M v Australian Capital Territory - [2012] ACTSC 20

M V AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 20 (3 February 2012)

PRACTICE AND PROCEDURE – pleading – statement of claim – negligence – foreseeability of risk – personal injury – pure mental harm – application to amend statement of claim – whether new cause of action – whether arising out of the same or substantially the same facts as existing cause of action – whether proposed amended statement of claim compliant with rules of pleading – Court Procedures Rules 2006, rules 406, 502, 503.

Civil Law (Wrongs) Act 2002, Pt 3.2, ss 32, 33, 34, 35, 36, 42, 43,44,45,46, 110
Court Procedures Rules 2006, Div 2.6.2, rr, 6, 21, 406, 502, 503

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Chappell v Coyle (1985) 2 NSWLR 73

Survival & Industrial Equipment (Newcastle) Pty Ltd (t/as SIE Liferaft Service) v Owners of the Vessel 'Alley Cat' (1992) 36 FCR 129

Meredith v Commonwealth of Australia [2009] ACTSC 168
Stone James (a firm) v Pioneer Concrete WA Pty Ltd [1985] WAR 233
Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1
Adam v Shiavon [1985] 1 QdR 1
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Golski v Kirk (1987) 72 ALR 443
Hamilton v Australian Capital Territory & Tonks [2011] ACTSC 45
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114

No. SC of 444 of 2009

Master Harper
Supreme Court of the ACT

Date: 3 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC of 444 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: M
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant

ORDER

Judge:  Master Harper
Date:  3 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

the plaintiff provide to the defendant in draft form a further amended statement of claim within twenty-one days.

the application be stood over to 2 March 2012 for submissions about the draft further amended statement of claim and about costs.

This is an application for leave to amend the plaintiff’s statement of claim. There is an issue between the parties as to whether the proposed amended statement of claim pleads a new cause of action. Senior counsel for the plaintiff submits that it does not, but that if it does, the court has a discretion to allow the amendment under rule 503 (4) of the Court Procedures Rules 2006.

Senior counsel for the defendant submits that even if the plaintiff persuades the court that no new cause of action is pleaded or that any new cause of action arises out of the same or substantially the same facts, leave to amend should not be granted.

The proceedings were commenced by originating claim on 10 May 2009. The plaintiff concedes that the limitation period for her claim has ended: that is to say, if the plaintiff had not already commenced proceedings, it would now be too late to do so.

The plaintiffs claim is for what is…

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: [2012] ACTSC 20
Decision Date: 3 February 2012

CaseChat Overview and Summary

In the case of M v Australian Capital Territory, the plaintiff, M, sought to amend her statement of claim to include a new cause of action for pure mental harm caused by the defendant, the Australian Capital Territory. The plaintiff originally sued the defendant for negligence, claiming physical injury resulting from the defendant's failure to provide adequate road safety measures. The defendant opposed the amendment, arguing that it introduced a new cause of action and did not arise out of the same or substantially the same facts as the existing cause of action. The court had to determine whether the plaintiff's proposed amendment was permissible under the Court Procedures Rules 2006.

The legal issues before the court were whether the proposed amendment introduced a new cause of action, whether it arose out of the same or substantially the same facts, and whether the proposed amended statement of claim complied with the rules of pleading. The court examined the pleading requirements under the Court Procedures Rules 2006, specifically rules 406, 502, and 503, to determine if the amendment was allowable. The court needed to assess if the amendment met the criteria for adding a new cause of action and if it was appropriate under the rules.

The court found that the proposed amendment introduced a new cause of action for pure mental harm, which was not part of the original statement of claim. However, the court noted that the new cause of action arose out of the same or substantially the same facts as the existing cause of action. The court further held that the proposed amended statement of claim was compliant with the rules of pleading. Consequently, the court ordered the plaintiff to provide a further amended statement of claim within twenty-one days. This allowed the plaintiff to proceed with her claim for pure mental harm, while ensuring compliance with the procedural rules.

Orders

Orders of the court

the plaintiff provide to the defendant in draft form a further amended statement of claim within twenty-one days.

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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