Hoffmans (a firm) v Ahmed - [2021] WASCA 210

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HOFFMANS (A FIRM) -v- AHMED [2021] WASCA 210
CORAM:   QUINLAN CJ
MITCHELL JA
ALLANSON J

HEARD:   21 SEPTEMBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   CACV 73 of 2020
BETWEEN:   HOFFMANS (A FIRM)
Appellant
AND
FAYSAL YUSUF AHMED
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
Citation: AHMED -v- HOFFMANS (a firm) [2020] WADC 82
File Number            :   CIV 1278 of 2019

Catchwords:

Practice and procedure - Appeal from a decision of the primary judge refusing to strike out an amended writ of summons - Where indorsement on original writ was defective - Whether amendment added or substituted a new cause of action which was statute‑barred

Legislation:

Limitation Act 2005 (WA), s 14(1), s 46, s 47
Rules of the Supreme Court 1971 (WA), O 2 r 2, O 6 r 1, O 21 r 1
Workers' Compensation and Injury Management Act 1981 (WA), s 93K, s 93L, s 93M

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M D Cuerden SC
Respondent	:	B W Ashdown

Solicitors:

Appellant	:	Popperwell & Co
Respondent	:	Premier Compensation Lawyers

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Glendinning v Cuzens [2009] WASCA 21
Morgan v Banning (1999) 20 WAR 474
Rossen v Airey [2012] WASCA 26
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234

JUDGMENT OF THE COURT:

Summary

The appellant (Hoffmans) seeks leave to appeal against the primary judge's decision refusing to strike out a writ of summons issued by the respondent (Mr Ahmed) in the District Court of Western Australia. Hoffmans contends that the indorsement of claim on the writ was defective, and any amendment to cure that deficiency must involve the addition of a new cause of action outside the relevant limitation period.
For the following reasons, leave to appeal should be refused and the appeal should be dismissed. While the original indorsement was deficient, the deficiency was cured by an amended writ of summons filed on 16 May 2019. While that amendment was clearly made outside the relevant limitation period, it did not involve the addition or substitution of a new cause of action. The amendment was authorised by O 21 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules).

Background

On 20 October 2011, Mr Ahmed lodged a workers' compensation claim with Swan Transit Services Pty Ltd (Swan Transit) in respect of an injury sustained in his work as a bus driver on 11 October 2011. He engaged Hoffmans, a firm of solicitors, to represent him in relation to that claim in early November 2011. It appears to be common ground that the 'Termination Day', by which time Mr Ahmed could elect to retain the right to seek damages in respect of the injury,[1] was 13 October 2012. Mr Ahmed did not make an election by that day, with the result that he lost the right to claim damages in respect of his injury.
[1] See Workers' Compensation and Injury Management Act 1981 (WA), s 93K(4), s 93L(4) and s 93M(1) (as it then was).
On 10 April 2013, Hoffmans wrote to Mr Ahmed in the following terms:
YOUR WORKERS COMPENSATION CLAIM
We refer to previous correspondence in this matter.
Unfortunately we must advise you to seek another solicitor to represent you in the matter of your workers compensation claim.
We suggest that you contact the Law Society (9322 7877) in this regard to find another lawyer to represent you.
This recommendation has proven necessary because we did not arrange for you to be medically reviewed prior to the expiry of your Termination [Day] of 13 October 2012.
We will forward your file to your new solicitor (or you) upon request.
On 16 December 2018, Mr Ahmed wrote to Hoffmans indicating that he intended to sue Hoffmans for damages for loss of his common law claim against Swan Transit as a result of Hoffman's negligent failure to arrange for him to be medically reviewed prior to the Termination Day.
On 19 February 2019, solicitors for Hoffmans' professional indemnity insurers responded. The solicitors contended that any cause of action Mr Ahmed had against Hoffmans accrued when he lost his right to pursue damages on 13 October 2012. The solicitors contended that the limitation period for commencing a claim against Hoffmans expired on 12 October 2018.
There followed correspondence in which Mr Ahmed or his solicitors contended, and the solicitors for Hoffmans disputed, that Hoffmans' letter of 10 April 2013 constituted a confirmation of the cause of action for the purposes of s 46 and s 47 of the Limitation Act 2005 (WA). The effect of those provisions in that event would be to extend the limitation period for Mr Ahmed to commence an action against Hoffmans to 9 April 2019.
On 4 April 2019, Mr Ahmed issued a writ of summons against Hoffmans, which contained the following indorsement:
THE PLAINTIFF'S CLAIM is for damages for losses caused to the Plaintiff in the form of a loss of opportunity and/or loss of chance as a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents on or about 10 April 2013.
AND THE PLAINTIFF CLAIMS damages and interest …
On 2 May 2019, Hoffmans applied to strike out the writ of summons. On 16 May 2019, Mr Ahmed filed an amended writ of summons, purportedly pursuant to O 21 r 1 of the Rules, which contained the following amended indorsement:
THE PLAINTIFF'S [CLAIM] is for damages for losses caused to the Plaintiff in the form of loss of opportunity and/or loss of chance as a result of negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents on or about ~~10 April 2013~~ 13 October 2012.
The claim relates to the Defendant failing to properly advise and/or protect the Plaintiff[']s common law termination day as required under the Workers['] Compensation and Injury Management Act 1981, acknowledged for the purposes of section 47 of the Limitation Act 2005 in a letter from the Defendant to the Plaintiff dated 10 April 2013.
AND THE PLAINTIFF CLAIMS damages and interest …
A statement of claim pleading a cause of action of the kind described at [5] and [9] above was filed on 3 July 2019.
On 11 November 2019, a deputy registrar of the District Court made orders striking out the indorsement on the original writ, the amended writ and the statement of claim. The deputy registrar ordered that any application to substitute a new indorsement be brought by 20 September 2019. Mr Ahmed made such an application on 17 September 2019. On 4 December 2019, the deputy registrar dismissed the application, and ordered that the writ of summons be struck out and the action be dismissed.
Mr Ahmed appealed against the above orders. On 12 June 2020, the primary judge allowed the appeal and set aside the orders referred to at [11] above. The effect of the primary judge's orders was to reinstate the amended writ of summons and allow Mr Ahmed's claim to proceed on the statement of claim.
In making those orders the primary judge identified, as the critical issue, whether the amendment to the writ of summons involved the addition of a new cause of action. If it did, then the cause of action would be time‑barred as, on the most generous view in Mr Ahmed's favour, the limitation period expired on 9 April 2019. The primary judge resolved the issue in the following terms:[2]
In assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly.[3] What must be identified in an indorsement are critical events which give rise to the relief claimed, without, of course, descending to the factual particularity appropriate to a statement of claim. The ambit of the action commenced by the writ is determined by reference to the facts asserted, and not by reference to any legal labels or categories which may or may not have been used in the indorsement.[4]
I do not consider that the indorsement adds a new cause of action. It particularises a cause that was already there, namely negligence. It is not a case like Rossen v Airey[5] where the amendment would introduce a new cause of action, by alleging a different tort to that alleged on the original indorsement, at a time when that cause of action was clearly statute‑barred.
[2] Primary decision [65] - [66].
[3] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [46](c).
[4] Belgravia Nominees [10].
[5] Rossen v Airey [2012] WASCA 26.

The appeal to this court

Hoffmans appeals against the primary judge's orders on the sole ground that:
The learned primary judge erred in fact and in law in finding that the amendments purportedly made to the indorsement of claim on or about 16 May 2019 did not add or substitute a new cause of action, and in failing to find that they did add or substitute a new cause of action and accordingly were plainly statute-barred.
As the orders are interlocutory, Hoffmans requires leave to appeal. The application for leave to appeal has been referred to the hearing of the appeal.

The issue for determination

Order 6 r 1 of the Rules requires that, before a writ is issued, it must be indorsed with 'a concise statement of the nature of the claim made, and of the relief or remedy required in the action'.
As explained by McLure J (Wheeler J agreeing) in ABB Service Pty Ltd v Hetherington,[6] an indorsement on a writ serves three functions:
(1)to mark out the perimeter within which a plaintiff may frame a statement of claim, consistently with O 20 r 2(2) of the Rules;
(2)to identify the cause of action for limitation purposes; and
(3)to provide notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action.
[6] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 (ABB Service No 1) [7] - [10].
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.[7] What must be identified in an indorsement is the critical events which give rise to the relief claimed, without descending to the factual particularity appropriate to a statement of claim.[8] In relation to issues of limitation, there is no requirement that an indorsement contain all of the relevant facts necessary to establish the date of accrual of the cause of action. However, there should be sufficient factual information in the indorsement to predetermine the limitation outcome. That is, the facts in the indorsement should enable a factual trail to be pursued which will result in identification of the date on which the cause of action accrued.[9]
[7] ABB Service No 1 [11].
[8] Belgravia Nominees [10].
[9] ABB Service No 1 [16] - [17].
In the present case, there is no question that the indorsement on the original writ of summons was deficient. However, that deficiency does not make the writ of summons a nullity.[10] The deficiency may be cured by amendment to the indorsement on the writ. That amendment was able to be made without leave before pleadings in the action were deemed to be closed so long as, relevantly, the amendment did not involve the addition or substitution of a new cause of action.[11]
[10] Order 2 r 2(1) and r 2(2) of the Rules; ABB Service Pty Ltd v Hetherington [2001] WASCA 417 (ABB Service No 2) [6]; Glendinning v Cuzens [2009] WASCA 21 [27].
[11] Order 21 r 1(1) and r 1(3)(b) of the Rules.
It is also common ground that the indorsement on the amended writ of summons is adequate, and there were no discretionary reasons for refusing to allow that amendment to stand if it did not add or substitute a new cause of action.[12] Further, it is common ground that the limitation period for the cause of action identified in the amended writ of summons expired by 9 April 2019. This is not a case where it is necessary to allow the amendment and leave the resolution of the limitation question for determination at trial.[13] Hoffmans will have an unanswerable limitation defence if the amendment made on 16 May 2019 added or substituted a new cause of action.
[12] As to which see Glendinning [31] - [35].
[13] Compare Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, 533 and Belgravia Nominees [47].
Accordingly, the critical question determinative of this appeal is whether the amendment to the indorsement made on 16 May 2019 added or substituted a cause of action different to the cause of action identified in the indorsement to the original writ of summons issued on 4 April 2019. Counsel for the appellant accepted this to be the critical question.[14]
[14] Appeal ts 2 - 3.

Disposition

The appellant's submission is essentially that the original indorsement was so defective that it did not identify any cause of action. Because no cause of action was ever identified in the original writ of summons, any cause of action identified in the amended writ of summons must necessarily be a new cause of action.[15] As the submission recognises, a cause of action for these purposes comprises the material facts which entitle a plaintiff to relief, rather than references to the old forms of action, or legal labels or categories, which may be used in the indorsement.[16]
[15] Appeal ts 13 - 14.
[16] Morgan v Banning (1999) 20 WAR 474, 486; Belgravia Nominees [10].
A similar argument was run by the appellant in ABB Service No 2, and rejected by the court on the basis that it failed to recognise the difference between an indorsement of claim on a writ of summons and a statement of claim. As the court noted in that case, O 6 r 1(1) of the Rules does not require a plaintiff to plead the material facts which entitle the plaintiff to relief. The omission of material facts, per se, does not render an indorsement defective.[17] Rather, what is required in an indorsement of claim is merely a 'concise statement of the nature of the claim made'. The fact that the indorsement does not identify all the material facts necessary to constitute any cause of action does not mean that any cause of action subsequently pleaded must be a new cause of action.
[17] ABB Service No 2 [25] - [26]; see also Belgravia Nominees [10].
The following general principles as to permissible amendments to a writ of summons were stated in Belgravia Nominees:[18]
(a)limitation legislation, and the defences provided by limitation legislation, operate by reference to the commencement of proceedings in relation to a cause of action, and not by reference to subsequent steps in the course of proceedings, unless that subsequent step is seen as the 'commencement' of a proceeding by the addition of a new cause of action;
(b)if an amendment does not involve the addition of a new cause of action, no question of limitation arises;
(c)in assessing, as a matter of impression and degree, whether an amendment involves the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation, and will construe an indorsement generously, rather than narrowly;
(d)if the amendment does involve the addition of a new cause of action after the time for commencement of proceedings in respect of that cause of action has expired, no doctrine of 'relation back' or rule of court can prevent a defendant from invoking and relying upon a limitation defence;
(e)a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived;
(f)however, in a case in which a defendant indicates an intention to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such a defence would defeat the claim.
[18] Belgravia Nominees [46].
The question in the present case is whether the amendments made on 16 May 2019 fall within the parameters or framework of the original, admittedly defective, indorsement. That is, does the amendment merely particularise, clarify or expand the cause of action identified (albeit defectively) in the original indorsement?[19]
[19] ABB Service No 2 [27]; Rossen v Airey [35].
This is not a case where the indorsement contained a positive statement of the material facts which were different to the cause of action now sought to be advanced. Problems of that kind have arisen in defamation cases, where the cause of action comprises a particular publication of an allegedly defamatory statement. In those cases, the original indorsement may identify a particular publication. The publication may be identified by reference to the person making the publication, the person or class to whom or which publication was made or the statement which was published. In these cases, an amendment to refer to a different publication than that identified in the original indorsement may involve the addition of a new cause of action. That may be so even where there is an error in the indorsement and where the target at which the drafter of the indorsement was aiming is apparent.[20]
[20] See, for example, Rossen v Airey [31] - [35].
As Owen J (Malcolm CJ and Kennedy J agreeing) observed in Dye v Griffin Coal Mining Co Pty Ltd:[21]
[Q]uestions such as whether a claim is 'new' or whether it arises substantially from the same facts are largely and often questions of degree. This is essentially a matter of impression and, unless it can be shown that the trial judge misdirected himself [or herself] or failed to take relevant factors into account, an appellate tribunal will be slow to interfere. (citation omitted)
[21] Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431, 434.
Further, in determining what the words of the indorsement expressly or impliedly convey,[22] the court is entitled to look beyond the terms of the writ.[23]
[22] See Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234 [19].
[23] Rossen v Airey [27].
When the original indorsement in the present case is considered against the background of the correspondence previously exchanged between the parties, the critical events giving rise to the relief claimed are clear. They concern Hoffmans' negligent failure to arrange, or provide advice in relation to, a medical examination which would have enabled Mr Ahmed to make an election to retain the right to seek damages before the Termination Day. That negligent failure is alleged to have caused Mr Ahmed to lose the opportunity or chance to pursue a damages claim against Swan Transit. The cause of action which was the subject of the proceedings was, as counsel for Hoffmans frankly conceded, readily apparent to a person in Hoffmans' position.[24] Further, the cause of action which is the subject of the amendment falls within the description of a claim for damages for losses caused to Mr Ahmed in the form of a loss of opportunity or chance as a result of Hoffmans' negligence, contained in the original indorsement.
[24] Appeal ts 5 - 6.
The only inconsistency between the cause of action identified in the amendment and the text of the original indorsement is the date: 10 April 2013. The original indorsement was ambiguous as to whether 10 April 2013 was the date on which Hoffmans were negligent or the date on which Mr Ahmed sustained the claimed loss. It is unnecessary to resolve that ambiguity, as both the claimed loss and the claimed negligence occurred before that date. However, the date on which the negligence or loss occurred is not a material fact necessary for Mr Ahmed to establish before relief can be claimed. Rather, it is merely a particular of the loss or damage which constitute that cause of action. The amendment of the erroneous particular as to when the claimed negligence or loss occurred, without any change to what constitutes the claimed negligence and loss,[25] does not involve the addition of a new cause of action.
[25] Contrast Dye (434 - 435).

For these reasons, in our view the cause of action identified in the amended writ of summons and pleaded in the statement of claim falls within the parameters or framework of the original indorsement. The amendment merely particularises, clarifies or expands the cause of action within the scope of the nature of the claim concisely (albeit deficiently) stated in the original indorsement. It does not add or substitute a new cause of action.
Counsel for Hoffmans contended that the primary judge took a wrong approach in the second paragraph quoted at [13] above, by focussing on the form of action (negligence or defamation) rather than the material facts constituting the cause of action. While there is force in that submission, the primary judge was correct in his ultimate conclusion that the amendment to the indorsement did not add a new cause of action.

Orders

For the above reasons, in our view the amended writ of summons did not add or substitute a new cause of action outside the limitation period. The sole ground of appeal is not established. Having regard to the lack of merit in the ground of appeal, and the public interest against the fragmentation of litigation by interlocutory appeals, we would refuse leave to appeal and dismiss the appeal.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
9 DECEMBER 2021