Quarmby v May
[1999] TASSC 98
•22 September 1999
[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 plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."
The original statement of claim defined the plaintiff's land in the following terms:
"1The plaintiff is and was at all material times the owner and entitled to the possession of the properties situate at Southport in Tasmania being the land comprised in Folios of the Register Volume 3969 Folio 22 and Volume 3947 Folio 62 (hereinafter referred to as 'the plaintiff's land'.)"
The statement of claim, par3, alleges:
"3On the 9th day of July, 1987, the defendant with his workmen, contractors and machinery, entered upon the portions of the plaintiff's land which adjoins Esperance Road and New Street, Southport and constructed certain roadworks thereon."
The first proposed amendment is to change "Certificate of Title Volume 3969 Folio 22" to "Certificate of Title Volume 3969 Folio 23". Both titles were handed up on the hearing of the application. The latter title relates to Lot 4 and the former relates to Lot 3. It is clear that the original reference to Lot 3 and Certificate of Title Volume 3969 Folio 22, was an error. Lots 3 and 4 are adjoining pieces of land. However, Lot 3 does not, but Lot 4 does, bound the roads referred to in the statement of claim, par3. The proposed amendment does not raise any new cause of action. The cause of action remains trespass to the plaintiff's land. The proposed amendment alters a particular to that cause of action. In any event, the proposed amendment should be allowed upon the basis that it constitutes a "peculiar circumstance" referred to in Weldon v Neal (supra) at 395. In National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 3) 5/1998, I said, at 7, with respect to making amendments to correct mistakes in the original pleading:
"I think that the principle was well expressed by Rogers J in the New South Wales Supreme Court in ANZ v Larcos Unreported 23 December 1987 at 10-11 of the printed judgment:
'In any event, it is important to recognise that the doctrine in Weldon does not suggest that the Court lacks power to allow the amendment but rather that, in the absence of very peculiar circumstances, a judge is bound in the proper exercise of discretion to refuse the application (Hale v Meynick [1957] 2 QB 455 at 481).'
The circumstances of this case make it easy to illustrate what might constitute such peculiar circumstances. Suppose that the day after the amendment had been made and par28 had been deleted by a slip counsel realised that a mistake had been made and immediately notified the other side and made prompt application to undo the error. Surely the proper exercise of the discretion would require that an order re-instating the omitted paragraph be made. What if a week went by before the error was noticed? What if it was a month? In Krueger v Jansen Northern Territory Supreme Court Unreported 11 April 1990, Asche CJ observed (obiter dicta) that inadvertent error, coupled with delay by the other side, constituted peculiar circumstances to which Lord Esher referred in Weldon v Neal."
It appears that Volume 3969 Folio 23 and Volume 3947 Folio 62 have been superseded and new titles have been issued to those lands. The plaintiff also seeks leave to amend to plead the current certificates of title in addition to the older ones. This proposal is of no significance and, accordingly, leave will be given to amend the statement of claim by deleting par1 and substituting par1(a) in the following terms:
"1(a) The plaintiff is and was at all material times the owner and entitled to the possession of the properties situate at Southport in Tasmania being the land comprised in folios of the register volume 17704 folio 4 (previously volume 3969 folio 23) and volume 242730 folio 1 (previously volume 3947 folio 62)."
The plaintiff's next proposal is to add a new par1(b) in the following terms:
"(b)The land of which the Plaintiff was the registered proprietor by virtue of Certificate of Title volume 3969 folio 23 was Lot no 4 on Diagram no 17704 and on the plan on that Certificate of Title. The plan on the said diagram was identical to the plan on the said Certificate of Title. It showed that the said Lot 4 was bounded on the west and south by 'Esperance Road'."
This proposed pleading is merely consequential upon the proposed amendment to substitute Folio 23 for Folio 22 and should also be allowed.
The next proposed amendment falls into the same category. The plaintiff seeks leave to amend to add par1(c) in the following terms:
"(c)The land of which the Plaintiff was the registered proprietor by virtue of Certificate of Title volume 3947 folio 62 was 11.40 ha as shown on the plan on that Certificate of Title. The said plan showed the said 11.40 ha to be bounded on the north-east by 'Esperance Road', on the north by 'Tully St' and on the west by 'New St'."
The original statement of claim pleaded that the plaintiff was entitled to possession of the land comprised in Certificate of Title Volume 3947 Folio 62 and the proposed amendment, par1(c) is no more than a statement of what is disclosed on the face of that title. It is the proposed amendments pars1(d) and 1(e) that have excited most opposition. Proposed par1(d) provides:
"(d)In the premises, at all material times the title that the Plaintiff had by virtue of his proprietorship of the lands in the said Certificates of Title extended to the middle of Esperance Road, Tully Street, and New Street."
This proposed amendment pleads the ad medium filum viae rule. By virtue of proposed par1(d), the plaintiff wishes to plead that because the boundary between the lands of the plaintiff and the lands of other owners is a road, the plaintiff is presumed, in the absence of evidence to the contrary, to own the road up to an imaginary line or thread drawn along the centre of the road. See Holmes v Bellingham (1860) 29 LJCP 132. This, as Mr Tree for the defendant pointed out, is a departure from the existing pleading which, by par3 of the statement of claim, alleges that the trespass was entry by the defendant, with his workmen, contractors and machinery upon portions of the plaintiff's land which "adjoins [sic] Esperance Road and New Street, Southport." The proposed amendment seeks to allege that the trespass was entry onto the plaintiff's land which was (in part) one half of Esperance Road, Tully Street and New Street.
Proposed par1(e) provides:
"1(e)From about June, 1981 until the occurrence of the events referred to in paragraphs 3, 4 and 5 below the Plaintiff had possession of the land shown on the said certificates of title as 'Esperance Road' and of a narrow strip of land about 250 metres long lying between a fence and the land shown as 'Esperance Road' on certificate of title volume 3947 folio 62."
By this paragraph, the plaintiff wishes to plead that he had a possessory title to a narrow strip of land about 250 metres long lying between a fence and the land shown as Esperance Road on one of the certificates of title referred to in the statement of claim, par1(a), namely Certificate of Title volume 3947 folio 62.
Consequentially, the plaintiff seeks leave to amend to plead that all of the lands referred to in the proposed amended pars1(a) - (e) were owned by the plaintiff and/or were in his possession. Further, although not underlined in the proposed amended statement of claim attached to the application, the plaintiff seeks leave to amend the allegation in par3 of the statement of claim to allege that the defendant simply entered upon the plaintiff's land. This, of course, is all the land referred to in proposed pars1(a) - (e).
First of all, it must be observed that the power to make amendments is expressed in entirely unfettered terms by the Rules of Court, O31, r1 which provides:
"1 The Court or a judge may, at any stage of the proceedings, allow any party to alter or amend the endorsement on his writ or his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
Notwithstanding the unfettered nature of the discretion, it is well settled that an amendment will not be allowed if it infringes the principle set out in the passage quoted above from the judgment of Lord Esher MR in Weldon v Neal (supra).
The plaintiff's writ is endorsed, "[damages for] trespass to the plaintiff's lands situate at Southport". If established, the facts pleaded in the original statement of claim, will entitle the plaintiff to damages for trespass by the deceased to the plaintiff's land at Southport.
Trespass is an entry onto land to which the plaintiff is entitled to possession. It is not necessary to show ownership, merely entitlement to possession. The right to possession may have several bases. See Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84; Hansard v Tame Et Ux [1957] NZLR 542; Mount Bischoff Tin Mining Co Registered v Mount Bischoff Extended Tin Mining Co No Liability (1913) 50 CLR 549.
The proposed amendments will not add a new cause of action. The cause of action remains trespass to land at Southport to which the plaintiff claims to be entitled to possession. The proposed amendments do no more than alter the particulars of that land and add new bases upon which the plaintiff claims to have been entitled to possession. The proposal is to plead new factual bases for the already pleaded assertion of entitlement to possession. No new cause of action is set up by the proposed amendments.
On behalf of the defendant, Mr Tree submitted that the proposed amendments constituted "a new set of ideas" and, accordingly, infringe the rule well settled by Weldon v Neal. I reject that submission. In Devonshire Managements & Ors v Australia and New Zealand Banking Group Ltd B3/1992, I traced the recent history in Australia of the application of the rule in Weldon v Neal. It is unnecessary to repeat that history. It suffices to say that in the late 1960s and 1970s, there were a number of cases in the Victorian Supreme Court to the effect that if it was sought by amendment to change the basis of a claim to a new basis, this constituted a new cause of action and the amendment should not be allowed. However, those views were shown to be wrong by Black v The City of South Melbourne (1965) 38 ALJR 309 and Renowden v McMullin & Anor (1970) 123 CLR 584. For the purposes of the statute of limitations and the rule in Weldon v Neal, the issue is not whether it is sought to put the claim on a new basis, but whether it is sought to raise a new cause of action. That this is correct was accepted in Victoria in Cutrona v Harnischfeger of Aust Pty Ltd [1977] VR 306.
The principles set out in Black and Renowden have been applied more than once by the Full Court of the Supreme Court of Tasmania. See Metropolitan Transport Trust v Mayne 43/1990; Tasmania Mines Ltd v Merrywood Coal Co Pty Ltd 97/1996. In Kingston Earthworks Pty Ltd v Iles (1996) 6 Tas R 433, Zeeman J said, at 438:
"The rule in Weldon v Neal (1887) 19 QBD 394 is not concerned with the raising of a new cause of action in the sense of altering the totality of the material facts relied upon by the plaintiff. An amendment which does no more than particularise the facts by which a plaintiff proposes to sustain a cause of action already pleaded is not affected by the rule. What is affected by it is a proposed amendment which in substance amounts to raising a new action for a claim which is statute barred. So much is settled by Black v City of South Melbourne (1964) 38 ALJR 309. The addition of a claim based on breach of statutory duty to an action originally based on common law negligence amounts to the introduction of a new cause of action (O'Grady v Botany Wools (Australia) (1964) 64 SR (NSW) 359, approved in Renowden v McMullin (1970) 123 CLR 584 at 612-613)."
The defendant did not rely upon any other basis for her opposition to the grant of leave to amend the statement of claim, pars1(a) - (e) and the consequential amendments. Accordingly, the application is granted. The plaintiff is given leave to amend the statement of claim in accordance with the attachment to the interlocutory application dated 20 August 1999.
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