Paul v Westpac Banking Corporation - [2016] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

Paul v Westpac Banking Corporation [2016] QCA 252

PARTIES:

JEFFREY DAVID PAUL
(appellant)
v
WESTPAC BANKING CORPORATION
ACN 007 457 141
(respondent)

FILE NO/S:

Appeal No 9369 of 2015
SC No 1603 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 25 August 2015

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2016

JUDGES:

Fraser and Gotterson JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal.

2.   Set aside the order dismissing the application.

3. Order instead that the appellant have leave pursuant to r 376(4) of UCPR to amend his claim and statement of claim in the form exhibited to the affidavit of Darrell Adam Heperi Kake filed on 4 August 2015.

4.   Order the respondent to pay the appellant’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – OTHER MATTERS – where the appellant was refused leave to amend his claim and statement of claim to include a new cause of action for which the period of limitation had ended – where it was found that the new cause of action did not arise out of the same or substantially the same facts as the causes of action for which relief had already been claimed – where the respondent’s additional argument that other matters made it inappropriate for the court to grant leave was rejected – where the appellant contends that the primary judge erred in finding that the new cause of action did not arise out of substantially the same facts as the existing causes of action – where the respondent contends that the primary judge was correct in so finding – where the respondent further contends that it was not an appropriate case for leave to be granted – whether the new cause of action arises out of substantially the same facts as the original causes of action – whether it is appropriate under the circumstances to allow the amendment – whether leave granted to the appellant to amend his claim and statement of claim

Australian Securities and Investments Commission Act 2001 (Cth), s 12CC, s 12GD, s 12GF
Trade Practices Act 1974 (Cth), s 51A, s 51AC, s 82, s 87
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376, r 376(4)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
National Australia Bank Limited v Smith [2014] NSWSC 1605, cited
Zonebar Pty Ltd v Global Management Corporation Pty Ltd[2009] QCA 121, distinguished

COUNSEL:

K A Barlow, with D J Thomae, for the appellant
G D Sheahan for the respondent

SOLICITORS:

Quinn and Scattini Lawyers for the appellant
McKays Solicitors for the respondent

FRASER JA: Rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) provides:

“The court may…

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: [2016] QCA 252
Decision Date: 7 October 2016

CaseChat Overview and Summary

Paul, the appellant, appealed against a decision made by the Supreme Court of Queensland that refused him leave to amend his claim and statement of claim to include a new cause of action against Westpac Banking Corporation, the respondent. The new cause of action had been brought forward by Paul after the limitation period had expired. The primary judge found that the new cause of action did not arise out of the same or substantially the same facts as the original causes of action. Westpac contended that even if the new cause of action did arise out of the same or substantially the same facts, it was not appropriate for the court to grant leave in these circumstances.

The court had to decide whether the new cause of action arose out of substantially the same facts as the original causes of action and whether it was appropriate under the circumstances to allow the amendment. The court considered that the new cause of action did arise out of substantially the same facts as the original causes of action. The court found that the primary judge had erred in finding that the new cause of action did not arise out of the same or substantially the same facts as the original causes of action. The court found that it was appropriate for the amendment to be allowed in these circumstances.

The court allowed the appeal and set aside the order dismissing the application. The court ordered that the appellant have leave pursuant to r 376(4) of UCPR to amend his claim and statement of claim in the form exhibited to the affidavit of Darrell Adam Heperi Kake filed on 4 August 2015. The court also ordered that the respondent pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the order dismissing the application.

3. Order instead that the appellant have leave pursuant to r 376(4) of UCPR to amend his claim and statement of claim in the form exhibited to the affidavit of Darrell Adam Heperi Kake filed on 4 August 2015.

4. Order the respondent to pay the appellant’s costs of 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:	Paul v Westpac Banking Corporation [2016] QCA 252
PARTIES:	JEFFREY DAVID PAUL (appellant) v WESTPAC BANKING CORPORATION ACN 007 457 141 (respondent)
FILE NO/S:	Appeal No 9369 of 2015 SC No 1603 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 25 August 2015
DELIVERED ON:	7 October 2016
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2016
JUDGES:	Fraser and Gotterson JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the order dismissing the application. 3. Order instead that the appellant have leave pursuant to r 376(4) of UCPR to amend his claim and statement of claim in the form exhibited to the affidavit of Darrell Adam Heperi Kake filed on 4 August 2015. 4. Order the respondent to pay the appellant’s costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – OTHER MATTERS – where the appellant was refused leave to amend his claim and statement of claim to include a new cause of action for which the period of limitation had ended – where it was found that the new cause of action did not arise out of the same or substantially the same facts as the causes of action for which relief had already been claimed – where the respondent’s additional argument that other matters made it inappropriate for the court to grant leave was rejected – where the appellant contends that the primary judge erred in finding that the new cause of action did not arise out of substantially the same facts as the existing causes of action – where the respondent contends that the primary judge was correct in so finding – where the respondent further contends that it was not an appropriate case for leave to be granted – whether the new cause of action arises out of substantially the same facts as the original causes of action – whether it is appropriate under the circumstances to allow the amendment – whether leave granted to the appellant to amend his claim and statement of claim Australian Securities and Investments Commission Act 2001 (Cth), s 12CC, s 12GD, s 12GF Trade Practices Act 1974 (Cth), s 51A, s 51AC, s 82, s 87 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376, r 376(4) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited National Australia Bank Limited v Smith [2014] NSWSC 1605, cited Zonebar Pty Ltd v Global Management Corporation Pty Ltd[2009] QCA 121, distinguished
COUNSEL:	K A Barlow, with D J Thomae, for the appellant G D Sheahan for the respondent
SOLICITORS:	Quinn and Scattini Lawyers for the appellant McKays Solicitors for the respondent