Fisher Firearms (Wholesale) Pty Ltd v Carole Schrenk Mariner No. Scciv-03-1657

[2003] SASC 413

FISHER FIREARMS (WHOLESALE) PTY LTD v
CAROLE SCHRENK MARINER
[2003] SASC 413

Civil

1. DEBELLE J This is an application for leave to appeal from a decision of a magistrate refusing to strike out a statement of claim. The applicant also seeks an order pursuant to s 49 of the Supreme Court Act 1935 that the appeal be heard by the Full Court. For the reasons which follow, the matter is not one which merits being referred to the Full Court pursuant to s 49 of the Supreme Court Act.

2. The plaintiff, who is the respondent in these proceedings, is a widow. Her husband died on 16 July 1999 having shot himself in the defendant’s gun shop. The plaintiff issued proceedings out of the Adelaide Magistrates Court against the defendant claiming damages for the wrongful death of her husband in the defendant’s shop.

3. There is no action at common law for wrongful death and, if the plaintiff has a claim, it is pursuant to s 19 of the Wrongs Act, 1936.

4. The plaintiff commenced the action on 17 July 2002 but did not serve the summons until 16 July 2003. An action for damages pursuant to s 19 of the Wrongs Act must be commenced within three years after the death of the deceased person: s 21 of the Wrongs Act. It will have been noticed that the plaintiff commenced the proceedings on the last day available under the Wrongs Act, 1935 and served them on the penultimate day for service.

5. The defendant applied to strike out the plaintiff’s claim on the ground that it disclosed no cause of action. The defendant submitted that, by reason of the expiry of the limitation period, it was not open to the plaintiff to amend the statement of claim to plead s 19 of the Wrongs Act. The magistrate dismissed the defendant’s application. The defendant now applies for leave to appeal to this Court.

6. In her statement of claim, the plaintiff pleads the facts on which she relies. Paragraph 5 of the claim is in these terms:

   “The Plaintiff brings this action for a claim of loss of dependency resulting from the deceased’s wrongful death on 16 July 1999 at the registered premises of the Defendant.”

   The material facts are then pleaded. The statement of claim then recites the circumstances in which the plaintiff’s husband shot himself. Paragraph 16 of the particulars of claim then reads:

   “The wrongful death of the deceased was caused by the negligence of the defendant, by the actions of its servants or agents.”

   The claim then gives particulars of the negligence. In para 19 it is pleaded:

   “The wrongful death of the deceased described herein was caused by the negligence of the Defendant and as a result of the negligence of the Defendant the Plaintiff has suffered loss of dependency.”

   The defendant says that the statement of claim pleads a common law action for damages for wrongful death.

7. Rule 24 of the Magistrates Court Civil Rules, 1992 is in these terms:

   “24(1) (a)  Subject to any order of the Court a short form of pleading disclosing the date(s), place(s), circumstances and the cause of action upon which the action is based is sufficient.

   (b)     If the Court requires a more detailed pleading the pleading must comply with the Supreme Court Rules 1987.”

   The defendant contends that, by reason of the failure to plead s 19 of the Wrongs Act, the plaintiff has not complied with Rule 24 in that she has failed to plead a cause of action known to the law. The defendant’s argument is to the effect that a claim for damages for wrongful death is not a cause of action known to the common law, that the only entitlement to maintain such an action is pursuant to s 19 of the Wrongs Act, that a statutory cause of action is a separate cause of action and must be separately pleaded, with the consequence that the plaintiff is, by her amendment, seeking to plead a new cause of action outside the Statute of Limitations contrary to the law in Weldon v Neal (1887) 19 QBD 394.

8. The defendant’s first difficulty is that the plaintiff has not, in her pleading, relied on any nominated cause of action. She has simply pleaded the facts and circumstances of her claim and has claimed damages for the wrongful death of her husband. The consequence of the fact that there is no common law action for wrongful death is that the plaintiff must be claiming damages pursuant to s 19 of the Wrongs Act. There could be no other basis upon which the plaintiff could be bringing her claim. The circumstances of this case are to be contrasted with the case where the plaintiff sues, say, in contract, and later, when out of time, seeks to amend the claim to include a claim in negligence. It is to be contrasted also with a case where a plaintiff sues in negligence and, when out of time, seeks to add a claim for a breach of a statutory duty: cf. Cutrona v Harnischfeger of Australia Pty Ltd [1977] VR 306.

9. The object of the rule in Weldon v Neal is to prohibit a person from adding a new claim or a new cause of action after the statement of claim has expired: Marshall v London Passenger Transport Board [1936] 3 All ER 83 and Robinson v Unicos Property Corporation Ltd [1962] 1 WLR 520. The rule applies where the new cause of action which is sought to be pleaded is essentially different from the claim as originally pleaded.

10. Shortly stated, the plaintiff seeks to plead a statutory cause of action in circumstances where no cause of action has been pleaded and the only available cause of action is the statutory cause of action. She is not pleading a new cause of action but simply identifying her actual cause of action. By her amendment, the plaintiff seeks only to spell out what is manifestly obvious. The position is little different from a case where the plaintiff had, say, nominated the incorrect provision in the Wrongs Act and later sought to amend her claim to plead the correct provision, that is to say, to plead s 19. I do not think, therefore, that there is any bar to the proposed amendment.

11. Another means by which the same conclusion might be reached is to consider the meaning of the expression “cause of action” in Rule 24. In the context of Rule 24, the expression “cause of action” means the essential ingredients in the title to the right it is proposed to enforce: Williams v Milotin (1957) 97 CLR 465 at 474. To like effect is the observation of Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245:

    “The concept of a ‘cause of action’ would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue.”

    Reference might also be made to the remarks of Diplock LJ in Letang v Cooper [1965] 1 QB 232 at 242 – 243:

    ”A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. Historically, the means by which the remedy was obtained varied with the nature of the factual situation and causes of action were divided into categories according to the ‘form of action’ by which the remedy was obtained in the particular kind of factual situation which constituted the cause of action. But that is legal history, not current law ... . The Judicature Act, 1873, abolished forms of action. It did not affect causes of action; so that it was convenient for lawyers and legislators to continue to use, to describe the various categories of factual situations which entitled one person to obtain from the court a remedy against another, the names of the various ‘forms of action’ by which formerly the remedy appropriate to the particular category of factual situation was obtained. But it is essential to realise that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles one person to obtain from the court a remedy against another person. To forget this would indeed encourage the old forms of action to rule us from the grave.”

    That this is a well-established meaning of the expression “cause of action” is demonstrated by the reasons of Court of Appeal in Jackson v Spittall (1870) LR 5 C.P. 542 at 552. Thus, when Rule 24 uses the expression “causes of action”, it means the facts which give rise to a right to sue. This is not to create a tautology in Rule 24. If this definition of “cause of action” is inserted into the rule, Rule 24(1)(a) reads:

    “Subject to any order of the Court a short form of pleading disclosing the date(s), place(s), circumstances and the facts which give rise to the right to sue upon which the action is based is sufficient.”

    When examined in this way, it is apparent the plaintiff has complied with Rule 24. All that the pleader has omitted is to plead the plaintiff’s reliance on s 19 of the Wrongs Act. If the plaintiff is permitted to amend in order to answer the strike out application, the plaintiff is doing no more than curing the omission. She is adding nothing new.

12. This conclusion is consistent with the principle that if the pleader states the material facts, then the legal consequences which flow from those facts need not be pleaded: Karsales (Harrow) Ltd v Wallis [1956] 2 All ER 866 at 869, and the more detailed observations of Lord Denning MR to the same effect in Drane v Evangelou [1978] 2 All ER 437. The only legal consequences that can flow from the facts as pleaded is a claim under s 19.

13. There is yet a further reason for this conclusion. The immediate predecessor of Rule 24 required pleadings to comply with the Supreme Court Rules. It is apparent from the terms of Rule 24 and, in particular, Rule 24(1)(b) that it is intended to provide a rule more liberal in its operation than the present rule. A pleading complying with the Supreme Court Rules will only be necessary if the Magistrates Court so orders. I do not think that, when it altered the terms of Rule 24, the Magistrates Court intended to create a provision which is more technical and more onerous in operation than its predecessor. The very fact that Rule 24 requires that the pleading be a short form of pleading points to that conclusion, as does the fact that the Court may, if it considers it necessary, require a more detailed pleading which complies with the Supreme Court Rules.

14. For all of these reasons, the magistrate correctly dismissed the defendant’s application. It follows that the defendant’s application for leave to appeal should be dismissed.