there was no such duty.
The Commonwealth relied on a number of authorities. These included Dunlop v Woollahra Municipal Council [1982] AC 158 at 171-2, where the Privy Council expressed considerable doubt as to whether there was a duty owed by a council to a property owner to take reasonable care, by seeking proper legal advice, to ascertain that a resolution regulating the number of storeys that might be included in a building to be erected on the plaintiff’s land was within power or not. The Privy Council held that there was not such a duty and further held that the failure of a public authority to give a person an adequate hearing before deciding to exercise a statutory power in a manner which would affect that person’s property cannot, by itself, constitute a breach of a duty of care.
Subsequently in Rowley v Takaro Properties Ltd [1988] AC 473 at 502-3, the Privy Council again expressed doubt about whether a minister of the Crown was under a duty to seek legal advice before exercising a discretion or to exercise the discretion within any particular time and that breach of such duties expose the minister to a liability in negligence.
These cases do not precisely decide that a liability for negligence cannot arise as a consequence of administrative law decision-making of itself. Insofar as the doubts expressed should be accepted, they may well lead to a serious question as to whether Mrs Corkhill’s unamended pleading (that is a “duty ... to include [Mr Corkhill] in Commonwealth superannuation”) is maintainable, especially when that involves the exercise of a discretion, as described in Meredith v Commonwealth (No 2) at 467; [650].
The duty of care to be pleaded by the proposed amendments, however, is different; it is “to facilitate and duly process the application”. I do not consider that either decision of the Privy Council addresses the issue of whether there exists such a duty of care.
The Commonwealth, however, referred to further decisions which raise the policy issue referred to by Allsop P, especially as to the coherence of such a liability with administrative law. Brennan J described the issue in Northern Territory of Australia v Mengel at 359, when describing the reason why an action for negligence is not available in circumstances where the activities of public officials is regulated, inter alia, by the tort of misfeasance in public office. His Honour, having referred to the liability for the latter, in part depending on proof of a relevant state of mind being held by the officer, continued:
That element [namely, the relevant state of mind], defines the legal balance between the officer’s duty to ascertain the functions of the office which it is his or her duty to perform and the freedom of the individual from unauthorised interference with interests which the law protects. The balance that is struck is not to be undermined by applying a different standard of liability – namely, liability in negligence – where a plaintiff’s loss is purely economic and the loss is attributable solely to a public officer’s failure to appreciate the absence of power required to authorise the act or omission which caused the loss. The law does not speak with a forked tongue when dealing with the limit of liability of a public officer.
Footnote omitted.
In the context of statutory powers, this is to be seen in the need for the coherence referred to earlier (at [58]) as explained by Brennan J again in Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431 at 443, as follows:
In Pyrenees Shire Council v Day, I expressed my opinion that no duty to exercise a statutory power and to exercise it with care can be imposed by the common law on the repository of the power when the statute, operating in the particular circumstances, leaves the repository with a discretion whether to exercise it or not. If it were otherwise, the common law would impose on the repository a duty to exercise the power when the legislature had intended the repository to decide for itself whether and in what manner the power should be exercised.
In New South Wales v Paige (2002) 60 NSWLR 371 at 400-4; [156]-[177], Spigelman CJ carefully analysed the question of the need for coherence between liability for negligence and administrative law. His Honour analysed the authorities in detail and concluded:
176 An award of damages based on defective decision-making will often be explicable only on the basis that the decision ought to have been made in favour of the person who suffered damage. The effect of extending the law of tort to permit recovery of damages for errors subject to judicial review will therefore often be, in substance, to remove to the courts the determination of matters that a statute reposes in another. In my opinion, the courts should be very slow to extend the law of negligence to a new category that has such a consequence. (Cf Attorney-General v Prince & Gardner, supra, at 276.)
177There is, in my opinion, a real issue of coherence with administrative law if the law were to recognise a duty of care in the conduct of investigations, the laying of charges and the hearing of disciplinary proceedings. Where a decision-making process can be done again, then that should enable, in many cases, the injured party to be put in the same position as he or she would have been in the absence of error. However sometimes, as in the present case, it may not be likely or even possible that a new decision-making process can have such an effect. The line between the two will often be contestable. The coherence of the law, in my opinion, requires restraint even in such a context.
This, again, is to be accepted but does not address the precise issue. The facts here are not that, as in New South Wales v Paige, there was an investigation of a disciplinary kind with the laying of charges and a disciplinary hearing of them. That is not to say that the consideration by that case of the questions of law leading to this conclusion is limited in this way, but it is certainly not an articulation of a principle as described by Mr G Stretton SC, Senior Counsel for the Commonwealth, during oral argument, in answer to a question from me as follows:
HIS HONOUR: So are you saying you can’t get damages for negligent administrative action at all?
MR STREETON[sic]: That’s right.
Mr Stretton cited Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 (Precision Products) at 128-9; [117]-[120] as authority for his answer, where Allsop P, with whom Beazley and McColl JJA agreed, said:
118 It is unnecessary to repeat the considerations discussed by the Chief Justice in Paige at the above pages, which I gratefully and respectfully adopt. The duty contended for here amounts, in substance, to the assertion of a compensatory claim for administrative error: cf Dunlop v Woollahra Municipal Council [1982] AC 158; Takaro Properties Limited v Rowling[1986] 1 NZLR 22; and Rowling v Takaro Properties Limited [1988] AC 473.
119 The lack of coherence between administrative law doctrines and the imposition of monetary compensation for the flawed or failed exercise of governmental power is illustrated later in these reasons in the discussion of breach of the posited duty. As will be seen, if standards of administration are to be regulated and enforced by recourse to the recovery of damages at common law, the courts must necessarily become involved, not just in the constitutional role of ensuring legality, but also in laying down standards of administrative conduct by reference to a standard of reasonable care. This standard setting and its enforcement by the courts would be in relation to the exercise of power of another branch of government and in circumstances where there exist machinery and techniques for the setting and maintenance of good administration and good government. The courts, of course, play a central role in that machinery in supervising the legality of the activity of government. To infuse common law duties and the recovery of damages in such a field as the issuing of notices under s 91 where governmental (EPA supervision) and legal (judicial review) controls already exist would introduce an undesirable incompatibility and lack of coherence to the regime of environmental protection.
120The above is not to deny the continued force of Caledonian Collieries v Speirs and like cases. When a Council examines a power to build a structure, approve a plan, give permission for an act or otherwise engage in activity, it may well be required (on pain of liability in damages) to exercise care in relation to someone who may be affected by the power’s exercise. What tends to strike at the coherence of administrative law here is the positing of a duty to exercise reasonable care not to make a flawed decision by, for instance, failing to give procedural fairness or failing to confine the power within statutory limits. Such a duty, as contended for here, would tend to open public authorities to the spectre of compensation for flawed decision making, in circumstances where the validity of the exercise of power can be tested and resolved by judicial review, and where standards of competence and skill are well able to be dealt with by an appropriate regime of governmental administration.
I do not consider that any of these decisions support the proposition that a public authority, such as the Commonwealth, is not liable in negligence in respect of any administrative action.
While the matters raised at [119] of the Precision Products do come close to supporting Mr Stretton’s submission, due weight must be given to the reservation at [120]. In particular, it seems to me quite possible to argue that to facilitate and duly process an application for membership of a superannuation scheme is, in the words of Allsop P, to “engage in an activity”.
This also has resonance with the comments of Gaudron J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 19; [27], where her Honour said:
Legislation establishing a statutory body may exclude the operation of the common law in relation to that body’s exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. That is why distinctions are sometimes drawn between discretionary and non-discretionary powers, between policy and operational decisions and between powers and duties. Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power.
Footnotes omitted.
The matters of administrative action in respect of which a public authority, such as the Commonwealth, will be liable in negligence are certainly circumscribed by the need for coherence (the absence of the forked tongue). This is an important issue. In the case of service provision, however, such as the receipt and processing of matters like applications for a service where the public authority is the only deliverer of such a service, different considerations may apply. There will also need to be considerations such as the knowledge (actual or constructive) by the public authority that the conduct will cause the claimed harm (salient feature (k), amongst others) referred to by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar at 676; [103].
For the reasons expressed by Mr R Davis, counsel for Mrs Corkhill, summarised above (at [43]), namely that, on the plain reading of the proposed amendments, what is claimed is that the Commonwealth should have taken Mr Corkhill’s application and dealt with it in the prescribed or appropriate manner, it seems to me that this is an activity of a kind for which neither the legislation nor the need for coherence in the law require that the Commonwealth owe no duty of the kind alleged.
Thus, the Commonwealth should have sought a certificate of service (Meredith v Commonwealth (No 2) at 463; [617], arranged any necessary medical examination Meredith v Commonwealth (No 2) at 404; [622]) and submitted the application to the relevant authority (Meredith v Commonwealth (No 2) at 467; [650]).
Accordingly, I do not read the proposed amendments as introducing a pleading that there was a duty that the application be approved, as submitted by the Commonwealth. Whether the application would or would not be approved must be a matter of evidence and would go to the issue as to whether there was any damage. If it is not, in fact, able to be shown that, on the balance of probabilities, the application would have been approved, there would be no damage. On the other hand, it could only be approved if it was duly processed and I read that term, “processed”, in the context of the kind of evidence given in Meredith v Commonwealth (No 2) at 416; [248] by Mr Robert Hunt, a Commonwealth officer between 1967 and 1999 who, inter alia, worked in the Establishments Branch of the Department of the Interior where the pay and conditions of employees such as Mr Corkhill were administered.
In my view, there is a basis for finding that there is arguably such a cause of action as pleaded in the proposed amendments. Accordingly, I so find. That, of course, is not to say that, at the final hearing, it must be held that there is such a cause of action. My finding is only that it is not manifest that there is no such cause of action. My finding also does not in any way suggest that the cause of action will be successful. That, of course, depends on the evidence to be led and I have not heard or seen any of it.
Mr Davis submitted that the Court is required to make the amendment because of r 501(a) of the Court Procedures Rules, referred to above (at [27]). That is to say, it is necessary to make the amendment so as to decide the real issues in the proceedings.
Even were I to find that this is so, that does not resolve the application. The cause of action arose outside the limitation period. Even if, and I need make no finding on this, the amendment will, in the terms of r 501(a) of the Court Procedures Rules, decide the real issues in the case, it seems to me that r 501 is still subject to an application for leave under r 502 and such an application is subject to the constraints imposed by r 503.
Same or Substantially the same facts
Since I have found that the proposed amendments will introduce a new cause of action and since the limitation period has expired, I must find, before the proposed amendments can be allowed, that they are appropriate and that the new cause of action arises out of the same or substantially the same facts as a cause of action already pleaded: r 503(4) of the Court Procedures Rules.
The present cause of action is pleaded as the breach of a duty “to include employees such as [Mr Corkhill] in Commonwealth superannuation”. While I have reservations about whether that is justiciable, it does seem to me to come close, if not actually amount, to the Commonwealth’s characterisation above (at [42]), that it is a duty to approve Mr Corkhill’s application, though the Commonwealth, in its submissions, referred (in my view inaccurately) to the cause of action in the proposed amendments, as a duty to approve Mr Corkhill’s application.
The approval requires, of course, the processing of the application, especially taking the steps referred to above (at [75]). As Mr Davis put the matter, they are anterior steps and, I add, preliminary but necessary, steps to the claimed inclusion. To prove that Mr Corkhill should have been included in Commonwealth superannuation, evidence about facts such as his term of employment, provision of a certificate as to future employment, his medical condition and the exercise of the relevant discretion would all have had to be adduced. These are matters that would have, for the cause of action pleaded in the current pleading, to be the subject of evidence. They are, however, at least substantially the same facts, if not the same facts as arise out of the cause of action to be pleaded in the proposed amendments.
One additional proposed amendment should be mentioned. This was to sub-paragraph 6(a), which presently is relevantly in the following form: “the Deceased requested information or advice ... about what was required in order to join Commonwealth Superannuation”. The proposed amendment would insert after “Deceased” the following “applied to join and/or”. Despite the slightly garbled result (which would be modified by the insertion of a comma between “join” and “Commonwealth”), the sense is clear.
This allegation is, of course, necessary for the plea in the proposed amendments that the Commonwealth was under a duty to process an application, since there must be an application for it to be processed. This (and the later matter in paragraph 6A to be inserted also by the proposed amendments) was the application to be processed.
It seems to me that this also arises from the same or substantially the same facts as those that arise in the pleading already made. While what happened in or about 1963 would have had very different consequences if it was a mere inquiry as opposed to an application, it involved an interaction between the Deceased and an officer of the Commonwealth and, to use the language of Thomas J in Draney v Barry, was part of the same story. This proposed amendment falls into the same category of permissible amendments, if appropriate, notwithstanding the expiry of the limitation period.
Duty owed to Mrs Corkhill
Having found that there is an arguable cause of action for a failure to facilitate and duly process Mr Corkhill’s application to join a Commonwealth superannuation scheme, arising out of the same or substantially the same facts as the cause of action already pleaded, the next question agitated was whether such a duty could be owed to Mrs Corkhill.
Although the written submissions of Mr Stretton SC, with him Mr M O’Meara, addressed this issue as if the cause of action pleaded in paragraphs 19 and 20 (including the proposed amendments) was one of negligent misstatement, it does not seem to me that this is so. The claim raised by the proposed amendments to paragraphs 19 and 20 (and some others) is one in negligence simpliciter.
Nevertheless, I must address the issue of whether the duty alleged in the proposed amendments is capable of being owed to Mrs Corkhill.
Clearly the duty, which I have found is arguably one that the Commonwealth owed, would be owed to Mr Corkhill. The question is whether it could also be owed to Mrs Corkhill.
There is no doubt that a duty can be owed to a person who is not in a direct physical or contractual relationship with the person on whom the duty is imposed. Thus, in Hill v Van Erp (1997) 188 CLR 159, the High Court held that the solicitor who prepared a will for a testator owed a duty of care in the execution of the will to an intended beneficiary. See also Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 231 per Lord Salmon.
It is also relevant to have regard to the salient features that apply. In this, I refer again to the helpful list set out in Caltex Refineries (Qld) Pty Ltd v Stavar, referred to above (at [58]). I do not need to refer to all of them.
Clearly, on the facts to be pleaded in the proposed amendments, there was a foreseeability of harm to Mrs Corkhill, having regard to the express statutory provisions entitling her to a reversionary benefit as set out in the 1922 Act and in the 1976 Act (salient feature (a)). The Commonwealth, by implementing and monitoring proper procedures, had substantial control over its employees so as to prevent such harm (salient feature (c)).
The statutes show a relevantly close relational proximity between Mr Corkhill and the Commonwealth but also of Mrs Corkhill as the spouse of an employee (salient feature (g)).
In addition, she was vulnerable to the Commonwealth in relation to processes over which she had no control and because she had little capacity to protect herself (salient feature (d)).
Liability, further, would not be indeterminate by a recognition of a duty owed to persons in the situation of Mrs Corkhill (salient feature (e)).
Particularly in the light of no specific submissions by the Commonwealth on this issue (as opposed to the issue of negligent misstatement), I am satisfied that it is sufficiently arguable that the Commonwealth owed a duty to Mrs Corkhill as would be pleaded by the proposed amendments.
Is it appropriate for the proposed amendment to be made?
The making of the amendments must also be appropriate. The Commonwealth raised two matters which were submitted to make the grant of leave to make the proposed amendments inappropriate.
The first was that there was no satisfactory explanation for the delay in applying to make the amendments. As noted above, the proceedings were commenced in February 2009 but the Application in Proceedings seeking leave to make the amendments was filed on 30 April 2014.
In Aon v ANU at 215; [103], the plurality said:
Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 [of the Court Procedures Rules] to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
Applications for an extension of time in which to commence proceedings usually require an explanation for the delay which amounted to the failure to commence the proceedings in time. See, for example, R v Meyboom (2012) 256 FLR 450 at 458-9; [51]-[52], where one consideration is that the applicant must show an “acceptable explanation for delay”. Given the similarity of an application to extend time for commencing proceedings to an application for amending an existing proceeding to add a cause of action that is otherwise statute-barred, it is unsurprising that this should be an issue for both applications.
This is, however, a consideration, not a pre-condition, and the court has a discretion which cannot be circumscribed in a way that inappropriately binds the court. There is a balancing exercise and, as Kirby J pointed out in Jackamarra v Krakouer (1998) 195 CLR 516 at 539; [65], there are no rigid rules. It is, as Lord Donaldson MR held in Norwich and Peterborough Building Society v Steed [1991] 2 All ER 880 at 885-6, the exercise of balancing competing interests and each relevant factor will have a different consideration in different circumstances.
Here, Mrs Corkhill’s solicitor made an affidavit in which he deposed to the reasons for the delay. He stated:
2.On 16 November 2013, His Honour Justice Refshauge handed down the decision Meredith v Commonwealth [2013] ACTSC 221. That proceeding involved similar causes of action to this matter. I subsequently received advice from Counsel and formed the view that the Statement of Claim and Reply in this matter should be amended in light of the findings in Meredith to:
(a)more clearly articulate the general negligence cause of action; and
(b)remove the breach of statutory duty cause of action.
3.As a result of conferences held by Snedden Hall & Gallop and Counsel with the Plaintiff and other witnesses in December 2013, I was further advised that it was appropriate to amend the Statement of Claim and Reply to further particularise the information or advice received by the Plaintiff’s late Husband (‘Deceased’). This information that we seek to now include emerged during the preparation of the witness affidavits, and prior to this time this information was not sufficiently clear to justify inclusion in the Statement of Claim.
The reference in the second paragraph is, in fact, to Meredith v Commonwealth (No 2).
The Commonwealth submitted that this was an inadequate explanation as “[t]here is nothing in [that case] which lends support to a cause of action for the allegedly negligent failure to ‘facilitate and duly process’ Mr Corkhill’s applications”. As a specific matter that is correct; it is, in fact, no answer for I did in that case, when addressing the issue of the claim by Mr Meredith in negligence, say at 443; [480]:
At issue, however, was whether there was a duty of care owed to Mr Meredith by the Commonwealth. One of the difficulties in approaching this issue is that Mr Meredith did not articulate the precise duty of care that he said was owed. This is not only important for a court tasked with identifying whether such a duty exists, but also because of the difficulty in avoiding an articulation that creates its own problems.
It was, therefore, not unreasonable for Mrs Corkhill’s lawyers to review the Statement of Claim with a critical eye to meet my criticism.
I regard this as a reasonable explanation for the delay.
The second matter was that there would be prejudice to the Commonwealth because the new cause of action
... will require an investigation of the Commonwealth’s administrative processes between 51 and 45 years ago. There are obvious likely difficulties which will hamper the Commonwealth associated with the retention of records, the survival of witnesses and (if they are still alive) their capacity to remember the events of the distant past which Mrs Corkhill seeks to litigate.
Reference was made to the well-known comment by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 that there is deemed to be prejudice in delay even if it cannot be specifically articulated. Thus, as the Commonwealth pointed out, in Thomas v Queensland [2001] QCA 336, the Court of Appeal in Queensland declined to permit amendments to stand which would have required consideration of the alleged negligence 60 years previously. The prejudice, the court held, was too significant.
That was, however, a different matter. In this case, the extant pleading, namely the duty “to include” Mr Corkhill in Commonwealth superannuation, would have already required the investigation that the Commonwealth submits the pleading in the proposed amendments would require. That is to say, the unamended Statement of Claim has already put the Commonwealth on notice of the same issue. Indeed, the allegation is that no steps at all were taken to facilitate or process Mr Corkhill’s application so the suggested investigation would hardly take the Commonwealth very far in its defence, indeed they may be irrelevant.
I have carefully considered whether there are other matters that make it inappropriate to permit the proposed amendment. In my view, there are not.
Balancing the interests of the parties, I am of the view that it is appropriate to give leave to make this proposed amendment.
Conclusion on amendment to negligence claim
Accordingly, I find that it is appropriate to make the amendments proposed and that they plead a new cause of action that arises out of the same or substantially the same parts as a cause of action for which relief has already been claimed.
The only question is as to what is encompassed by this leave. It appears to be that, in addition to the amendments to sub-paragraph 19(g) and 20(g), others are really ancillary to them. These were not the subject of separate argument, although general opposition was expressed by the Commonwealth to them.
These are:
1. The insertion of “applied to join and/or” after “the Deceased” in sub-paragraph 6(a).
2. The omission of sub-paragraph 19(a) to (d) both inclusive.
3. The insertion of “in a timely and efficient manner” after “to disseminate” in sub-paragraph 20(f) and in the same sub-paragraph the insertion of “the Deceased to” before “and” then after “correct”, the insertion of “the” after “correct” and the insertion of “previously given to him” after “misrepresentation” and “(such as him)” after “employees”.
4. The insertion of “take reasonable and timely steps” after “to” where first occurring in sub-paragraph 20(h) and the insertion of “and correct” after “cease”, the substitution of “in the workplace that” for “concerning the eligibility of” in the same sub-paragraph and for the insertion of “(such as the Deceased) were not eligible” after “employees”.
Amendment to Claim for Negligent Misstatement
The first claim actually made in the Statement of Claim is a claim for damages caused by the two allegedly negligent misstatements made in 1957 and 1963.
As pleaded, they omit matters that effectively link any claim to Mrs Corkhill. For example, there is no allegation that any of the statements said to be negligent misstatements were made to her or that she relied on them, though there is an express claim that Mrs Corkhill suffered loss and damage as a result.
What the proposed amendments under this head are intended to do are to correct the failings in the pleading so as to make it clear that the claim that employees and therefore agents of the Commonwealth had negligently made misstatements which representations were conveyed to Mrs Corkhill, is expressly that those persons must have had or been assumed to have had in contemplation that Mrs Corkhill would have been aware of matters that would lead them to know or be taken to know that Mrs Corkhill would be informed of the representations and that she relied on them.
Various issues could be taken about this matter. Indeed, it might be expected that the Commonwealth could have considered an application to strike out the claim in negligent misrepresentation in its present form but it did not do so. That, however, cannot form part of my consideration, except as a matter that may be relevant to any discretion I must exercise.
The Commonwealth opposed the grant of leave to make the proposed amendments under this heading on the basis that they did not result in a cause of action known to the law being pleaded. Thus, it put its opposition as follows:
58.The essential vice of the [Amended Statement of Claim, namely the Statement of Claim as amended by the proposed amendments] in this respect is that it fails to disclose the required nexus between the receipt of the allegedly negligent representations, reliance on them by Mrs Corkhill, the duty said to be owed to Mrs Corkhill and the loss suffered by Mrs Corkhill for which she claims damages.
59.This is because:
(a)the representations pleaded at 5 – 6A of the ASoC are representations made to Mr Corkhill;
(b)there is no allegation of any representations made to Mrs Corkhill by any one for or on behalf of the Defendant, only the allegation is that Mr Corkhill communicated the information he received to Mrs Corkhill (paragraph 7A);
(c)the subject matter of the representations pleaded at 5 – 6A of the ASoC is Mr Corkhill’s eligibility to join the superannuation scheme established by the 1922 Act;
(d)although paragraphs 8 and 9 of the ASoC purport to plead reliance by Mrs Corkhill, they do not actually do so:
(i)paragraph 9(a) is concerned with the making of further inquiries concerning Mr Corkhill’s eligibility to join the Commonwealth superannuation scheme. Those inquiries would naturally be made by Mr Corkhill. The amendment of the paragraph to lapse into the passive voice is an unsuccessful attempt to obscure that obvious fact. It is not suggested, nor could it be rationally suggested, that Mrs Corkhill had either the means, the inclination or the capacity to make her own inquiries independent of her husband of his eligibility to join the Commonwealth superannuation scheme;
(ii)paragraph 9(b) pleads ‘the Deceased not becoming a member of the Commonwealth superannuation”. That paragraph pleads a bare fact and but pleads no action taken or omission made by Mrs Corkhill. To the extent that any act of reliance underlies it, it is Mr Corkhill’s reliance – a fact the lapse into the passive voice again unsuccessfully attempts to obscure;
(iii)paragraph 9(c) pleads no reliance by Mrs Corkhill and pleads only a state of mind; namely, Mr and Mrs Corkhill’s belief that Mr Corkhill was ineligible to join the Commonwealth superannuation fund ‘by reason of what the deceased had been told’; and
(e)the content of the duty pleaded in paragraph 19 of the ASoC is a duty to provide correct information to Mr Corkhill, not Mrs Corkhill;
(f)the relevant matter which leads to the loss for which Mrs Corkhill claims damages is Mr Corkhill’s failure ‘to join Commonwealth superannuation’ (see paragraph 21 – 22, ASoC).
Although I have mentioned them, it is not necessary to deal with sub-paragraphs 59(e) or (f) for they relate to paragraphs of pleading of the cause of action in negligence simpliciter and not the cause of action in negligent misrepresentation. I have dealt with those issues earlier (at [39]-[96]).
In Meredith v Commonwealth (No 2) at 429-30; [387]-[388], I set out the principles in relation to the establishment of a duty of care in the cause of action in negligent misstatement or negligent misrepresentation, saying, after tracing the history of the cause of action:
387.The principles were helpfully summarised by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] Aust Torts Reports 81-692 at [715] as follows:
The decision established that a duty of care in a negligent misstatement case exists to avoid purely economic loss if —
(i)the advice is required for a purpose which is known to the adviser when the advice is given;
(ii)the plaintiff relied upon the statement made by the defendant;
(iii)the adviser knows the advice will be communicated to the plaintiff either specifically or as a member of an ascertainable class in order to be used for the purpose;
(iv)that the adviser, expressly or impliedly, undertook the responsibility of exercising reasonable care in making the statement;
(v)it is expressly or impliedly known that the advice is likely to be acted upon without independent enquiry;
(vi)that the plaintiff, in reliance upon the statement, suffered loss.
388.As Brennan CJ said in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 252:
But, in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and that it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making the statement or giving the advice.
Of course, to found a complete cause of action, the representation or advice or information has to be inaccurate and there has to be a want of care in the representor making it.
The question of whether a person to whom the representation has not been directly made is owed the duty of care is one that is not entirely settled, at least as to its extent. Clearly, there is an issue (within the salient features – feature (l)) of the indeterminacy of liability that, without appropriate limits, this would bring.
Nevertheless, it has long been recognised that such persons, that is other than the direct representor, may be owed the duty, though the other circumstances (foreseeability, reliance, etc) must also be satisfied.
In BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221, Wootton J considered that beneficiaries of a trust (the third plaintiffs) were owed such a duty not to make negligent misstatements in a valuation given by the defendant to the trustee of the trust (the plaintiff) in which they had invested. His Honour held that a disclaimer that the valuation “report is for the use only of the party to whom it is addressed and no other party” was not effective to exclude such liability. The duty was assumed, his Honour held, because of the knowledge of the party making the valuation of the use to which the trustee would, for its own purposes, be required to put the valuation. His Honour concluded at 237:
I have earlier pointed out that the Hedley Byrne duty is generated not by mere proximity but by the assumption of responsibility, but that this does not mean that a subjective intention to assume responsibility has to exist or to be found. I have also concluded that the present case is one in which, although there was a contract with BT, and although the duties of Raine & Horne under the contract did not extend to the third plaintiffs, the situation was such that in the absence of a disclaimer of liability to the third plaintiffs, Raine & Horne would be taken to be accepting such responsibility. Hence it was not merely a question of whether it said or did something more to assume responsibility. It was a question of whether it disclaimed a responsibility which it would be taken to have assumed in the absence of a clear disclaimer.
More recently in Kestrel Holdings Pty Ltd v APF Properties Pty Ltd (2009) 260 ALR 418, the Full Court of the Federal Court of Australia imposed liability on the valuer for negligent misstatement in a valuation to a party whose identity was not known to the valuer and who was not the party who requested the valuation (namely Boyd Partners Pty Ltd) but who was, in the event, the client of that party, being APF Properties Pty Ltd. The Court said at 441; [108]:
Each case must be decided on its own facts. The lack of specific knowledge of the identity of APF does not of itself mean that no duty of care was owed to APF. The proposition to that effect inverts the appropriate inquiry. A duty of care arises where the valuer knew or ought to have known that the valuation would be acted upon in connection with some matter of business or serious consequence by a client of Boyds.
I consider that, though these cases both relate to valuers, the principle they identify is wider and applies to persons who could be said to be within the reasonable contemplation of the representor, whoever that may be. This is clear, in my view, from the wide formulation of item (iii) by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] Aust Tort Reports 81-692, as cited above (at [120]).
Certainly, Dawson J did admit of the possibility of such liability, though being somewhat hesitant about when it is available, in what his Honour said in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 252. See also the speech of Lord Bridge of Harwick in Caparo plc v Dickman [1990] 2 AC 605 at 621-3 and his citation, with approval, of the dissenting judgment of Lord Denning in Candler v Crane Christmas & Co [1951] 2 KB 164 at 179, 180-1, 182-4. These provide support for the subsequent development to which I have referred.
In my view, the proposed amendments, if permitted, would plead an arguable cause of action, given the statutory context and determination of the class of persons other than the immediate representee to which Mrs Corkhill belonged.
This disposes of the objections in paragraph 59(a) and (b) of the Commonwealth’s submissions set out above (at [117]). I do not understand the force of objection in paragraph 59(c) and it was not the subject of oral submission or further expansion.
I turn then to objections in paragraph 59(d). The first point (in sub-paragraph 59(d)(i)) seems to challenge the evidence rather than the pleading. The pleading is clear in proposed sub-paragraph 9(a) that part of the reliance was that no further inquiries were made by either Mr Corkhill or Mrs Corkhill. So far as Mrs Corkhill was concerned, the Commonwealth suggests that she would not be likely to make the relevant inquiry and that she could not rationally be suggested to have the means, capacity or inclination to make the inquiries. Apart from the rhetorical flourish of “could not rationally be suggested” (which might be offensive to Mrs Corkhill, of whose capacities, inclination, determination or concern for her future financial welfare I have no evidence) this is a matter for which evidence would be required. That is not a matter for the pleading.
As to the problem identified by the objection in sub-paragraph 59(a)(ii), I accept that the amendment is clumsy. The clumsiness can be rectified by permitting part of the proposed amendment and refusing part. The sub-paragraph (with the chapeau) currently reads:
The Deceased did in fact rely upon the information or advice provided by the representors by thereafter
...
(b) refraining from becoming a member of the Commonwealth Superannuation.
The proposed amendment would add “and the Plaintiff” after “Deceased” and omit “refraining from” and substitute “the Deceased not”. The effect of the challenge would be largely resolved by permitting the first proposed amendment and permitting the words “the Deceased” to be inserted at the beginning of (b) but refusing to permit the omission of “refraining from” or the insertion of “not”. That refusal would be because permitting it would, if the objection is valid, which I consider that it arguably is, would otherwise add a matter that did not plead an arguable cause of action or part of one.
The objection in sub-paragraph 59(d)(iii) is more problematic. Reliance is part of the causation required to link the breach of the duty of care to the damages which must be proved. Without damage, there is no cause of action. Indeed, as pointed out by the Court of Appeal in Innes v Commonwealth [2015] ACTCA 33 at [28], damage is often said to be the gist of negligence.
That damage can only occur, it seems to me, if a plaintiff in a claim for damages for negligent misstatement has either taken some step or failed to take a step he, she or it could or would have taken in reliance on the misstatement. It is difficult to see how acceptance of the truth of such a statement or belief in it sounds in damages in itself.
On the other hand, the acceptance of or belief in such a statement by such a person will sometimes be a step (perhaps not a necessary step) in the taking or refraining from taking a particular step leading to loss or injury or other harm sounding in damages.
This then may be a relevant fact to show that the step taken or not taken was, in fact, a result of the reliance by a plaintiff on the negligent misstatement. That does not seem to me to be unarguable.
Accordingly, the claims to be pleaded by Mrs Corkhill in the proposed amendments are not unarguable and may, therefore, be allowed.
The questions that remain, though not raised by the Commonwealth, are whether the pleading is a separate cause of action and, if so, whether it arises from the same facts as a cause of action already pleaded.
The answer to the first question – do the proposed amendments seek to plead a new cause of action? – is not entirely clear to me. Mrs Corkhill has pleaded that, as a result of the Commonwealth’s negligence (constituted by the negligent misstatements) she had suffered loss and damage. This is a cause of action she has pleaded. She has, however, not pleaded it adequately, for as the Commonwealth pointed out she did not adequately plead the receipt by her of the misstatement nor expressly her reliance.
The proposed amendments would, as I have said above (at [116]), rectify these omissions, completing the pleading. That does not seem to me to be, or the pleading of, a new cause of action, but the rectification of an inadequate pleading.
I have been unable to find any authority on this issue, so I must rely on principle. It seems to me that, where the cause of action is inadequately pleaded, a court can still properly identify the cause of action. Where a cause of action is inadequately pleaded the court can permit amendment to allow the pleading to rectify the inadequacy: Mann v Cahill (1999) 149 FLR 298 at 299.
For example, if the claim pleaded the existence of a duty of care and a breach of that duty but did not plead that damage had been caused to the plaintiff as a result, the court could reasonably find that this was a claim in negligence, though inadequately pleaded. To permit an amendment to plead that damage was caused to the plaintiff by the alleged breach of the pleaded duty of care would not, in the ordinary sense, be pleading a new cause of action, but would be an amendment to plead effectively the cause of action sought, though inadequately, to be pleaded.
There will, of course, be a point where the pleading is so deficient that it discloses no cause of action at all and, in that case, it may be that any amendment would result in the pleading of a new cause of action.
After careful consideration, I have come to the view that this is not that case. Accordingly, on the ordinary principles applicable under r 502 of the Court Procedures Rules, I would permit the amendment.
The amendments to be permitted are as follows:
1. To insert a new sub sub-paragraph after the chapeau to sub-paragraph 7(b) “(iA) was married (or if not, was likely to marry before his retirement)”.
2. To insert at the end of sub-paragraph 7(b)(i) (before “; and”) “namely to provide for his financial security (and if he was married, or if he married before retirement, the financial security of his wife) upon retirement”.
3. To insert at the end of sub-paragraph 7(b)(ii) (before “; and”) “and it was likely that the advice would be communicated to his wife (the Plaintiff) and that she would also rely on and depend upon that advice”.
4. To insert at the beginning of sub-paragraph 7(b)(iii) “that, having regard to the provisions of the Superannuation Act 1922, and, after 1 July 1976, the Superannuation Act 1976, and, after 1 July 1990, the Superannuation Act 1990, the Deceased”.
5. To insert a new paragraph 7A as follows: “The Deceased communicated the information he received in response to each of the first, second and third requests to his wife (the Plaintiff)”.
6. To insert into paragraphs 8 and 9, “and the Plaintiff” after “Deceased”.
7. To omit in sub-paragraph 9(a) “his” and substitute “the Deceased’s”.
8. To insert at the beginning of sub-paragraph 9(b) “the Deceased not”.
9. To insert a new sub-paragraph 9(c)
accepting the truth of the advice and continuing to believe that the Deceased was not eligible to join Commonwealth superannuation by reason of what the deceased had been told.
Additional Misrepresentation
The third proposed amendment is to plead a further misstatement by the insertion of a new paragraph 6A as follows:
6A.In or about 1969:
(a)the Deceased applied to the Defendant; through the TWU, to join Commonwealth superannuation (the “third request”).
(b)In response to the third request the deceased was informed that a person in the Defendant’s management (who the Plaintiff cannot identify) had responded that:
(i)the Deceased was not entitled to join Commonwealth superannuation;
(ii)the Deceased was only a temporary employee; and
(iii)temporary employees were not entitled to join Commonwealth superannuation.
The context is that, of Mrs Corkhill’s pleaded causes of action in negligent misstatement, she pleads in the Statement of Claim two allegations of statements made in or about 1957 and then in 1963, both of which were negligently wrong.
This pleading that the proposed amendment would introduce is a new occasion, in 1969, when not only is it to be alleged that incorrect information was given to Mr Corkhill, but that he again made an application to join Commonwealth superannuation.
Mr Davis accepted that this was a new representation and, as such, a new cause of action. It alleges a cause of action the limitation period for which has expired.
In Meredith v Commonwealth, I had to address a very similar issue where Mr Meredith, similarly to the claims here, alleged that negligent misstatements had been made to him about his eligibility to join a Commonwealth superannuation scheme. He sought, at the commencement of the hearing to add an additional statement, also said to be incorrect, supplying advice to Mr Meredith on a different occasion to those already pleaded and to a person not then referred to in the Statement of Claim.
I refused the application. I did that overnight, commenting that there was a degree of urgency, leaving me without the luxury of careful thought and consideration as I noted in the passage extracted above (at [36]).
I was invited by Mr Davis to reconsider my decision and he submitted that this was, in any event, a different situation. He also referred me to an authority which I had not addressed, Rodgers v Commissioner of Taxation (1998) 88 FCR 61.
As to Meredith v Commonwealth, I say immediately that I am prepared to reconsider a decision in appropriate circumstances and, if I am wrong, to acknowledge that and change my mind to what I am then satisfied is correct. Like Lord Denning in Sparham – Souter v Town and Country Developments (Essex) Ltd [1976] QB 858 at 869, I am prepared to recant if I am wrong.
I have, however, re-read my decision and am satisfied that it remains a correct application of the law to the facts. In that sense, it stands in the way of the proposed amendment, for the proposed amendment is to add a further representation to Mr Corkhill about Commonwealth superannuation and an application to join a scheme. That is, relevantly, on all fours with the position I addressed in Meredith v Commonwealth.
Mr Davis then submitted that the proposed amendment was in the nature of a particular of the cause of action already pleaded. It was, thus, in a position distinguishable from that in Meredith v Commonwealth, where what was sought was to add another cause of action. He submitted that it came within the comment of Thomas J in Draney v Barry at 164; [57] that the facts “... arise out of substantially the same story as that which would have to be told to support the original cause of action”.
I see two problems in this. In the first place, Thomas J was referring to a new cause of action, which Mr Davis has disavowed this proposed amendment to be pleading. In the second place, it does not seem to me that the description applies. That is to say, the proposed amendment refers to events in 1969. The currently pleaded cause of action refers to events pleaded in 1957 and 1963 relating to persons whom Mrs Corkhill cannot identify but whose likely identity Mrs Corkhill has suggested in the amendments to which the Commonwealth has consented. There is no suggestion in the proposed amendment that the relevant officer of the Commonwealth was one of these persons.
The error may be in the submission of Mr Davis as follows:
24.2.12While it is true that a single negligent misstatement is itself capable of giving rise to a cause of action, it is also a particular application of the broader cause of action for damages for breach of duty to avoid pure economic loss, and can also constitute particulars under an action pleaded on the basis of ‘salient features’.
Mrs Corkhill is suing for economic loss caused by negligent misstatement but that is not how it is pleaded nor how it should be pleaded; it is necessary to identify the statement made, the duty to make it, the negligence in its making and the damages caused. This is why paragraphs 5 and 6 are pleaded, not as particulars but as material facts. Paragraph 6A to be inserted by the proposed amendment does just that for a further instance, a separate cause of action and not a mere particular of a generic cause of action.
It may be that evidence could be admitted of the facts alleged in the proposed amendment to support a finding that there was ignorance amongst senior officers of the Departments of Works, the Interior and Administrative Services about the eligibility of temporary employees to join Commonwealth superannuation, namely, as described by Mr Davis, as “part of a pattern of conduct”, as relevant to the presently pleaded allegations but that is a different matter and does not now concern me. Evidence is, of course, not to be pleaded: Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd at 31; [31].
While, as in Meredith v Commonwealth, the proposed amendment would not sound in additional damages, it is, nevertheless, a separate cause of action. Each misstatement is a separate cause of action.
So far as the application to join a Commonwealth superannuation scheme is concerned, this may be seen as a necessary fact for the cause of action that is pleaded in the proposed amendments I have already allowed. It is, however, again a separate occasion to that claimed in paragraph 6 of the Statement of Claim, as amended in accordance with the approval I have already agreed to give.
Alternatively, Mr Davis relied on Rodgers v Commissioner of Taxation where the Court permitted a liquidator to add, by amendment to his claim against the Commissioner, for recovery of amounts of group tax and penalties paid by the company in liquidation being claimed voidable preferences, two further payments, although the amendments were made after the limitation period under s 588FF of the Corporations Law (Cth) for such claims to be made.
The Court held that, while these were additional causes of action (a finding that is consistent with my finding in Meredith v Commonwealth), they arose out of substantially the same facts already pleaded for the claims already made. The Court said at 70:
No doubt it is correct to say each payment amounted to a separate transaction; nonetheless we consider these additional claims arise out of substantially the same facts as those pleaded to support the original claims. The additional claims are said to be part of a pattern of conduct extending over a period of approximately eight months and involve allegations identical in form to those of the earlier claims. The additional payments were both made within five weeks of the date of the last payment specified in the original application. The requirements of O 13, r 2(7) [the equivalent of r 503(4) of the Court Procedures Rules) are satisfied in respect of these two payments.
I do not accept that this is applicable to the proposed amendment by insertion of a paragraph 6A, which is a separate representation without any particular regularity or other relationship with the earlier ones, other than as evidence of a widespread ignorance of the position of temporary employees with respect to superannuation. It seems to me that it is more appropriate to describe it as I did in Meredith v Commonwealth at [34], as follows:
Here, however, all the facts will be new and none will overlap. The representation is different, the words used may be the same as others or similar but are those of the representor. The relationship will be a different one. It seems to me that the amendment does not arise out of the same or substantially the same facts.
Accordingly, I would not grant leave to amend the Statement of Claim by inserting the proposed paragraph 6A.
It was submitted by Mr Davis that, should I not find that the new paragraph 6A to be inserted by the proposed amendment because it was a new cause of action and did not arise out of the same or substantially the same facts, I should nevertheless permit the amendment but order that the practice not relate back to the date of the commencement of the proceedings.
Such an order may be made under r 514(4) of the Court Procedures Rules. The point of doing so was explained in the written submissions filed by Mrs Corkhill as follows:
This is because the Limitation Act is something that must be specifically pleaded by the defendant, and if it were pleaded then the Plaintiff is then entitled to plead to that defence in any Reply.
It is correct to say that a defence of the limitation bar must be pleaded. See Piscioneri v Reardon [2015] ACTSC 61 at [56].
Given the approach by the Commonwealth to the present application, I am satisfied that it would plead the limitation bar. Neither the written nor the oral submissions for Mrs Corkhill expressed what might be pleaded in the reply.
There are, it seems to me, only three possible matters that could be so pleaded: confirmation (s 32 of the Limitation Act), fraud or concealment (s 33 of that Act) or mistake (s 34 of that Act). On the material before me, there is nothing to suggest any of those matters could properly be raised. Certainly, there was no material to suggest that.
Having regard to this failure, I do not consider that it is appropriate to proceed in this way.
Conclusion
Accordingly, a large number of amendments are permitted but because of the complexity of the matter, I will make general orders permitting amendment and then require a new document to be prepared, consistent with these reasons and endorsed by both parties that it is so and, when it is delivered to my chambers, I will make in chambers an order that it be filed.
As Mrs Corkhill seeks an indulgence, she should pay the costs of the application, but those costs should not be assessed or payable until the proceedings are determined.
| I certify that the preceding one hundred and seventy-four [174] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2015 |
49
7