Price v Bennett

[1992] QCA 391

IN THE COURT OF APPEAL	[1992] QCA 391
SUPREME COURT OF QUEENSLAND

Appeal No. 196 of

1992

Writ No. 940 of 1991

BETWEEN:

CHRISTINE SHARON PRICE

(Plaintiff) Respondent

AND:

JOAN BENNETT
trading under the firm name or style of

BENNETT AND ASSOCIATES

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the Second day of November 1992

This is an appeal from a judge in chambers against an order refusing leave to amend a defence. The action in which the unsuccessful application was made was one based on an allegation that a solicitor had, in breach of her duty, failed to issue a writ within three years from the date of an injury suffered by the respondent plaintiff. That injury is said to have occurred on 10 November 1986 while the respondent was employed at an institution at Holland Park, Brisbane, called the Archbishop Duhig Nursing Home.

The writ in the action was issued on 30 May 1991 and was followed by a statement of claim which set up the occurrence of the injury on 10 November 1986 and alleged that it was caused by breach of duty "on behalf of the ARCHBISHOP DUHIG NURSING HOME, its servants or agents". The statement of claim alleged that the respondent retained the appellant to act as her solicitor in making a claim for personal injuries against the nursing home. By paragraph 11, the respondent alleged a breach of the appellant's duty of care in failing to issue a writ against the nursing home within three years from the date of the injury, causing the claim against the nursing home to become statute-barred pursuant to the Limitation of Actions Act 1974. Paragraph 12 of the statement of claim is as follows:

"By reason of the matters aforesaid, the Plaintiff has lost all prospects of recovering damages from the ARCHBISHOP DUHIG NURSING HOME in respect of the said accident and she is therefore deprived of the said damages and has therefore suffered loss and damage".

The defence, delivered on 25 August 1991, denied the allegations in paragraph 11 and did not admit those in paragraph 12 of the statement of claim.

On 26 November 1991, solicitors for the appellant wrote to the respondent's solicitors as follows:

"We refer to your request for advice on the admission of liability so far as it relates to the negligence of the defendant solicitor. We are instructed that they admit negligence in failing to institute proceedings on your client's part in respect of any injuries which she may have suffered in an incident on the 10th of November 1986".

In January/February 1992, the appellant's solicitors made searches which, if accurate, disclosed that the business of the nursing home was at relevant times carried on by a company, Southern Cross Homes Incorporated, which company was incorporated and had a registered office in Victoria.

The appellant changed solicitors, because of a potential conflict, in April 1992 and on 3 July 1992, the new solicitors informed the respondent's solicitors that it was intended to amend the defence. The proposed amended defence need not be set out in full. It is enough to say that it would, if allowed, allege that the respondent was employed by Southern Cross Homes Incorporated, that the respondent has a cause of action against that company and set up, by paragraph 10:

"If the Plaintiff has incurred any loss or damage in consequence of the negligence of the Defendant, which is denied, the Defendant says that the Plaintiff has failed to mitigate such loss and damage by commencing and prosecuting her alleged cause of action against Southern Cross Homes Incorporated".

The amendment being resisted, an application was, as we have mentioned, made to the Court and that failed. The point of the proposed amendment is that the relevant time limitation in Victoria is six years, so that an action against the employer in that State in not yet statute- barred: Limitation of Actions Act 1958 (Vic.) s.5(1A).

In summary, the reasons for refusal of the amendment
were as follows. The judge pointed out that the action was
ready for trial; that considerations of convenience "favour
the proceedings being litigated in a Queensland court";
that the plaintiff was suffering considerable distress on
account of the delay in the resolution of her case; that
there was no indemnity offered in respect of bringing
Victorian proceedings, nor any undertaking not to plead the
Statute of Limitations; that the Victorian court might, if
proceedings were instituted there, cross-vest them back to
Queensland, which would raise the possibility of the
Queensland limitation period becoming relevant; that the
respondent's case for negligence against the nursing home
operator seemed to be a difficult one; and that the duty to
mitigate loss did not require the respondent to embark on
complicated and difficult litigation in Victoria.

The first question and, on the argument of counsel for the respondent, apparently the central one, is the effect of the admission of liability made on behalf of the appellant and quoted above. Counsel for the respondent contended that the admission of negligence involved not only an abandonment of the resistance to the assertion in paragraph 11 of the statement of claim, to the effect that the appellant failed to issue a writ within three years, but also an admission of the allegation in paragraph 12 that the respondent had thereby "lost all prospects of recovering damages from the ARCHBISHOP DUHIG NURSING HOME in respect of the said accident".

Counsel for the respondent contended that one should read the admission in its context, but there is nothing in the context to add to the admission of negligence in failing to institute proceedings within three years an admission that this caused the respondent to lose all prospects of recovering damages. The possibility of action in Victoria did not, it appears, occur to the appellant's advisers until February last and it is perhaps a reasonable inference that on the respondent's side the question of a Victorian suit was not considered until it was raised by the appellant's solicitors in May. There was it seems a common assumption, for some time, that there was no question of suing elsewhere than in Queensland, and that the allegation in paragraph 12 of the statement of claim was therefore correct. That cannot govern, or rather distort, the meaning of the admission which was made; it did not deal with any consequences of the admitted negligence and, in particular, did not deal with the consequence alleged in paragraph 12 of the statement of claim, namely that by reason of the appellant's negligence the plaintiff lost all prospects of recovering damages. An admission of paragraph 12 of the statement of claim was neither express nor implicit in the admission of negligence in failing to institute proceedings.

Once one rejects the respondent's contention that the admission of negligence necessarily involved an admission that the negligence caused loss of the right of action, it is seen to be difficult to uphold the judgment under appeal.

Whether or not the amendment is allowed, the respondent has the task of satisfying the Court at the trial that the appellant's failure to bring action within time in this State deprived her of all prospects of recovering damages from the employer. That is not admitted on the pleadings as they stand and it is possible that, even without amending, the appellant could contend at the trial that the respondent could have sued in Victoria. R.S.C. O.22 r.14 requires all matters to be pleaded which, if not raised, could take the opposite party by surprise, but it would be highly artificial in the circumstances if the respondent were able to establish paragraph 12 of the statement of claim by proof that the Queensland limitation period had expired with both parties aware of, but unable to refer to, the longer limitation period applicable in Victoria.

Faced with this difficulty, counsel for the respondent contended, as we understood him, that the amendment should be refused on the ground that the appellant cannot possibly succeed on the issue of failure to mitigate. He said that all the evidence relevant to it is presently before the Court and that it shows that a Victorian suit against the employer would be beset with difficulties for the respondent: expense, delay and uncertainty of outcome. As to the last, counsel contended that a Victorian suit would be subject to the risk that it would be heard in Queensland, pursuant to an order under the Jurisdiction of Courts (Cross-Vesting) Act 1987. He said that if that occurred, s.11(3) of the Act might produce the result that the Queensland court would be obliged to apply the Queensland limitation period rather than the Victorian limitation period. We were not asked to decide the effect of that provision and do not find it necessary to do so. As counsel for the appellant pointed out, it may be that a Victorian court would not transfer such proceedings to this State without an undertaking on the part of the defendant not to plead the Queensland limitation statute.

In our opinion, it is inappropriate for this Court finally to decide the question raised by paragraph 12 of the statement of claim and the proposed amendment, insofar as it depends upon the possibility of suing in Victoria. Ordinarily, on an application for amendment of pleadings, the court is not concerned to predict the result of, or to produce a final decision in, an issue raised or sought to be raised. Here, it would be especially inappropriate to do so, for facts relevant to the possibility of suit in Victoria have not been fully investigated. For example, the material does not disclose whether a search was ever made on the respondent's behalf to ascertain the legal entity trading under the name "Archbishop Duhig Nursing Home". Again, the matter was argued before us on the assumption that the respondent was, at material times, herself unaware and had no means of knowledge that that entity was a Victorian company; but that is not necessarily so. The argument that the possibility of suit in Victoria, as relevant to the question of the respondent's alleged loss, is doomed to fail or must be held here and now to fail must be rejected. One cannot deny the possibility that it will be held that (to use language of a kind put to us) the respondent neither is nor was "obliged" to sue in Victoria.

But that issue should be determined, if necessary, at the trial. It should be noted that the respondent brought before the judge below an application by notice of motion, for certain declarations, but that was not dealt with by the judge and was not raised in this Court.

On the evidence, the respondent is suffering from serious psychological problems said to be due to the 1986 injury; it is said that the delay in resolving her claim has been very damaging to her state of mind. These considerations would no doubt incline a court to give priority to the hearing of her case, in this State or elsewhere. But they cannot in our opinion justify a refusal to allow the appellant specifically to plead a defence which is, as the pleadings stand, within the general scope of the matter raised by paragraph 12 of the statement of claim.

The case does not appear to us to be one like Commonwealth v. Verwayen (1990) 170 C.L.R. 394, in which a defendant was not permitted to amend so as to reverse a stance previously taken. Here, what the appellant has done by her application to amend is to focus attention on a possible weakness in the respondent's case as pleaded. This has given rise to the necessity of an awkward decision on the respondent's side:

whether or not to issue proceedings in Victoria and, perhaps, whether or not to pursue those proceedings or simply keep them alive pending resolution of the Queensland suit. While it is unfortunate for the respondent that this difficulty exists, it was inherent in her case and was not created by the application for amendment. Further, the factual discovery which prompted that application was made in public records available to both sides; it is not as if the appellant, at a late stage, were seeking to put forward and rely on a fact peculiarly within her own knowledge.

The appeal must therefore be allowed and the orders made below set aside. In lieu, it will be ordered that the appellant's application for leave to amend its defence be allowed, that the costs of the application be costs in the cause and that the costs of and incidental to this appeal be taxed and paid by the respondent.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 196 of

1992

Write No. 940 of 1991

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice de Jersey

BETWEEN:

CHRISTINE SHARON PRICE

(Plaintiff) Respondent

AND:

JOAN BENNETT
trading under the firm name or style of

BENNETT AND ASSOCIATES

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the Second day of November 1992

MINUTE OF ORDER:	The appeal is allowed and the orders made below set aside. In lieu, it is ordered that the appellant's application for leave to amend its defence be allowed, that the costs of the application be costs in the cause and that the costs of and incidental to this appeal be taxed and paid by the respondent.
CATCHWORDS:	PRACTICE - AMENDMENT - Appellant appealed against refusal to allow amendment to defence - to add defence of failure to mitigate by not bringing action in Victoria - whether amendment contrary to earlier admission of negligence - whether admission extends to admission of damage.

RSC, O.22 r.14, Jurisdiction of Courts

(Cross Vesting) Act s.11(3)

Counsel:	R. Myers for the Appellant S.C. Williams Q.C.., with him A.J. Williams for the Respondent
Solicitors:	Clayton Utz for the Appellant Dillons for the Respondent
Hearing Date(s):	27 October 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 196 of

1992

Writ No. 940 of 1991

BETWEEN:

CHRISTINE SHARON PRICE

(Plaintiff) Respondent

AND:

JOAN BENNETT
trading under the firm name or style of

BENNETT AND ASSOCIATES

(Defendant) Appellant

_______________________________________________

The President
Mr. Justice Pincus

Mr. Justice de Jersey

_______________________________________________

Judgment of the Court delivered on 2nd

November, 1992.

_______________________________________________

APPEAL ALLOWED. ORDERS MADE BELOW SET ASIDE.
IN LIEU, IT IS ORDERED THAT THE APPELLANT'S
APPLICATION FOR LEAVE TO AMEND ITS DEFENCE BE
ALLOWED, THAT THE COSTS OF THE APPLICATION BE
COSTS IN THE CAUSE AND THAT THE COSTS OF AND
INCIDENTAL TO THIS APPEAL BE TAXED AND PAID

BY THE RESPONDENT.

_______________________________________________