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 2013DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – Unreported, 25 August 2015DELIVERED 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 madeORDERS:
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, distinguishedCOUNSEL:
K A Barlow, with D J Thomae, for the appellant
G D Sheahan for the respondentSOLICITORS:
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…
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- Case
- [2016] QCA 252
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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