Jetcrete Oz Pty Ltd v Conway - [2015] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

Jetcrete Oz Pty Ltd v Conway & Anor [2015] QCA 272

PARTIES:

JETCRETE OZ PTY LTD
ACN 137 775 903

(appellant)v
AUSTEN JOHN CONWAY

(first respondent)MOUNT ISA MINES LIMITED
ACN 009 661 447
(second respondent/not a party to the appeal)

FILE NO/S:

Appeal No 6518 of 2015
SC No 5450 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 11 June 2015

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2015

JUDGES:

Fraser JA and Applegarth and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the respondent was injured while driving a truck down a service road in a mine – where the respondent brought proceedings for personal injuries against the supplier of the truck – where the respondent sought to make various amendments to the statement of claim after the limitation period had expired – where the appellant alleged that some of the amendments raised a new cause of action – where the primary judge found that the amendments constituted further and better particulars of an existing cause of action – whether the primary judge erred in allowing the amendments

Uniform Civil Procedure Rules 1999 (Qld), r 376(4)

Borsato v Campbell [2006] QSC 191, cited
Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited
James v The State of Queensland [2015] QSC 65, cited
Murdoch v Lake[2014] QCA 216, cited
Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, cited
Thomas v State of Queensland[2001] QCA 336, cited
Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, cited
Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, cited

COUNSEL:

A P J Collins, with J P D Trost, for the appellant
G F Crow QC, with E J Williams, for the respondent

SOLICITORS:

HBA Legal for the appellant
Slater & Gordon Lawyers for the respondent

FRASER JA: I agree with the reasons for judgment of Applegarth J and the orders proposed by his Honour.
APPLEGARTH J: The respondent, Mr Conway, was injured on 25 December 2010 when he was driving a cement truck down an unpaved service road in a mine. The truck was supplied by the appellant, Jetcrete. In his Notice of Claim and in his proceeding for personal injuries, Mr Conway describes how he came to hit his head on the roof of the cabin of the truck, causing serious injuries to his cervical spine. In essence, his case is that his injuries were caused by two conditions: the state of the road and…

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: [2015] QCA 272
Decision Date: 11 December 2015

CaseChat Overview and Summary

Jetcrete Oz Pty Ltd appealed against a decision of the District Court of Queensland which allowed the respondent, Conway, to amend his statement of claim after the limitation period had expired. Conway was injured while driving a truck down a service road in a mine. He brought proceedings against Jetcrete Oz Pty Ltd, the supplier of the truck, for personal injuries. Conway sought to make various amendments to his statement of claim after the limitation period had expired. Jetcrete Oz Pty Ltd alleged that some of the amendments raised a new cause of action. The primary judge found that the amendments constituted further and better particulars of an existing cause of action. Jetcrete Oz Pty Ltd appealed the decision.

The legal issue in this case was whether the primary judge erred in allowing Conway to amend his statement of claim after the limitation period had expired. Jetcrete Oz Pty Ltd argued that some of the amendments raised a new cause of action, which would not be permissible. The court considered whether the amendments were further and better particulars of an existing cause of action, or whether they raised a new cause of action. The court held that the amendments were further and better particulars of an existing cause of action, and did not raise a new cause of action. Therefore, the primary judge did not err in allowing the amendments.

The court found that the primary judge did not err in allowing Conway to amend his statement of claim after the limitation period had expired. The court held that the amendments were further and better particulars of an existing cause of action, and did not raise a new cause of action. The court found that the primary judge's decision was correct, and dismissed the appeal. The court also ordered that Jetcrete Oz Pty Ltd pay Conway's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jetcrete Oz Pty Ltd v Conway & Anor [2015] QCA 272
PARTIES:	JETCRETE OZ PTY LTD ACN 137 775 903 (appellant)v AUSTEN JOHN CONWAY (first respondent)MOUNT ISA MINES LIMITED ACN 009 661 447 (second respondent/not a party to the appeal)
FILE NO/S:	Appeal No 6518 of 2015 SC No 5450 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 11 June 2015
DELIVERED ON:	11 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2015
JUDGES:	Fraser JA and Applegarth and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed. 2. The appellant pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the respondent was injured while driving a truck down a service road in a mine – where the respondent brought proceedings for personal injuries against the supplier of the truck – where the respondent sought to make various amendments to the statement of claim after the limitation period had expired – where the appellant alleged that some of the amendments raised a new cause of action – where the primary judge found that the amendments constituted further and better particulars of an existing cause of action – whether the primary judge erred in allowing the amendments Uniform Civil Procedure Rules 1999 (Qld), r 376(4) Borsato v Campbell [2006] QSC 191, cited Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited James v The State of Queensland [2015] QSC 65, cited Murdoch v Lake[2014] QCA 216, cited Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, cited Thomas v State of Queensland[2001] QCA 336, cited Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, cited Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, cited
COUNSEL:	A P J Collins, with J P D Trost, for the appellant G F Crow QC, with E J Williams, for the respondent
SOLICITORS:	HBA Legal for the appellant Slater & Gordon Lawyers for the respondent