Meredith v Commonwealth of Australia - [2009] ACTSC 168

WAYNE GARRY MEREDITH v COMMONWEALTH OF AUSTRALIA
[2009] ACTSC 168 (19 November 2009)

PRACTICE AND PROCEDURE – application to amend statement of claim where action out of time – Court Procedures Rules 2006 (ACT), rr 502, 503 – whether amendment a new cause of action – suggested test – alleged negligent statement by additional representor held to be a new cause of action – whether action arises from the “same or substantially the same facts” – employment relationship with additional representor sufficiently different to distinguish facts – relevance of specific prejudice arising from the unavailability of the representor and general prejudice to the respondent.

Limitation Act 1985 (ACT), s 11
Trade Practices Act 1974 (Cth), s 52, 53

Court Procedures Rules 2006 (ACT), rr 6, 502, 503, 509, 511, 514

Commonwealth of Australia v Cornwell (2007) 229 CLR 519
Weldon v Neal (1887) 19 QBD 394
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Renowden v McMullin (1970) 123 CLR 584
Morgan v Banning (1999) 20 WAR 474
Draney v Barry [2002] 1 Qd R 145
Hristeas v GMH Pty Limited [1968] VR 14
Black v The City of South Melbourne (1964) 38 ALJR 309
Collins v Hertfordshire County Council [1947] KB 598
Golski v Kirk (1987) 14 FCR 143

Howarth v Adey [1996] 2 VR 535

Canberra Cruises and Tours Pty Limited & Ors v Commonwealth of Australia and Anor [2003] ACTSC 90

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Lexmead (Basingstoke) Ltd v Lewis & Ors [1982] AC 225

Nectaria Nominees Pty Limited v Commonwealth of Australia (1992) 111 FLR 459
Stone James v Pioneer Concrete WA Pty Limited [1985] WAR 233
Chatsworth Investments Limited v Cussins (Contractors) Limited [1969] 1 WLR 1
Adam v Shiavon [1985] 1 Qd R 1
Brunsden v Humphrey (1884) 14 QBD 141
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

EX TEMPORE JUDGMENT

No. SC 528 of 2007

Judge: Refshauge J
Supreme Court of the ACT

Date: 19 November 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 528 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:WAYNE GARRY MEREDITH
Plaintiff

AND:COMMONWEALTH OF AUSTRALIA
Defendant

ORDER

Judge:  Refshauge J
Date:  19 November 2009
Place:  Canberra

THE COURT ORDERS THAT:

The plaintiff has leave to amend paragraph 7 of the Statement of Claim as proposed in the draft Amended Statement of Claim annexed to the Application in Proceedings dated 11 November 2009.

The plaintiff has leave to amend the Reply as proposed in the draft Amended Reply annexed to the Application in Proceedings dated 11 November 2009.

Leave is refused for the amendment to paragraph 3(d) and to insert paragraph 7A of the Statement of Claim.

The plaintiff pay the defendant’s costs of the application and amendment, such costs not to be payable until judgment in the proceedings.

On 9 January 1966, Mr Wayne Garry Meredith commenced full-time work as a temporary employee of the Commonwealth of Australia working in ACT…

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.

Keep reading for free

Create a free CaseChat account to read Meredith v Commonwealth of Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] ACTSC 168
Decision Date: 19 November 2009

CaseChat Overview and Summary

In the case of Meredith v Commonwealth of Australia, the plaintiff sought to amend the statement of claim to include a new cause of action against the defendant, the Commonwealth of Australia. The amendment was made after the original action was out of time, necessitating an application under the Court Procedures Rules 2006 (ACT). The plaintiff argued that the additional cause of action arose from the "same or substantially the same facts" as the original claim. The defendant opposed the amendment, contending that it constituted a new cause of action, and therefore was not permissible under the rules.

The legal issues before the court were whether the proposed amendment constituted a new cause of action and whether the amendment arose from the "same or substantially the same facts" as the original claim. The court considered the test for determining whether an amendment was a new cause of action and whether the facts of the case were substantially the same. The court also examined the employment relationship between the plaintiff and the additional representor, and the specific and general prejudice that might arise from the unavailability of the representor.

The court held that the amendment constituted a new cause of action, as the employment relationship with the additional representor was sufficiently different from the original relationship to distinguish the facts. The court also found that the amendment did not arise from the "same or substantially the same facts" as the original claim. The court noted that the specific prejudice arising from the unavailability of the representor was relevant to the determination, as was the general prejudice to the respondent. However, the court found that the employment relationship with the additional representor was sufficiently different to distinguish the facts.

The court refused the plaintiff's application to amend the statement of claim, as the proposed amendment constituted a new cause of action. The court found that the employment relationship with the additional representor was sufficiently different from the original relationship to distinguish the facts, and that the amendment did not arise from the "same or substantially the same facts" as the original claim. The court also noted that the specific and general prejudice to the respondent were relevant considerations in the determination. However, the court found that these factors were not sufficient to overcome the differences in the facts of the case.

Orders

Orders of the court

The plaintiff has leave to amend paragraph 7 of the Statement of Claim as proposed in the draft Amended Statement of Claim annexed to the Application in Proceedings dated 11 November 2009.

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.