Quarmby v May - [1999] TASSC 98

[1999] TASSC 98

CITATION: Quarmby v May [1999] TASSC 98

PARTIES:  QUARMBY, Alan
  v
  MAY, Ruby

(as personal representative of the estate of the late
MAY, John Alfred)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  739/1993
DELIVERED ON:  22 September 1999
DELIVERED AT:  Hobart
HEARING DATES:  13 September 1999
JUDGMENT OF:  Underwood J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under the Rules of Court - Amendments - Statement of claim - Whether amendment to plead new cause of action - Meaning of new cause of action.
Rules of Court (Tas), O31, r1.

Weldon v Neal (1887) 19 QBD 394, followed.
Black v The City of South Melbourne (1965) 38 ALJR 309; Renowden v McMullin & Anor (1970) 123 CLR 584; Tasmania Mines Ltd v Merrywood Coal Co Pty Ltd 97/1996; Kingston Earthworks Pty Ltd v Iles (1996) 6 Tas R 433, applied.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Applicant:  A M Blow QC
             Defendant:  P W Tree
Solicitors:
             Applicant:  Baker Tierney & Wilson
             Defendant:  Hand Ogilvie & Breheny

Judgment Number: [1999] TASSC 98
Number of Paragraphs: 23

Serial No 98/1999
File No 739/1993

ALAN QUARMBY v RUBY MAY
(as personal representative of the estate of the late)
JOHN ALFRED MAY

REASONS FOR JUDGMENT UNDERWOOD J
22 September 1999

By a writ filed on 2 July 1993, the plaintiff commenced proceedings against the late John Alfred May for damages for trespass to land. The statement of claim is dated 22 June 1994. It alleges that the deceased trespassed on the plaintiff's land:

(i)on 9 July 1987 by entering onto the plaintiff's land and constructing roadworks;
(ii)on diverse dates thereafter by again entering on the plaintiff's land and constructing further works; and
(iii)since 9 July 1987 by driving motor vehicles over the plaintiff's land and by preventing him from using it for the purpose of farming.

The only relief sought in the statement of claim is damages. It is common ground that the deceased died on 12 September 1993 and consequently no act of trespass is alleged to have occurred after that date. In order to correct the title to the proceedings, the name of the defendant was amended upon the hearing of this application to read "Ruby May as personal representative of the estate of the late John Alfred May".

In addition, the plaintiff sought leave to make amendments to the statement of claim. The defendant opposed the making of the order sought (except in the case of certain minor matters) upon the basis that by the proposed amendments, the plaintiff was seeking to set up an entirely new case. The foundational authority relied upon was Weldon v Neal (1887) 19 QBD 394. In that case, Lord Esher MR said, at 395:

"If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the statute of limitations, it would be allowing the…

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.

Continue reading Quarmby v May

Details

AGLC: Quarmby v May [1999] TASSC 98
Case: [1999] TASSC 98
Decision Date: 22 September 1999

CaseChat Overview and Summary

Quarmby v May is a case concerning a dispute over trespass to land in Tasmania. The plaintiff, Alan Quarmby, brought an action against the late John Alfred May, who allegedly trespassed on Quarmby's land by constructing roadworks and preventing him from using it for farming. After May's death, his estate, represented by Ruby May, was substituted as the defendant. Quarmby sought to amend his statement of claim to correct certain errors and add new factual bases for his claim of entitlement to possession of the land. The court had to determine whether these amendments constituted a new cause of action, which would not be permissible under the rules of court and precedents such as Weldon v Neal.

The primary legal issue before the court was whether the proposed amendments to the statement of claim introduced a new cause of action, which would be barred by the rule in Weldon v Neal. The court examined the nature of the proposed amendments to determine if they merely altered particulars of the existing cause of action or if they introduced a fundamentally new claim. This analysis involved considering whether the amendments changed the basis of the claim or simply provided additional details to support the existing cause of action.

The court held that the proposed amendments did not introduce a new cause of action but merely altered particulars of the existing cause of action of trespass to land. The amendments did not change the fundamental basis of the claim but added new factual bases for the plaintiff's assertion of entitlement to possession. The court relied on the principles established in cases such as Black v The City of South Melbourne and Renowden v McMullin, which clarified that an amendment that does not alter the material facts of the case but rather particularises the facts to sustain an already pleaded cause of action is permissible. The court granted leave for the plaintiff to amend the statement of claim as proposed.

The final orders of the court were that the plaintiff, Alan Quarmby, was granted leave to amend the statement of claim in accordance with the attachment to the interlocutory application dated 20 August 1999. This allowed Quarmby to correct the errors in the original statement of claim and add new factual details supporting his claim of entitlement to possession of the land in question.

Orders