Read v State of Queensland - [2016] QDC 107

DISTRICT COURT OF QUEENSLAND

CITATION:

Read v State of Queensland [2016] QDC 107

PARTIES:

GAVIN MICHAEL READ

Plaintiff

V

STATE OF QUEENSLAND

Defendant

FILE NO:

No. 177 of 2013

DIVISION:

Civil

PROCEEDING:

Application to amend Statement of Claim or alternatively extend the limitation period.

DELIVERED ON:

16 May 2016

DELIVERED AT:

Southport

HEARING DATE:

29 April 2016 at Cairns

JUDGE:

Judge C F Wall QC

ORDER:

Application to amend Statement of Claim under Rule 376(4) Uniform Civil Procedure Rules 1999 dismissed. Limitation period extended for some, but not all new causes of action. Leave given to Plaintiff to file and serve a further amended Statement of Claim and for Defendant to file and serve a further amended Defence. Plaintiff to pay defendant’s costs of the application.

CATCHWORDS:

CIVIL – PLEADINGS – application by plaintiff to amend Statement of Claim – new causes of action – limitation period expired – whether new causes of action arise out of the same facts or substantially the same facts as the original cause of action – relevant principles – whether limitation period should be extended – whether prejudice to the defendant.

LEGISLATION:

Rules 376, 378 Uniform Civil Procedure Rules 1999

Sections 30, 31, Limitation of Actions Act 1974

CASES:

Thomas v State of Queensland [2001] QCA 336

Borsato v Campbell [2006] QSC 191

Wolfe v State of Queensland [2009] 1 Qd R 97

Draney v Barry [2002] 1 Qd R 164

Edwards v State of Queensland & Anor [2012] QSC 248

Baker v Hallett [2004] QSC 132

Dick v University of Queensland [2000] 2 Qd R 476
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

COUNSEL:

Mr Gerard Mullins for the Plaintiff

Mr Christopher Fitzpatrick for the Defendant

SOLICITORS:

Shine Lawyers for the Plaintiff

Crown Law for the Defendant

This is an application by the plaintiff under rule 376(4) Uniform Civil Procedure Rules 1999 (“UCPR”) for leave to amend the Statement of Claim or alternatively for leave under s 31 of the Limitation of Actions Act 1974 to commence proceedings in respect of the additional causes of action identified in paras 5A, 7(e) – (h) and 7B of the amended Statement of Claim filed 21 October 2015. The application is opposed by the defendant. The Claim and Statement of Claim were filed on 19 September 2013. The limitation period expired on 23 September 2013. The plaintiff’s application to amend was filed on 29 March 2016.

The plaintiff was injured on 9 January 2009 in a single vehicle accident on the Bruce Highway in the vicinity of Josephine Creek about 5kms south of Miriwinni. The claim, as initially pleaded in para 5 of the Statement of Claim, alleged that it was raining heavily at the time and the road was covered with water. The plaintiff’s vehicle hit a dip in the road which was obscured by water and this caused the plaintiff to lose control of his vehicle which veered left, slid down the road and crashed into a bridge…

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.

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Details

Case: [2016] QDC 107
Decision Date: 16 May 2016

CaseChat Overview and Summary

Read initiated legal proceedings against the State of Queensland, alleging a series of breaches of statutory duties and negligence claims stemming from events occurring in 2016. The case was heard in the District Court of Queensland. The plaintiff sought to amend the Statement of Claim to include additional causes of action that arose from the same factual matrix as the original claims, despite the expiration of the statutory limitation period.

The central legal issues before the court were whether the new causes of action were based on the same facts or substantially the same facts as the original claims, and if so, whether the limitation period should be extended. The court considered whether extending the limitation period would prejudice the defendant and if the new claims were an expansion or a new cause of action altogether.

The court found that while some of the new claims did arise from the same factual basis as the original claims, they were not sufficiently similar to warrant an extension of the limitation period for all claims. The court reasoned that extending the limitation period for some claims but not others would not unduly prejudice the defendant, as the new claims could still be addressed within the original factual context. The court also noted that the plaintiff had not demonstrated sufficient grounds for extending the limitation period for all the new causes of action.

The court dismissed the application to amend the Statement of Claim in its entirety but allowed the plaintiff to file a further amended Statement of Claim for the claims that could proceed. The limitation period was extended for these claims. The defendant was ordered to file an amended Defence in response. The plaintiff was directed to pay the defendant’s costs associated with the application.

Orders

Orders of the court

Application to amend Statement of Claim under Rule 376(4) Uniform Civil Procedure Rules 1999 dismissed. Limitation period extended for some, but not all new causes of action. Leave given to Plaintiff to file and serve a further amended Statement of Claim and for Defendant to file and serve a further amended Defence. Plaintiff to pay defendant’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Read v State of Queensland [2016] QDC 107
PARTIES:	GAVIN MICHAEL READ Plaintiff V STATE OF QUEENSLAND Defendant
FILE NO:	No. 177 of 2013
DIVISION:	Civil
PROCEEDING:	Application to amend Statement of Claim or alternatively extend the limitation period.
DELIVERED ON:	16 May 2016
DELIVERED AT:	Southport
HEARING DATE:	29 April 2016 at Cairns
JUDGE:	Judge C F Wall QC
ORDER:	Application to amend Statement of Claim under Rule 376(4) Uniform Civil Procedure Rules 1999 dismissed. Limitation period extended for some, but not all new causes of action. Leave given to Plaintiff to file and serve a further amended Statement of Claim and for Defendant to file and serve a further amended Defence. Plaintiff to pay defendant’s costs of the application.
CATCHWORDS:	CIVIL – PLEADINGS – application by plaintiff to amend Statement of Claim – new causes of action – limitation period expired – whether new causes of action arise out of the same facts or substantially the same facts as the original cause of action – relevant principles – whether limitation period should be extended – whether prejudice to the defendant.
LEGISLATION:	Rules 376, 378 Uniform Civil Procedure Rules 1999 Sections 30, 31, Limitation of Actions Act 1974
CASES:	Thomas v State of Queensland [2001] QCA 336 Borsato v Campbell [2006] QSC 191 Wolfe v State of Queensland [2009] 1 Qd R 97 Draney v Barry [2002] 1 Qd R 164 Edwards v State of Queensland & Anor [2012] QSC 248 Baker v Hallett [2004] QSC 132 Dick v University of Queensland [2000] 2 Qd R 476 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
COUNSEL:	Mr Gerard Mullins for the Plaintiff Mr Christopher Fitzpatrick for the Defendant
SOLICITORS:	Shine Lawyers for the Plaintiff Crown Law for the Defendant