Mannix Electrical Pty Ltd v Belport Pty Ltd - [2021] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MANNIX ELECTRICAL PTY LTD v BELPORT PTY LTD
[2021] SASC 115
Judgment of the Honourable Justice Parker
5 October 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
LIMITATION OF ACTIONS - GENERAL MATTERS - AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD - AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION
This is an appeal against the decision of a Master to grant leave to the respondent to amend a statement of claim to change the pleaded date of certain events pursuant to r 69.2 of the Uniform Civil Rules 2020 (SA).
The Master held that the proposed amendment to change the date from “about 2013” to “July 2012” did not give rise to a new cause of action, even if it did, that cause of action arose out of substantially the same facts as the existing causes of action.
Further, the Master declined to exercise the Court’s discretion to disallow the amendment. The Master did so on the basis that his Honour was not satisfied that the appellant would suffer any prejudice sufficient to require the Court to disallow the amendment.
The appellant appealed to this Court on four grounds, which in substance contend that the Master erred in finding that the proposed amended pleading was just changing a date and was not in substance an amendment to plead a cause of action that is out of time. Further, that the Master should have found that the proposed amended pleading sought to introduce new causes of action, or alternatively, that the Master erred in finding that newly introduced causes of action arose out of substantially the same facts.
Held, per Parker J, granting leave to appeal but dismissing the appeal:
1.The amendment in relation to the Product Pricing Representation, the Best Possible Pricing Representation and to the Competitive Pricing Representation gives rise to a new cause of action. However, the additional allegations brought within the statement of claim by the amendment of the relevant date from “about 2013” to “July 2012” arise out of substantially the same facts as the preceding statement of claim.
2.Given the uncertainty in how the respondent will go about proving a breach of the Referral Representation, and the conclusion that the additional allegations covered by the amendment arise out of substantially the same facts, it is it is unnecessary to determine whether the amendment relating to the Referral Representation will give rise to a new cause of action.

Australian Competition and Consumer Act 2010 (Cth) sch 2 s 236; Supreme Court Civil Rules 2006 (SA) r 55(7); Supreme Court Rules 1947 (SA) ord 28 r 1(5); Uniform Civil Rules 2020 (SA) r 69.2, referred to.
Meredith v Commonwealth [2009] ACTSC 168; Swietlik v Central Linen Service (1991) 56 SASR 569, applied.
21st Century Promotions Australia Pty Ltd v Telstra Corporation Ltd [2000] SASC 353; Brook v The Flinders University of South Australia (1988) 47 SASR 119; Garden Estate Hackham Pty Ltd v Angas Securities Ltd [2018] SASCFC 140; House v The King (1936) 55 CLR 499; Karasaridis v Kastoria Fur Products (1984) 37 SASR 345; Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd (2019) 133 SASR 408; Morgan v Banning (1999) 20 WAR 474; Read v Brown (1889) 22 QBD 128; Vaccarella v McNicol [1986] SASC 9375; Weldon v Neal (1887) 19 QBD 394; Williams v Milotin (1957) 97 CLR 465, discussed.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Brickfield Properties Ltd v Newton [1971] 1 WLR 862; Commonwealth v Cornwell (2007) 229 CLR 519; Pacific National Pty Ltd v Aurizon Network Pty Ltd [2016] QSC 218; Wardley v Western Australia (1992) 175 CLR 514; Westpac Banking Corporation v Hughes (2011) 278 ALR 145, considered.

MANNIX ELECTRICAL PTY LTD v BELPORT PTY LTD
[2021] SASC 115
Appeal to a Single Judge: Civil

PARKER J: On 3 September 2021, I dismissed this appeal but indicated that I would publish my reasons later. I adopted that course as I was about to commence several weeks leave and I did not wish to delay the matter any further. These are my reasons.
This is an appeal against an interlocutory decision made by a Master of this Court. The Master granted leave under r 69.2 of the Uniform Civil Rules 2020 (SA) to amend a statement of claim to change the pleaded date of certain events from “about 2013” to “around July 2012”. Because it was an interlocutory decision, leave to appeal was required. For the reasons that follow, I granted leave to appeal but dismissed the appeal.
Background
Mannix carries on a business that includes the retail sale, supply and installation of air conditioning units. Belport has operated a store at Kidman Park since 2003 as a franchisee of Mannix and also a store at Marion from 2006 to 8 September 2018.
The background to the franchise arrangements is that Mr Michael Costa was formerly employed by Mannix as a manager. He was invited to take over a Mannix store as an independent operator. Mannix agreed in about June 2003 that he could take over the Mannix business operated from premises at Kidman Park. Mr Costa then caused Belport to be incorporated on 2 July 2003.
On about 31 July 2003 Mannix entered into a written distribution agreement with Belport. Under the distribution agreement, Belport was appointed as a non‑exclusive distributor for Mannix products in South Australia for a period of 11 months from 1 August 2003. Belport warranted that it would purchase products exclusively from Mannix, with the prices of the products being fixed by Mannix. Belport agreed to pay the sum of $4,333.33 per month plus GST to Mannix for a corporate advertising plan. Belport also agreed to make payments of $3,500 per month to the Mannix executive superannuation fund and to make further rental payments to Mannix of $1,250 per month in respect of plant and equipment. Belport also agreed to pay a licence fee of 2% of total sales in excess of $2,500,000 per annum.
The distribution agreement expired on about 30 June 2004. However, Belport continued to make the payments of $4,333 per month plus GST in respect of the corporate advertising plan and to pay $1,250 per month to Mannix in respect of the rent of plan and equipment. Belport also continued to purchase products exclusively from Mannix.
In about June 2005 Belport and Mannix entered the first licence agreement. In about September 2006 the parties agreed that Belport would open a second store in the Marion area. In about 1 October 2006 they entered into the second licence agreement.
The initial period under the second licence agreement expired on 30 June 2007. However, the parties have continued to operate under that agreement which was not terminated until 30 November 2018. The agreement provided that if Belport continued to operate the business after the expiry of the agreement that would be on a month-to-month basis under the terms and conditions of the agreement.
Under the second licence agreement Belport agreed to pay Mannix a management services fee of $5,000 per annum and a licence fee of $10,000. Mannix agreed to invoice Belport for the proportionate share of the amount paid by Mannix for Yellow and White Pages corporate advertising based on the total number of licensees. The proportionate amount was to be confirmed and agreed between the parties prior to the start of the financial year. The parties also agreed to comply with the provisions of the Franchising Code of Conduct.
Belport alleges that Mannix made representations and warranties that all the products that it purchased from Mannix would be supplied at the price paid by Mannix plus 10% (the Product Pricing Representation).
Belport also contends that further or alternatively to the Product Pricing Representation Mannix represented that when Belport purchased the products from Mannix it was receiving or would receive the best possible price (the Best Possible Pricing Representation).
Further or alternatively to the Product Pricing Representation and the Best Possible Pricing Representation, Belport alleges that Mannix represented that Belport would receive pricing which was equal to or less than the best price at which Belport could purchase the products from suppliers other than Mannix (the Competitive Pricing Representation).
Belport further alleges that Mannix represented that the advertising contribution it was to pay would be its pro-rata share of the total advertising expenses incurred by Mannix in relation to the advertising of Mannix stores (the Advertising Representation).
Belport also alleges that Mannix represented that it would refer to Belport enquiries it had received for the supply of products in suburbs and postcodes nearest to the Kidman Park and Marion business premises, relative to other Mannix retail premises which were received by Mannix through its website and 1300 number (the Referral Representation).
The effect of the amendment to the statement of claim would be the substitution of the date “around July 2012” for “in or about 2013” for each allegation that Mannix had engaged in misleading and deceptive conduct by acting contrary to the several representations referred to in paragraphs [10] to [14].
Thus, for example, Belport sought to amend paragraph 46.1 of the statement of claim by deleting the words “in or about 2013” and substituting the words “around 2012” so that it reads:
46.1from around July 2012 (or such other date as may be ascertained after disclosure) the Products were not all supplied by the defendant to the plaintiff at the price paid by the defendant plus 10 per cent.
That amendment relates to the Product Pricing Representation. Amendments to the same effect are proposed in respect of each of the other representations, save for the Advertising Representation.
The allegation made at paragraph [43.5] of the statement of claim that there was a failure to comply with the Advertising Representation was not affected by the change to “around July 2012” from “in or about 2013”. However, it has been alleged at paragraph [79.15] of the statement of claim under the topic of unconscionable conduct that Mannix knew Belport was paying an amount in excess of its share of the advertising expenses from “around July 2012”.
The change to “around July 2012” from “in or about 2013” also applies to each of the other allegations of unconscionable conduct made against Mannix at paragraph [79] of the statement of claim in relation to the Product Pricing, Best Possible Pricing, Competitive Pricing and Referral Representations. Those four representations, together with the Advertising Representation, are collectively referred to as the “the Representations”.
Permission was also sought to amend paragraph 64 to vary the date from when Mannix allegedly resiled from the Representations in support of a contention that Mannix is estopped and it is unconscionable for it to now to do so.
The principle in Weldon v Neal and r 69.2
Rule 69.2 seeks to ameliorate the strictness of the principle stated by the English Court of Appeal in Weldon v Neal.[1] The facts in that case were that the plaintiff had commenced an action for slander but did not allege that she had suffered special damage. At trial, the action was non-suited on the basis that the alleged slander was not actionable without special damage. Subsequently, the Court of Appeal granted the plaintiff leave to amend her statement of claim. Thereafter, in addition to dealing with the defect in the claim for slander, the plaintiff made fresh claims alleging assault, false imprisonment and other causes of action. These fresh claims were statute barred at the time of the amendment although they had not been barred when the original writ was issued.
[1] (1887) 19 QBD 394.
Lord Esher MR held that amendments are not admissible when they prejudice the right of the other party as they existed at the date of the amendments. If an amendment were to be allowed that was barred by the statute of limitations that would allow the plaintiff to take advantage of her former writ to defeat the operation of the limitation period and to take away an existing right from the defendant. That would, “as a general rule”, be improper and unjust. It might be permitted in very peculiar circumstances but certainly not as a general rule. Lindley and Lopez LJJ published short judgments to the same effect.
Rule 69.2 provides as follows:
69.2—Amendment by consent or with leave
(1)     A party may amend a Claim or pleading (including to introduce an additional party)—
(a)by consent; or
(b)with the leave of the Court.
(2)     If leave is granted to amend a Claim or pleading—
(a)to add a cause of action that is statute barred;
(b)to add an applicant in respect of a cause of action that is statute barred; or
(c)to add a respondent in respect of a cause of action that is statute barred,
the amendment takes effect on a date fixed by the Court not earlier than the date on which the application for leave to amend was made or foreshadowed unless the Court makes an order under subrule (3).
(3)     The Court may order that the amendment relate back to the date on which the claim the subject of the amendment was instituted—
(a)if subrule (2)(a) applies—if the new cause of action arises out of substantially the same facts as the original cause of action; or
(b)if subrule (2)(b) or (c) applies—if the failure to join the additional party arose from a genuine mistake.
The Master’s reasons
The Master noted that there are two aspects of the claim advanced by the applicant (Belport). First, Belport alleges that the respondent (Mannix) engaged in misleading and deceptive conduct in the course of their commercial relationship. Secondly, Belport alleges that there has been a breach of contract. Mannix objects to the substitution of the date “July 2012” for “about 2013” as it says the effect would be to plead a cause of action that is out of time. It does so by pleading additional breaches of contract that are not based on the same facts. That is because each breach of contract is a cause of action in its own right. Belport says that it is not seeking to add additional causes of action but rather particularising the existing statement of claim.
The Master held that the proposed amendment to the date does not give rise to a new cause of action. However, even if a new cause of action that is out of time is being pleaded in the proposed amendment, that cause of action arises out of substantially the same facts as the existing causes of action. The Master explained that on the basis that the factual allegations are not being amended. The only amendment is to the date from which the respondent is alleged to be in breach of the contract. This indicates that the amendment arises out of substantially the same facts because there is no other amendment of fact.
The Master explained that conclusion on the basis that the action arises from a commercial arrangement between the parties. The allegations of misleading and deceptive conduct and breach of contract that have already been pleaded, will continue to apply without amendment. These are the relevant facts for the purposes of r 69.2(3)(a). That conclusion can be tested by asking what facts would need to be established to make out the case for the 2012 breaches. The Master indicated that it would be the same contract and the same representations relied upon by Belport in support of the existing claim. The Master noted that there will be a few new facts but these will be substantially the same as the facts that have already been pleaded. It is not necessary that the facts be completely identical, it is sufficient that they are substantially the same.
The Master also rejected the respondent’s submission that the Court should exercise its discretion to disallow the amendment. The basis for that submission was that nine years have passed since 2012 but the application to amend was not made until December 2020. However, the Master observed that the proceedings have been on foot for some years and the nature of the dispute was well known to Mannix. Accordingly, his Honour was not satisfied that any prejudice that might be suffered by Mannix was sufficient to require the Court to disallow the amendment.
The grounds of appeal
Mannix has advanced the following grounds of appeal:
1.   The learned Judge erred in finding that the proposed amendment to substitute the words “around July 2012” for the words “in or about 2013” on each instance it occurred in the proposed amended pleading was just changing a date and was not in substance an amendment to plead a cause of action that is out of time.
2.   The learned Judge should have found that the effect of pleading, by the amendment, events earlier than 2013, the applicant was seeking to introduce new causes of action for relief arising out of those earlier events.
3.   The learned Judge erred in finding in the alternative that if the amendment did introduce new causes of action, those causes of action arose out of substantially the same facts as the existing causes of action.
4.   The learned Judge should have refused leave to amend on the grounds that each said amendment was statute barred.
The appellant’s submissions
Mannix submits that the amendment proposed by Belport seeks to claim damages for breaches of contract, misleading or deceptive conduct and so forth by reason of the conduct of Mannix which allegedly occurred in the period from July 2012 to December 2012. The six-year limitation period for causes of action which had accrued in that period had expired long before the application to amend was made on 18 December 2020.
Mannix submits that where a party seeks to amend a statement of claim to plead additional facts that are earlier in time and which are said to give rise to a claim of the same legal nature (e.g. an earlier breach of contract), that involves the introduction of a new cause of action for the purposes of r 69.2(2). Mannix further submits that the new cause of action does not arise out of the same or substantially the same facts because the facts relied upon as giving rise to the cause of action are different and earlier in time than those contained in the existing statement of claim. Thus, the exception in r 69.2(3)(a) does not apply.
Counsel for Mannix referred to the observation by the High Court in Williams v Milotin that:[2]
… when you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce …
[2] (1957) 97 CLR 465 at 474 (the Court).
Counsel for Mannix has submitted that in this passage the High Court was referring to the material facts that give rise to the right of action. Consistently with that interpretation counsel has referred to a passage in the judgment of Wicks J in 21^st Century Promotions Australia Pty Ltd v Telstra Corporation Ltd[3] where his Honour cited the description of a cause of action by Lord Esher MR in Read v Brown as being:[4]
… every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
[3] [2000] SASC 353 at [67].
[4] (1889) 22 QBD 128 at 131.
Consistently with that line of authority, counsel also referred to the explanation of the term “cause of action” provided by Owen J of the Supreme Court of Western Australia in Morgan v Banning when discussing the operation of a rule similar to r 69.2 that:[5]
This issue falls away if the phrase “cause of action” in O 21, r 5(5) is understood in a narrow sense as meaning the basket of facts which give rise to the right to approach the court for relief rather than as the description of the right to sue by reference to the old forms of action. This must be so or the rule would be in conflict with the statute and, thus, ultra vires.
[5] (1999) 20 WAR 474 at 476.

That passage was adopted with approval by Refshauge J of the Australian Capital Territory Supreme Court in Meredith v Commonwealth.[6]
[6] [2009] ACTSC 168 at [22].
While noting that the existing statement of claim lacks particularity, Mannix submits that the material facts must be that there were occasions from 2013 onwards when a product was ordered by Belport and supplied by Mannix where the price charged by Mannix was greater than the cost to it plus a margin of 10%. While the alleged contractual obligation in each instance is the same, Mannix submits that each separate occasion of supply at a price that is alleged to be contrary to the parties’ agreement is an alleged set of material facts giving rise to a cause of action for breach of contract. That cause of action must be proved by Belport to succeed in its claim for damages.
Mannix further observes that each separate alleged breach of contract will have accrued on the date of breach and the statutory limitation period will have commenced to run from the date upon which that cause of action accrued. Each supply of goods that occurred between July and December 2012 will have resulted from an order placed by Belport which was wholly different and unrelated to any order placed in 2013 or thereafter. Those supplies would also have involved different products from those supplied later. The cost to Mannix of each product supplied to Belport must be determined by reference to events wholly different to those which determined the cost to Mannix of products that it supplied in 2013 or later. The price at which each such supply occurred will also be different to those that applied in 2013 and thereafter.
In that light Mannix submits that it is not the point that the legal category of claim made in respect of supplies in 2013 and thereafter is “breach of contract” and the legal category of claim sought now to be introduced in respect of supplies in the period from July to December 2012 is also “breach of contract”. The amendment seeks to introduce new causes of action because each alleged breach of contract necessarily arises out of different material facts to those alleged in the existing pleadings. If the new causes of action succeed, they will give rise to different damages for a different loss to those that have already been pleaded in respect of supplies in 2013 and later.
Mannix advances a broadly similar submission in relation to the claim for damages for misleading and deceptive conduct relating to the Competitive Pricing Representation. The existing statement of claim alleges that the misrepresentation was misleading and deceptive because from 2013 onwards Mannix did not supply the products to Belport at prices which were equal to or less than the best price which Belport could obtain those products from other suppliers and thereby suffered loss and damage.
Mannix submits that while the same representation is relied upon in each instance, loss is an essential element of a claim under s 236 of the Australian Consumer Law. The date on which loss is suffered is the date from which the cause of action runs.[7] For that reason, Mannix submits that to determine whether there has been a breach of the Competitive Pricing Representation it will be necessary to compare the prices at which products could have been obtained from potential alternative suppliers at the relevant time so as to determine whether there had been a breach of the representation and so as to identify any loss which would make the supply actionable.
[7] Wardley v Western Australia (1992) 175 CLR 514 at 525.
Mannix submits that it is not to the point that the legal category of claim that is sought to be made in the period from July to December 2012 is the same as that already pleaded. The amendment would introduce new causes of action because each new asserted loss is founded upon different material facts to those in the existing pleading.
In support of that contention Mannix relies upon a test propounded by Refshauge J in Meredith v Commonwealth.[8] I have considered the application of this test at [79] and [88] below. Mannix submits that under this test the proposed amendment does involve the pleading of new causes of action. It submits that whether a new cause of action arises out of substantially the same facts as the original cause of action is a question of degree.[9]
[8] [2009] ACTSC 168 at [23].
[9] Pacific National Pty Ltd v Aurizon Network Pty Ltd [2016] QSC 218 at [20]-[21].
Mannix further submits that it is necessary to determine whether the factual overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts.[10] The Full Court stated in Garden Estate Hackham Pty Ltd v Angas Securities Ltd that an amendment would arise out of substantially the same facts “if it is an integral part of the controversy delineated by the statement of claim, or at least closely connected to it”.[11]
[10] Brook v The Flinders University of South Australia (1988) 47 SASR 119 at 131.
[11] [2018] SASCFC 140 at [11].
Mannix submits that the intention of r 69.2 is to enable those matters that are fairly raised on an existing pleading to be addressed and resolved through a single piece of litigation without artificial constraints at trial on the legal constructions to be placed on pleaded facts or the fact permitted to be relied on in support of existing core complaints. Further to that, it is not the intention of the Rules to permit a pleaded claim to be expanded by adding a separate and broader controversy where that broader controversy stands or falls separately from the existing claim and it is not necessary to permit fair and just consideration and determination of the matters already pleaded and would otherwise be out of time.
Mannix further contends that the differences between the pleaded causes of action and those now sought to be included are such that they do not arise out of substantially the same facts and will stand or fall separately. The conduct of the parties in 2012, far from being “an integral part of the controversy delineated by the statement of claim”, is an attempt to raise an additional controversy which is at best tangential or collateral to the pleaded claim. In that respect Mannix submits that the application is analogous to that which was refused leave in Garden Estate Hackham.
Mannix also submits that that only matter that overlaps is the background framework to the alleged breaches. By definition a claim that arises as a result of conduct in 2012 cannot arise out of substantially the same facts as a claim or a breach or in particular circumstances that occurred in 2013 or later.
Mannix submits that the Master was led into error by the completely unparticularised nature of the pleaded claim. That had the effect of obscuring the extent of the claims that were sought to be added. What appears to be a change to one sentence will require the pleading of an entirely separate set, or sets, of material facts.
While Mannix has not yet agitated a complaint about the lack of particularity pending the close of discovery, the issue will necessarily be addressed prior to trial so as to give Mannix proper notice of Belport’s case. As it stands, Mannix submits that the pleas of breach are liable to be struck out. Further to that submission, Mannix submits that the vacuity of Belport’s pleas of breach, both existing and proposed, weigh heavily against the application for permission to amend. Belport cannot prove the required jurisdictional fact of “substantially the same facts” if the facts are not adequately distilled.[12]
[12] Westpac Banking Corporation v Hughes (2011) 278 ALR 145 at [17]-[18].
The respondent’s submissions
Belport submits that leave to appeal should be refused. The decision of the Master involved the exercise of a discretion and the principles in House v The King apply.[13] Furthermore, Belport submits that where a discretionary decision under appeal concerns a question of practice and procedure, the appellate court should generally be reluctant to intervene and grant leave to appeal, particularly where the decision does not determine substantive rights nor work a substantial injustice on the appellant.[14] Doyle J (as he then was) in Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd referred to the “truly exceptional” nature of appellate intervention in interlocutory decision making and the importance of keeping a “tight rein” upon such interference.[15] However, counsel for Belport properly acknowledges that the interests of justice remain a relevant consideration and that a rigid criteria should not be applied.[16]
[13] (1936) 55 CLR 499.
[14] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
[15] (2019) 133 SASR 408 at [50].
[16] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
Belport points out that r 69.2 operates in a slightly different way to the former r 55(7) of the Supreme Court Civil Rules 2006 (SA) which provided that the Court could only grant leave for the addition, or substitution, of a cause of action that was statute barred if the new cause of action arose out of substantially the same facts as the original cause of action. Rule 69.2(2) now permits the grant of leave to add a cause of action that is statute barred but the amendment cannot take effect before the date upon which the application for leave to amend was made or foreshadowed unless the new cause of action arises out of substantially the same facts.
Belport refers to the finding by King CJ under an antecedent rule in Karasaridis v Kastoria Fur Products that when deciding whether a proposed amendment pleads a new cause of action in the sense in which that term had been used in Weldon v Neal and subsequent authorities it was necessary to determine whether the amendment “set up a new claim on a different basis” involving separate and distinct events from the facts originally pleaded or went no further than “pleading new particulars of the essential facts constituting the cause of action or a new interpretation of those facts”.[17]
[17] (1984) 37 SASR 345 at 349-350.
Belport submits that the amendments do not add a new cause of action. The cause of action remains the misleading or deceptive conduct or misrepresentation and unconscionable conduct together with breach of contract in relation to the supply price claim. That claim continues to rely on the same representations without any amendment. Similarly, the non-referral claim also relies upon the same representations with only some minor amendments that were not ultimately objected to by Mannix. The only change in relation to both the supply price claim and the non-referral claim is the date from which the contravening conduct is alleged to have occurred. Belport also submits that the contractual cause of action also continues to rely upon the same alleged oral collateral contract. Once again, the only change is to the date from which it is alleged that the collateral contract was breached. That is also the case with the unconscionable conduct cause of action.
Belport also observes that the original statement of claim was always subject to the caveat that the date to be relied upon by Belport in relation to both the supply price claim and the non-referral claim was subject to the disclosure or discovery of documents. That was made clear by the pleading which stated that the relevant date was “from in or about 2013 (or such other date as may be ascertained after disclosure)”. Documents subsequently disclosed by Mannix provided evidence that relevant conduct had occurred prior to 2013 involving non-referral of enquiries that were relevant to the non-referral claim and the sale of products by Mannix to Belport at prices that substantially exceeded the price that had been paid by Mannix plus 10%.
For these reasons, Belport submits that the amendments do not add a new cause of action but simply constitute the re-particularising of facts already pleaded in relation to an existing cause of action. In the words of King CJ in Karasaridis, the amendments do no “set up a new claim on a different basis”.
Belport further submits that the position is not altered by the application of the definition of “cause of action” in r 2.1(1) which refers to “a set of facts by reason of which … a person is entitled to relief in a claim”. That is said to be the case because the “set of facts” relating to both the supply price claim and the non‑referral claim remain the same other than that the relevant conduct is alleged to have occurred from about six months earlier than previously alleged.
Belport also submits that even if Mannix is correct that each individual supply of product in relation to the supply price claim technically involves a separate cause of action, that does not mean that the amendments must be regarded as adding new causes of action in the sense that that expression is used in Weldon v Neal and for the purposes of r 69.2(2). The basis for that contention is that amendments should properly be characterised as the re-particularising of facts already pleaded in relation to an existing cause of action or that are sufficiently closely related to what had previously been alleged. Belport refers to the observation by von Doussa J in Brook v The Flinders University of South Australia that whether a new cause of action arises out of substantially the same facts as an original cause of action depends upon whether the overlap between the new and original causes of action “can fairly be said to arise out of substantially the same facts”.[18] That may be accepted even if some of the facts relating to the new or the original causes of action are peculiar to those causes of action.[19]
[18] (1988) 47 SASR 119 at 131 quoting Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 880 (Cross LJ).
[19] Ibid at 134.
Belport submits that the only effect of the change effected by the amendments is to extend the time period in which the alleged conduct of Mannix is to be considered. The character of the alleged conduct and the underlying dealings and events remain as originally pleaded. There is no broader or additional controversy.
Belport also submits that there is no basis for the contention by Mannix that the Master was led into error by the lack of particularity in the pleaded claim. While it is intended that further particulars will be provided in support of certain allegations in the statement of claim once discovery is completed, Belport contends that the pleading provides sufficient particularity to satisfy the “substantially the same facts” requirement, particularly given that the only relevant change is to the date. In support of that contention Belport notes that Mannix has not made any application relating to the alleged deficiencies in the statement of claim nor has it contended that is has been unable to properly plead its defence due to the alleged lack of particularity.
The authorities
Counsel for Belport and for Mannix referred to a number of authorities that largely serve as examples of the approach taken by this Court and Supreme Courts in other jurisdictions to the operation of rules that ameliorate the principle in Weldon v Neal. It is helpful to refer to some of those cases.
Karasaridis v Kastoria Fur Products
In Karasaridis v Kastoria Fur Products[20] the plaintiff claimed damages for personal injury that allegedly was sustained in the course of her employment. While working on 3 November 1980 she had injured her back while lifting a box. She alleged that the injury had resulted from the negligence and/or breach of statutory duty by the employer. After the time limit for commencing such an action had expired, the plaintiff applied to amend her statement of claim to add an allegation that from about May 1979 until 3 November 1980 during the course of employment she had injured her back, being a cumulative strain and also degenerative changes to her lumbar spine. These injuries were also said to be caused by the negligence and/or breach of statutory duty on the part of the employer.
[20] (1984) 37 SASR 345.
Order 28 Rule 1(5) of the Supreme Court Rules 1947 provided that:
An amendment may be allowed under subrule (2) hereof notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
King CJ held that Order 28 Rule 1(5), “appears to be designed to permit an amendment raising a new cause of action in the sense of a new legal categorization of the facts in respect of which relief has already been claimed”.[21] Any other amendment needed to be considered in accordance with the principle in Weldon v Neal.[22]
[21] Ibid at 351.
[22] Ibid at 352.
King CJ held that in order to determine whether the proposed amendment seeks to plead a new cause of action in the sense in which that expression is used in Weldon v Neal, that:[23]
[I]t is necessary to compare the proposed amendment with the statement of claim in order to determine whether the amendment goes further than pleading new particulars of the essential facts constituting the cause of action or a new interpretation of those facts, and rather sets up a new claim on a different basis.
[23] Ibid at 349.
King CJ observed that the proposed amendment relied upon the same relationship of employer and employee as giving rise to the duty of care and the particulars of negligence were the same. However, the statement of claim referred to a specific spinal injury sustained when the plaintiff bent over to pick up a particular box. The case pleaded in the amendment was that the plaintiff had sustained a cumulative strain to her lower back and degenerative changes to the lumbar spine which had left her with a weakened and unstable lumbar spine with a predisposition to further injury. Those two claims were quite distinct and independent of one another and the plaintiff might succeed with one and not the other.
King CJ concluded that:[24]
…. an amendment which sets up a new claim based upon a different injury from that originally pleaded and which is said to have been caused by events which are separate and distinct from the factual situation originally pleaded, must be regarded as a different cause of action.
[24] Ibid at 349-350.
King CJ held that the amendment sought to raise a new cause of action, not by changing seek to change the legal categorisation of the facts already pleaded, but by adding a new claim for a different injury allegedly caused by different facts. There was a new cause of action because the new claim was not based upon the same or substantially the same facts.[25] His Honour (in dissent) would have refused leave to make the proposed amendment.
[25] Ibid at 351.
Zelling J considered it to be arguable that the application did not relate to a new cause of action but proceeded on the assumption that it was sought to introduce a new cause of action. Zelling J decided the matter on the basis that the defendant could not show that the amendment would cause it any prejudice.[26] His Honour observed that the defendant’s medical advisors must have considered from the outset whether the spinal injury was caused by one injury or by injuries over a period of time. They would have also had access to the plaintiff’s medical records. While his Honour did not specifically advert to the issue, it seems clear that he decided the matter on the basis that the facts were substantially the same.
[26] Ibid at 358.
Jacobs J observed that the plaintiff had alleged negligence and breaches of statutory duty by her employer from the outset. The proposed amendments did not change or add to the allegations of negligence and breach of statutory duty or the particulars relating to those allegations. The allegation that there had been longstanding negligence and a breach of statutory duty that had predisposed the plaintiff to injury did not plead a new or different cause of action. Instead, the amendment made a more explicit statement of the consequences of the alleged negligence and breach of duty.
Swietlik v Central Linen Service

In Swietlik v Central Linen Service the plaintiff had issued proceedings in April 1988 alleging that he had suffered a back injury at work while lifting a heavy bag in April 1987.[27] After the time limit had expired, in May 1991 the plaintiff sought to amend his statement of claim to allege that in September 1987 he had suffered a further back injury by way of aggravation of the original injury. A Master granted permission to amend the statement of claim, apparently on the basis that the new allegation arose out of the same or substantially the same facts.
[27] (1991) 56 SASR 569.
Cox J observed that:[28]
The term "cause of action" can have different shades of meaning in different contexts. It seems to me that there is a good deal to be said for a liberal and non-technical interpretation of the expression "new cause of action" as it appears in r 53.03(c). Certainly I would not confine it to a claim that does no more than interpret the original allegations of fact in a different legal way or that merely fastens upon different factual or legal consequences. The plaintiff's proposed amendment attempts to set up a new claim on a different factual basis from the first. I am inclined, therefore, to the master's view that this would be a new cause of action. However, I do not need to pronounce finally on that, because I think the defendant must succeed on its second argument; that the proposed amendment would plead a cause of action that did not arise out of the same or substantially the same facts as the alleged breach of duty about April 1987.
The test for this part of par (c) is tolerably well settled. In the words of Cross LJ in Brickfield Properties Ltd v Newton; Rosebell Holdings Ltd v Newton [1971] 1 WLR 862 at 880; [1971] 3 All ER 328 at 342:
"It is no objection to an amendment under 0 20, r 5(5) that some of the facts out of which the new cause of action arises are peculiar to it, and that some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action."
[28] Ibid at 571.
Cox J then went on to discuss a number of examples of the application of the principles referred to by Cross LJ in Brickfield and by the Full Court in Karasaridis. Cox J gave the example of a professional negligence case against a solicitor. A plaintiff may initially have alleged that the solicitor was liable in negligence. Subsequently, they seek to add a claim in contract. Cox J indicated that, at least on one view of what constitutes a new cause of action, the second claim would arise out of the same or substantially the same facts.
Another example provided by Cox J was a supermarket being sued for negligence by failing to keep the floor clean which led the plaintiff to slip. Cox J indicated that it would be very doubtful that, without more, the plaintiff would be granted leave to amend by adding another alleged incident in the same supermarket 12 months earlier when they had slipped on a different article in a different part of the shop even though the occupier’s duty of care would be the same.
Cox J held that facts alleged by the plaintiff in Swietlik involved a different happening on a different occasion and involved a fundamentally different set of facts, even though the employer and employee were the same and there was a degree of similarity between the two incidents.[29] Thus, the Master should have found that the two incidents did not arise out of the same or substantially the same facts.
[29] Ibid at 573.
Vaccarella v McNicol
In Vaccarella v McNicol von Doussa J held that although a proposed amendment to a statement of claim alleging negligence against a surgeon almost entirely recast the pleadings, it did no more than give proper particulars of the negligent treatment that had been originally pleaded.[30] The provision of additional particulars did not raise a new cause of action. Von Doussa J also held that if he was wrong in that respect, the new allegation arose out of the same facts or substantially the same facts as the original claim.
[30] [1986] SASC 9375.
The significance of Vaccarella does not lie in these findings but rather in the discussion by von Doussa J of the meaning of the term “cause of action”. His Honour noted that cases decided on the application of the Weldon v Neal principle might provide assistance with the meaning of “new cause of action” in what was then Order 28 Rule 1(5) but could not dictate the meaning of the term. Many cases decided on the application of the Weldon v Neal principle did not establish any simple or universal definition of what was meant by a “cause of action”. Von Doussa J referred to the article by Susan Campbell entitled Amendments and Limitations: The Rule in Weldon v Neal.[31] I refer to that issue at [77] below.
[31] (1980) 54 ALJ 643.
Von Doussa J noted that in Karasaridis King CJ had discussed separately the question of whether there was a new cause of action in the sense used in Weldon v Neal and the meaning of that term under the rules. In the former instance, the facts form part of the concept of the “cause of action” and the similarity of the facts alleged in the original and amended pleadings may determine whether there is a new cause of action. However, under the rules, the concept of a cause of action is addressed separately from the question of whether the new cause of action arises out of the same or substantially the same facts.
Thus, von Doussa J indicated that in the rules the term “new cause of action” is used in the strict sense of alleging a new head of legal liability, although there is a practical problem in identifying a new head of legal liability in isolation from the facts. His Honour indicated that in deciding whether an amendment introduces a new cause of action it is necessary to consider whether it seeks to provide only new particulars of a cause of action that has already been pleaded or is setting up a new claim on a different legal basis. The distinction may often be a matter of degree and opinion.
Morgan v Banning
In Morgan v Banning Wheeler J (with Ipp and Owen JJ agreeing) of the Full Court of the Supreme Court of Western Australia examined the application of the rule in Weldon v Neal.[32] Her Honour referred to the ambiguity of the expression “cause of action” and suggested that confusion had arisen because it was not clear in Weldon v Neal whether the Court was referring to a cause of action or a “form of action” in the sense used prior to the Judicature Act 1873 (Eng). Wheeler J used the term “cause of action” to refer to the factual situation which would entitle a person to seek relief from the Court. Her Honour referred with approval to the distinction drawn in the article by Susan Campbell between cases where significant new allegations of fact are raised (e.g. where a plaintiff suing for personal injury seeks to amend radically the story of how the accident occurred) and cases where there was a change in the legal categorisation without any alteration of substance to the facts.
[32] (1999) 20 WAR 474.
Meredith v Commonwealth
The plaintiff in Meredith v Commonwealth alleged in his statement of claim that he had been given negligent advice between 1966 and 1977 concerning his eligibility to join the Commonwealth Superannuation Scheme.[33] The High Court had held in a similar case that the cause of action for negligent advice in these circumstances only accrued on the retirement of the employee when actual damage was sustained.[34] After the limitation period had expired, the plaintiff sought to amend his statement of claim to include a new allegation that he had received negligent advice in the same terms from a different Commonwealth employee. The two instances were apparently separated by some eight years.
[33] [2009] ACTSC 168.
[34] Commonwealth v Cornwell (2007) 229 CLR 519.
After reviewing a number of authorities, Refshauge J proposed the following test to assist in determining whether an amendment sought to add a new cause of action:[35]
… one approach to the question of whether there is a new cause of action is to ask the following question. If a plaintiff fails to prove to the court’s satisfaction the material facts, not including prefatory averments or matters of inducement, in respect of the pleaded cause of action to the requisite satisfaction of the trial court or at least substantially as to all them, yet does prove the material facts proposed to be included in the amendment, would the plaintiff still be entitled to relief from the court? If the answer is “no”, then that is a strong indication that what is pleaded is not in the relevant sense a new cause of action. Conversely if the answer is yes, it seems likely that it is a new cause of action.
[35] [2009] ACTSC 168 at [23].
Refshauge J found that the proposed amendment did seek to add a new cause of action. The separate occasion on which negligent advice was allegedly given by a different person was not merely a particular of the cause of action already pleaded.
Refshauge J also found that all the facts pleaded in the proposed amendments were new and none overlapped with the subsisting pleading. The representation was different and the person making the representation also differed, although the words used may have been the same or similar. The relationship would also have been different. His Honour found that the amendment did not arise out of the same or substantially the same facts.
Consideration
The amendment to the pleaded date from “about 2013” to “July 2012” does not in any way affect the underlying factual basis of the contractual relationship between the parties. The parties remain the same and the change in dates does not affect the agreements and representations that governed their commercial relationship. However, the effect of pleading the earlier date is to bring additional transactions within the scope of the litigation. The Master took the view that this simply amounted to the supply of further particulars. However, for the reasons that follow, I consider that whether a new cause of action is being alleged must be determined by reference to the additional transactions that will be brought within the scope of the litigation.
The essence of the case alleged by Belport is that it had a standing arrangement with Mannix so that upon placing an order it would be supplied with goods for resale by it in accordance with the terms agreed in the second licence agreement and the series of oral representations made by Mannix. Belport alleges that it has been supplied goods by Belport other than in accordance with the agreed terms and representations. The amendment to the pleaded date from “about 2013” to “July 2012” will bring additional occasions within the scope of the litigation when goods were allegedly supplied contrary to the agreed terms and representations.
The substance of the Product Pricing Representation is that Mannix had agreed to supply products to Belport at the price it had paid plus 10%. However, it is of central importance that Mannix supplied a range of different products to Belport albeit that they were all air conditioning units and related products. What items were supplied on any given occasion was dependent upon the order placed by Belport. It also appears that the price payable by Mannix to its suppliers for any particular item would have varied from time to time as would have the price charged by Mannix to Belport.
Thus, whether or not any particular supply transaction involved a breach of the Product Pricing Representation will depend upon the price paid by Mannix for the particular item and also the price it charged Belport on that occasion. Accordingly, even if the allegations made by Belport are generally valid, it is possible that some transactions in the period covered by the change in the pleaded date may have given rise to a breach of the Product Pricing Representation and others may not. The answer to that question will depend upon a comparison in the case of each individual transaction of the price paid by Mannix and the price charged to Belport.
Each relevant transaction will have involved the placing of a separate order by Belport with Mannix for a particular item. The important point which emerges from that arrangement is that each order will have given rise to a discrete contract whereby Mannix agreed to purchase the particular item from Belport. While most of the terms of the individual contract will have been determined by the ongoing terms agreed between the parties and representations allegedly made by Mannix, the item to be supplied will be in accordance with the particular order. The price actually charged, and what Mannix was entitled to charge, will also vary from order to order. Those two variables will determine whether any particular contractual transaction was in breach of the terms and representations applying between the parties.
I consider that the reasoning applied by Cox J in Swietlik and by Refshauge J in Meredith in so far as the question of there being a new cause of action is equally applicable to the proposed change of date relating to the Product Pricing Representation. While the same parties are involved and they have allegedly contracted in accordance with a standing arrangement covering the same general class of products, the new allegations introduced by way of the amendment made by Belport concern individual contractual transactions where the actual item purchased will vary from occasion to occasion, as will the price paid by Mannix to its suppliers and the price charged by Mannix to Belport.
That conclusion may be tested against the approach suggested by Refshauge J in Meredith. If Belport fails to prove the material facts alleged in the statement of claim, leaving aside the allegations about the licence agreement and the representations, but proved the allegations in the amendment, would it be entitled to relief? As the answer to that question would be “yes”, that is a strong indication that the amendment does involve a new cause of action.
My conclusion that the amendment does give rise to a new cause of action is equally applicable to the Best Possible Pricing Representation and to the Competitive Pricing Representation. Each order placed by Belport with Mannix during the relevant period will have involved a separate contract. Whether any individual contract was in breach of the standing arrangement will depend upon the price paid by Mannix for a particular item and also the price it then charged Belport.
The position is more complex with the Referral Representation. The monthly fee of $4,333 plus GST paid by Belport in respect of each store as its pro rata share of advertising expenses also allegedly covered customer referrals. Belport alleges at paragraph [79.16] of the amended statement of claim that Mannix “knew from around July 2012 the plaintiff was not all being allocated enquires (sic) from the postcodes for which the Kidman Park business or the Marion business (as the case may be) was the closest Mannix retail premises in geographical terms”.
The alleged breach is limited to customer inquiries received by Mannix through its website or 1300 telephone number. While the word “all” has clearly been misplaced in paragraph [79.16], allowing for that error, the allegation that not all relevant enquiries were referred to Belport.
The pleading that not all relevant enquiries were referred to Belport results in some uncertainty as to how it will go about proving a breach of the Referral Representation. For practical reasons, I doubt that Belport will try to identify every contact made by a potential customer with Mannix through its website and 1300 number from relevant suburbs and then seek to prove that some or many of these inquiries were not referred on to Belport. If that is the basis of the Belport case, then my conclusion that the change of date relating to the three different Pricing Representations gives rise to multiple new causes of action may also apply in this instance.
However, I suspect that is more likely that Belport will simply seek to establish that Mannix either had no process, or an inadequate process, to ensure that the Referral Representation was properly carried into effect and thereby caused loss or damage to Belport. In that event, I do not consider that the change in date relating to the Referral Representation would give rise to a new cause of action but would instead simply be a change in particulars. Given my conclusion that the additional allegations covered by the amendment arise out of substantially the same facts, it is unnecessary to consider further whether that the amendment relating to the Referral Representation will give rise to a new cause of action.
I am satisfied that the additional allegations brought within the statement of claim by the amendment of the relevant date from “about 2013” to “July 2012” arise out of substantially the same facts as the preceding statement of claim. The parties to the contracts are the same, as are the alleged terms and conditions and the representations relied upon by Belport. The subject matter of the contracts, while not identical in every instance, comprised the same subject matter, i.e. the supply of air conditioning units and related products for resale. The nature of the alleged breaches, albeit not their specifics, is also not changed. Thus, for example in the case of the Product Pricing Representation it is alleged that Mannix did not adhere to the representation that it would not charge Belport a price greater than 10% more than the price it had paid for an item. That allegation is not in any way affected by the change in dates made by the amendment. This is equally the case with the Best Possible Pricing Representation and the Competitive Pricing Representation.
Conclusion
The application for leave to appeal clearly gave rise to a serious question and the case was arguable. On that basis, I granted leave to appeal. However, for the reasons stated above, I dismissed the appeal and awarded costs on a standard basis in favour of Belport.