Draney v Barry

Case [1999] QCA 491

SUPREME COURT OF QUEENSLAND

CITATION:  Draney v Barry & Ors [1999] QCA 491
PARTIES:  PETER WILLIAM DRANEY and
BEVERLEY JUNE DRANEY
(plaintiffs/appellants)
v
DECLAN JAMES BARRY and IAN ROBERT FOOTE
trading as KREIS BARRY AND FOOTE
(defendants/respondents)
FILE NO/S:  Appeal No 11361 of 1998
SC No 603 of 1993
DIVISION:  Court of Appeal
PROCEEDING:  Appeal
ORIGINATING
COURT: 		 Supreme Court at Brisbane
DELIVERED ON:  30 November 1999
DELIVERED AT:  Brisbane
HEARING DATE:  2 September 1999
JUDGES:  McMurdo P, Pincus JA, Thomas JA (diss in part)
ORDER:  Appeal allowed so as to permit amendments raising the complaint covered by paras 5E, 5F and 5G of the proposed new pleading and by that part of para 5E(h) which refers to the option to purchase, and further to permit amendment of other parts of the proposed pleading supporting the claim that the option document did not properly reflect the intention of the parties to it.
Matter adjourned to allow parties to agree upon a formal
order giving effect to the Court’s intention and to annex
an amended statement of claim, failing which this Court
will make a further order.
No order made with respect to costs of the appeal.
CATCHWORDS:  PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – AMENDMENT – action for damages for negligence against a firm of solicitors – application to amend pleading – amendment adding new causes of action otherwise time-barred – when allowed - rule in Weldon v Neal – "very peculiar circumstances" test – application of O 32, r 1 Supreme Court Rules – application of r 5, r 375 and r 376 Uniform Civil Procedure Rules – effect of s 81 Supreme Court of Queensland Act 1991 providing general discretion to amend pleadings to include a new cause of action – whether refusal to allow amendments to pleading a correct exercise of discretion
Adam v Shiavon [1985] 1 QdR 1, applied
Lynch v Keddell (No 2) [1990] 1 QdR 10, applied
McGee v Yeomans [1977] 1 NSWLR 273, applied
Renowden v McMullin (1970) 123 CLR 584, distinguished
Weldon v Neal (1887) 19 QBD 394, distinguished
Yrttiaho v Public Curator (Queensland) (1971) 125 CLR
228, considered
Supreme Court of Queensland Act 1991, s 81
Supreme Court Rules, O 32, r 1
Uniform Civil Procedure Rules, r 5, r 375, r 376
COUNSEL:  Mr H B Fraser QC with him Mr C L Francis for the
appellants
Mr G A Thompson SC for the respondents
SOLICITORS:  Trilby Misso and Company for the appellants
Minter Ellison for the respondents

  1. McMURDO P: I have read the reasons for judgment of Pincus JA and Thomas JA in which the relevant facts and issues are stated.

  2. I agree with Pincus JA, for the reasons given by him, that when applications do not come within UCP r 376(4)(b) the court nevertheless has a general discretion under s 81 of the Supreme Court of Queensland Act 1991 to add a cause of action out of…

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Draney v Barry [1999] QCA 491
Case
[1999] QCA 491
Decision Date

CaseChat Overview and Summary

In the matter of Draney v Barry, the dispute involved a claim for damages for negligence against a firm of solicitors. The application in question sought to amend the pleadings to include new causes of action that were otherwise time-barred. This matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the refusal to allow the amendments to the pleadings was a correct exercise of discretion under the relevant rules and statutes, particularly the Supreme Court of Queensland Act 1991, and the Uniform Civil Procedure Rules.

The court examined the application of the rule in Weldon v Neal, which allows for amendments in "very peculiar circumstances," and considered the provisions of O 32, r 1 Supreme Court Rules, as well as r 5, r 375 and r 376 of the Uniform Civil Procedure Rules. The court also took into account the general discretion provided under s 81 of the Supreme Court of Queensland Act 1991. After thorough consideration of the arguments presented and the applicable legal principles, the court found that the refusal to permit the amendments was not a correct exercise of discretion. The appeal was allowed to permit the amendments raising specific complaints and to amend other parts of the proposed pleading to support the claim regarding the option document.

The court's reasoning highlighted the importance of allowing amendments where necessary to ensure justice is served and the true facts and intentions of the parties are reflected in the pleadings. The court's decision underscored the principle that the discretion to amend pleadings should not be exercised arbitrarily but rather in the interest of achieving a just outcome. The final orders permitted the amendments as outlined in the judgment, ensuring that the complaint could be properly addressed and the intention of the parties could be accurately represented.

Orders

Orders of the court

Appeal allowed so as to permit amendments raising the complaint covered by paras 5E, 5F and 5G of the proposed new pleading and by that part of para 5E(h) which refers to the option to purchase, and further to permit amendment of other parts of the proposed pleading supporting the claim that the option document did not properly reflect the intention of the parties to it.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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