Plenty & Plenty v Seventh Day Adventist Church No. Scciv-82-1632

[2003] SASC 365

PLENTY & PLENTY
v
SEVENTH DAY ADVENTIST CHURCH
[2003] SASC 365

Magistrates Appeal

1. DUGGAN J.         The appellants are plaintiffs in a matter which was listed for trial before me.  The proceedings were commenced after the appellants were disfellowshipped from the respondent church on 1 December 1979.  They sought judicial review of the decision and a declaration that they were denied natural justice in the proceedings which led to the disfellowshipping.  They claim that the disfellowshipping was null and void.  They also claim damages pursuant to SCR 98.09 which provides:

   “98.09      (1)     On a summons for judicial review the Court may, subject to paragraph (2), award damages, to the plaintiff if:

   (a)he has included in his summons a claim for damages arising from any matter to which the application relates;

   (b)the Court is satisfied that if the claim had been made in a proceeding begun by the applicant at the time of issuing his summons, he could have been awarded damages.

   (2)Rule 46 shall apply to an affidavit under Rule 98.04 claiming damages as it applies to a pleading.”

2. At the request of the parties I directed that the issue of damages be deferred until I had determined the application for judicial review.  Evidence was called on the latter issue and I made a declaration that the purported disfellowshipping of the appellants from the respondent church was void and of no effect.

3. The matter was then adjourned and it was anticipated that the trial on the issue of damages would take place when I returned from a period of long service leave.

4. While I was away on leave the appellants applied to a Master to amend the statement of claim.  The Master allowed some amendments but refused to allow an amendment to include a claim for damages for breach of duty by the respondent in relation to the conduct of the disciplinary hearing and its alleged consequences.  The appellants now appeal against the refusal to allow this amendment.

5. In the ordinary course of events, the appellants would have been faced with the difficulty that the claim for breach of duty was statute barred.  However, the appellants relied on SCR 53.03 which states:

   “Amendment where limitation period has expired

   53.03Where an application for leave to amend is made after any relevant period of limitation has expired, the court may, nevertheless, grant leave, on such terms as it thinks fit:

   (a)     not applicable;

   (b)     not applicable;

   (c)to add or substitute a new cause of action, if the new cause of action arises out of the same, or substantially the same, facts as the original cause of action.”

6. It is not in dispute that the claim of breach of duty of care arises out of the same, or substantially the same, facts as the original cause of action.  Nevertheless, the question remains as to whether it is appropriate to permit the amendment in the exercise of the court’s discretion.

7. The attempt to plead this new cause of action comes after years of delay in the drawn out proceedings which took place before this matter was listed for trial.  Furthermore, it was anticipated that all circumstances relating to liability would be dealt with in the first stage of the hearing which has now been completed.

8. If there had been a possibility of significant prejudice to the respondent in the conduct of its case I would have had no hesitation in dismissing the appeal against the refusal to allow the amendment.  However, Mr Stratford, for the respondent, has informed the court that Mr Kourakis QC, who led for the respondent at the first stage of the trial, is of the view that he would not have conducted the case any differently if this cause of action had been before the court at the time of that hearing.  Although Mr Stratford himself considers that the case might have been conducted differently in some respects, it does not appear on the material presently before me that the respondent would be prejudiced in this respect if the amendment were allowed.

9. The learned Master was placed in the difficult situation of dealing with this matter when it was part-heard before me.  Although he refused the amendment, he commented on the fact that it was open to me, as the trial judge, to reconsider the matter as the trial proceeded.  Although not without some hesitation, I have decided that, in the absence of any clear indication of prejudice to the respondent and in the interests of resolving all of the appellants’ claims against the respondent in the present litigation, I should allow the appeal and grant the application to amend the statement of claim in the manner sought.

10. It is of course open to the respondent to make any application it deems necessary to meet the new cause of action.

11. The appeal will be allowed and the order of the master in so far as it relates to the proposed addition of paragraph 11A to the statement of claim will be set aside.  In lieu thereof, there will be an order that the application to amend the statement of claim by the addition of paragraph 11A in the terms set out in exhibit “JAC2” to the affidavit of Jeffrey Andrew Carr sworn on 6th June 2003 will be allowed.