Howlett v Dobson Mitchell & Allport - [2008] TASSC 65

[2008] TASSC 65

CITATION: Howlett v Dobson Mitchell & Allport [2008] TASSC 65

PARTIES:  HOWLETT, Colin Horace and
  HOWLETT, Roslyn Gladys
  trading as C H & R G HOWLETT
  v
  DOBSON MITCHELL & ALLPORT (A FIRM)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  465/04
DELIVERED ON:  7 November 2008
DELIVERED AT:  Hobart
HEARING DATE:  29 October 2008
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Statement of claim – Pleadings obviously bad in law.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
           Plaintiffs:  D F Zeeman
           Defendants:  D J Gunson SC
Solicitors:
           Plaintiffs:  Butler McIntyre & Butler
           Defendants:  Gunson Williams

Judgment Number: [2008] TASSC 65
Number of paragraphs: 18

Serial No 65/2008
File No 465/2004

HOWLETT & ANOR v DOBSON MITCHELL & ALLPORT

REASONS FOR JUDGMENT HOLT AsJ
7 November 2008

Mr & Mrs Howlett have sued their former solicitors claiming damages for breach of contract and negligence. They have applied for leave to amend their statement of claim.

Omitting unnecessary matters of detail the background is as follows.

h The Howletts were the operators of an earthmoving business. They say that in 1987 they were engaged to carry out some subdivision work for Mr Donald Hurburgh and that their accounts were not fully paid. The contract provided that interest would be payable on outstanding accounts at 18 percent per annum compounded at six monthly intervals. On 8 September 1987 the Howletts issued a writ against Mr Hurburgh claiming payment of about $40,000 alleged to be due under the contract. There was no claim for interest at the contract rate. The action remained unresolved and in May 1990 the Howletts retained solicitors Dobson Mitchell & Allport to act for them in the matter. DMA continued to act until May 1998, when the Howletts engaged new solicitors. It is alleged that in breach of the terms of their retainer and negligently DMA failed to apply to amend the statement of claim to include a claim for interest at 18 percent per annum.

hAn attempt to amend to add the interest claim was made by the Howletts new solicitors in 2002. See Howlett v Hurburgh [2002] TASSC 42. The attempt was unsuccessful because the statutory time limit for bringing the claim had passed. Crawford J (as he then was) said at pars11 – 14:
"11 … the claim for interest the plaintiffs now wish to raise is based on a new cause of action in a technical sense, as that expression was originally used by Susan Campbell in her article Amendments and Limitations: The Rule in Weldon v Neal (1980) 54 ALJ 643 at 645, which is that of a new cause of action involving a change in the legal categorisation of a plaintiff's claim. The term has been adopted in a number of cases and was referred to by the members of the Full Court in Ritchie & Parker Alfred Green & Co v Gornalle

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] TASSC 65
Decision Date: 7 November 2008

CaseChat Overview and Summary

The case of Howlett v Dobson Mitchell & Allport came before the Supreme Court of Tasmania and involved a dispute over the admissibility of an amended statement of claim. The plaintiff, Howlett, sought to amend his initial statement of claim after it was deemed obviously bad in law. The defendants, Dobson Mitchell & Allport, opposed the amendment, arguing that it should not be allowed as it was an attempt to introduce new causes of action that were not previously pleaded. The court was required to determine whether the plaintiff's application to amend the statement of claim was appropriate under the rules of court.

The central legal issue before the court was whether the plaintiff could amend his statement of claim to include new causes of action that were not initially pleaded. The court had to consider the provisions of the Supreme Court Rules of Tasmania, specifically those relating to amendments to pleadings and the circumstances under which such amendments should be allowed. Additionally, the court had to assess whether the proposed amendment would prejudice the defendants or cause any undue delay in the proceedings.

The court, after considering the arguments and the relevant provisions of the Supreme Court Rules, found that the plaintiff's application to amend the statement of claim was not permissible. The court held that the proposed amendments introduced new causes of action that were not initially pleaded and would significantly alter the nature of the proceedings. The court concluded that allowing such amendments would prejudice the defendants and cause undue delay. The court also found that the plaintiff's initial statement of claim was obviously bad in law, but that did not warrant an amendment that would introduce new causes of action.

The court ultimately dismissed the plaintiff's application to amend the statement of claim. The court ordered that the plaintiff's initial statement of claim, despite its deficiencies, would stand as the pleading for the purposes of the proceedings. The court also directed the parties to proceed with the trial based on the initial pleadings, ensuring that any issues regarding the adequacy of the pleadings would be addressed at that time.

Orders