Ritchie & Parker Alfred Green & Co v Gornalle
[2000] TASSC 8
•29 February 2000
[2000] TASSC 8
CITATION: Ritchie & Parker Alfred Green & Co & Anor v Gornalle [2000] TASSC 8
PARTIES: RITCHIE & PARKER ALFRED GREEN & CO (a firm)
WOODBERRY, Geoffrey Carl
v
GORNALLE, Richard Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 33/1999
DELIVERED ON: 29 February 2000
DELIVERED AT: Hobart
HEARING DATE: 19 August 1999
JUDGMENT OF: Cox CJ, Wright J, Crawford J
CATCHWORDS:
Procedure - Supreme Court Procedure - Tasmania - Practice under Rules of Court - Amendments - Statement of claim - Whether amendment introduced statute-barred cause of action.
Weldon v Neal (1887) 19 QBD 394, discussed.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Appellant: P W Tree
Respondent: A M Blow QC
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Bartletts
Judgment Number: [2000] TASSC 8
Number of paragraphs: 37
Serial No 8/2000
File No FCA 33/1999
RITCHIE & PARKER ALFRED GREEN & CO
and GEOFFREY CARL WOODBERRY
v RICHARD PHILLIP GORNALLE
REASONS FOR JUDGMENT FULL COURT
COX CJ
WRIGHT J
CRAWFORD J (Dissenting)
29 February 2000
Orders of the Court
Appeal dismissed.
Serial No 8/2000
File No FCA 33/1999
RITCHIE & PARKER ALFRED GREEN & CO
and GEOFFREY CARL WOODBERRY
v RICHARD PHILLIP GORNALLE
REASONS FOR JUDGMENT FULL COURT
COX CJ
29 February 2000
The appellant is seeking to overturn the learned primary judge's allowance of certain amendments to the plaintiff's statement of claim which sets up causes of action in tort and contract for injuries sustained by him allegedly through negligent advice and conduct by the solicitors he engaged in respect of divorce proceedings.
Much of the debate has focused on whether or not the learned primary judge misinterpreted the so-called "rule" in Weldon v Neal (1887) 19 QBD 394 by confining its operation to the disallowance of amendments only if they have the effect of letting in a new cause of action "in a technical sense". His Honour made reference to a passage in the judgment of Kelly J in Golski v Kirk (1987) Aust Torts Reports 80-095 at 68,580 - 68,581 (also reported in (1987) 72 ALR 443 at 451:
"In my opinion, a plaintiff should not be allowed to introduce new claims by amendment which in substance amount to the bringing of a new action for claims already barred by statute. However, where the proposed amendments do not change the cause of action but do no more than particularise the facts by which the respondent proposes to sustain it even though the facts sought to be brought forward under the amendment are quite different from those originally alleged, amendment will be allowed." [Emphasis added by the learned primary judge.]
and continued (at 2 of his Reasons for Judgment dated 19 April 1999):
"That passage reflects, as I understand the issue, the rationale behind Renowden v McMullin and Black v City of Melbourne, namely that the new cause of action referred to in Weldon v Neal is a reference, in a technical sense, to a new cause of action and is not a reference to new facts to sustain the pleaded cause of action even if those facts raise quite a different factual case from that pleaded."
The scope of the rule in Weldon v Neal (supra) has been much debated and was the subject of an informative article by Susan Campbell entitled "Amendments and Limitations: The Rule in Weldon v Neal" (1980) 54 ALJ 643. At the conclusion of the article, the author set out a schedule of the significant cases decided to that time. With two or three exceptions, they are all consistent with the proposition that an amendment will normally be refused if it introduces a new cause of action in a technical sense, or if, though not doing so, it introduces such significantly different facts that the defendant for reasons other than loss of a right to plead the relevant Limitation Act would be prejudiced by the amendment. Weldon v Neal was an action for slander where amendments seeking the introduction of claims for assault and false imprisonment were sought. Clearly these were new causes of action in a technical sense and the amendments were refused. In Marshall v London Passenger Transport Board [1936] 3 All ER 83 (CA), the action was for negligent driving of a tramcar. A proposed claim for breach of statutory duty to maintain the roadway was refused. In Collins v Hertfordshire County Council [1947] KB 598, there was an action against a hospital for negligence of a surgeon and a resident medical officer. An amendment to allege as negligence of the hospital, the negligence of the hospital pharmacist was permitted, no new cause of action being involved. A similar result occurred in Dornan v J W Ellis & Co Ltd [1962] 1 QB 583 (CA). See also Robinson v Unicos Property Corporation Ltd [1962] 2 All ER 24.
In Victoria, additional claims on behalf of six children in a case where a widow had sued under the Wrongs Act 1958 were not permitted by way of amendment (Patterson v Richards [1963] VR 179 (FC). In Black v City of South Melbourne (1964) 38 ALJR 309, in an obiter dictum, Barwick CJ commented:
"It seems to me quite plain that, throughout, the plaintiff's cause of action did not change, though his particularizing of the facts by which he proposed to sustain that cause of action did significantly alter. It would, in my opinion, have been an improper exercise of judicial discretion for the trial judge in this case to have refused the plaintiff the opportunity to present his proofs of that cause of action differently to the manner in which he had originally proposed. Questions of surprise and disadvantage because of a change of course in proof can almost always be met by adjournment and appropriate orders as to costs. It would certainly have been so in this case. As there was, in my opinion, no new cause of action involved in the changed particulars, no question of the statute of limitations fell for consideration."
Hristeas v GMH Pty Ltd [1968] VR 14 was an action against an employer for negligence in respect of personal injuries caused by electric shock from a welding apparatus. An amendment to allege that the injuries were caused by repeated use of a pressure hand grip on that apparatus was allowed. Juric v Dickson Supply Company Pty Ltd [1976] VR 701 was an action against an employer for negligence in failing to support a metal frame which fell on the plaintiff. Additional allegations of negligence depended upon the frame being supported by a crane were allowed, but breaches of statutory duty imposed by the Lifts and Cranes Act 1967 were not. In Cutrona v Harnischfeger of Australia Pty Ltd [1977] VR 306 (FC), the statement of claim in an action for negligence and breach of statutory duty by an employer was sought to be amended so as to plead different statutory duties. The amendment was refused. Other instances where amendments were refused because a new cause of action was sought to be introduced (or revived, notwithstanding what amounted to its earlier abandonment) are Renowden v McMullen (1970) 123 CLR 584; Harries v Ashford [1950] 1 All ER 427 (CA); O'Grady v Botany Wools (Australia) (1964) 64 SR (NSW) 359 (FC); and Kingston Earthworks Pty Ltd v Iles (1997) 6 Tas SR 443, while instances where the amendments were allowed, there being no new cause of action, are Mayne v MTT 43/1990 (FC); Devonshire Management v ANZ Banking Group B3/1992; Towns v Que River Mining Pty Ltd A75/1995; and Tasmanian Mines Ltd v Merrywood Coal Company Pty Ltd A97/1996 (FC).
Of the exceptions to my proposition, Harris v Raggatt [1965] VR 779, a decision of Sholl J at first instance, permitted an amendment which did involve the pleading of a new contract and hence a new cause of action in a technical sense. His Honour said, at 785:
"If we say that the law is that the plaintiff cannot be allowed, after the period of limitations has run, to set up a new cause of action, we use the term in a special sense as meaning a 'new case' varying so substantially from what has previously been set up that it would involve investigation of matters of fact or questions of law, or both, different from what have already been raised and of which no fair warning has been given, so that it would be unfair and unjust to the defendant to put him in peril of a judgment founded on the new matter. Certainly, if there is set up a 'new case' on the facts, upon which is based a new claim upon a new and different legal basis ¾ a new cause of action in that sense ¾ leave will ordinarily be refused."
The last sentence is not inconsistent with the second part of my proposition, but even in respect of the first part, my use of the word "normally" constitutes a recognition that even where there is a new cause of action in a technical sense, there may be some circumstances where leave should be granted because no injustice will arise. Though expressing it in words suggesting that such a course would be rare, Lord Esher MR in Weldon v Neal (supra) acknowledged the possibility when he said:
"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" (at 395).
Sholl J found that "the proposed amendment in the present case is sufficiently closely related to what is alleged to make it fair that it should be allowed" (at 786). The decision of Lush J in Christodoulopoulos v Rowntree & Co (Aust) Pty Ltd [1971] VR 378 is also inconsistent with the general proposition that amendment will not be allowed if a new cause of action is introduced, for he permitted a plea in respect of the breach of a statutory duty in a negligence case to be added after the statutory limitation period had expired. However, the Full Court of the Supreme Court of Victoria expressly disapproved of the decision in Cutrona v Harnischfeger of Australia Pty Ltd (supra at 311).
The facts of this case are set out in the judgment of Wright J, which I have had the opportunity to peruse. I respectfully adopt his categorisation of them as not involving the introduction of a new cause of action in a technical sense so as to offend the rule which would normally require that the amendment not be allowed. Likewise, I am of the view that the facts do not involve any significant departure from the substance of the plaintiff's original complaint against the defendants and I note that this was not a case where any other form of prejudice was suggested as a basis for excluding the amendment on discretionary grounds. If by his reference to what was said by Kelly J in Golski v Kirk (supra) the learned primary judge meant to imply that, so long as no new cause of action was introduced, the amendment would be allowed whether or not the new facts pleaded set up a "quite different set of ideas, quite a different allegation of fact" (per Lord Wright MR in Marshall v London Passenger Transport Board (supra) at 88) I would have to disagree; but I do not think that he did mean to suggest that, and even if he did, the amendments made here do not amount to the different set of ideas contemplated by Lord Wright MR. I would dismiss the appeal.
File No FCA 33/1999
RITCHIE & PARKER ALFRED GREEN & CO and
GEOFFREY CARL WOODBERRY v
RICHARD PHILLIP GORNALLE
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
29 February 2000
At all times, the respondent's case has been that he was precluded from successfully pursuing a claim for property settlement against his wife by reason of negligent advice and conduct on the part of the solicitors whom he engaged for that purpose. He seeks to amend, and further particularise, those breaches of duty by alleging not only that his solicitors failed to advise as to the making of such an application within the time permitted by the Family Law Act 1975, but also by alleging that they made an application for leave to institute proceedings claiming a property settlement, but then withdrew it, or advised him to withdraw it, without advising him of the consequences of such a withdrawal.
In no sense can this be regarded as an attempt to make an entirely new case. That portion of the proposed amended statement of claim which the appellant now challenges is an integral part of the incompetent conduct alleged to have produced damage to the respondent and is not essentially dissimilar from the facts considered by this Court in Mayne v Metropolitan Transport Trust 3/1992. If the respondent did not raise these issues in his statement of claim, it is difficult to see how the appellants could have avoided referring to the withdrawal of the application for leave to institute proceedings as an issue of substance going to the merits of their defence. It is also difficult to see how some of the allegations not objected to in the statement of claim could be sustained without reference to the particulars now in question. Mr Tree contends that those allegations are of irrelevant facts, but no application has been made to strike them out of the statement of claim and Mr Tree disclaimed any necessity to do so.
The respondent has alleged a continuum of mutually compounding errors on the part of his legal advisers which, he claims, deprived him of the opportunity to pursue an application for a property settlement against his former wife.
The respondent has not sought to paint a new picture, but to supply some missing pieces to complete the existing jigsaw puzzle. Whether the rule in Weldon v Neal (1887) 19 QBD 394 is confined to the exclusion of amendments which raise a new cause of action "in a technical sense" or it applies equally to those in which new considerations, new sets of facts, or new ideas are put forward to support an existing cause of action, it seems to me that the proposed amendment here does not offend the rule. Questions of degree are often involved when cases in the second category are before the Court and, consequently, the broad justice of allowing the amendment will require consideration from the standpoint of any party claiming prejudice or unfairness if the amendment is permitted.
The observations of Kelly J in Golski v Kirk [1987] Aust Torts R 80-095 which appear to confine the rule in Weldon v Neal to "cases in which a new cause of action in a technical sense would be raised by the proposed amendment" are open to question and, in any event, are obiter dicta because the Court in that case concluded that the amendments did set up a new cause of action in a technical sense which, accordingly, should be disallowed on that ground. With this reservation, I am unable to see any great difficulty in stating the modern version of the rule in Weldon v Neal in a form which appears to be supported by most of the cases referred to by counsel, viz:
1 When an amendment is sought which seeks to set up a new cause of action which would be statute barred if made the subject of a fresh proceeding, it should normally be disallowed.
2 If the proposed amendment does not seek to set up a new cause of action, but seeks to set up a fresh set of facts or ideas, or involves a fundamental departure from the existing claim, to allow which would involve prejudice or injustice to the opposing party, which cannot be overcome by an award of costs, an adjournment or other procedural means, it should normally be disallowed.
3 If a proposed amendment offends neither of these principles, it should normally be permitted, upon appropriate terms if necessary.
It seems to me that much of the perceived difficulty which has arisen in respect of these questions in the past has resulted from a tendency for cases falling within the second principle to be dealt with as if they involved a new cause of action properly so called. Perhaps the real problem arises from regarding the rule in Weldon v Neal as embracing both principles (1 and 2) and that in reality the formulation by Barwick CJ in Black v City of South Melbourne (1964) 38 ALJR 309, should be seen as simply stating a broader general principle that fairness in litigation requires the exercise of judicial discretion in allowing or disallowing alterations to pleadings, whether at the interlocutory stage or during trial (see also Anchor Products Ltd v Hedges (1966) 115 CLR 493, Windeyer J at 499).
Although it may be arguable that Underwood J misinterpreted the rule in Weldon v Neal (and I am by no means persuaded that he did), I think that he reached the right conclusion. In prefacing his discussion of cases dealing with the Weldon v Neal rule, his Honour made the important observation that the appellant's counsel:
"… did not invoke any discretionary basis for refusing the application in the sense of delay, embarrassment, lost witnesses etc but simply claimed that the amendments would set up a new cause of action and for that reason should not be permitted."
Insofar as his Honour should have exercised a discretion in reaching the conclusion which he did, I am quite satisfied that any such exercise of discretion must have been exercised in the respondent's favour to permit those amendments which his Honour in fact allowed. Accordingly, I have concluded that the appeal should be dismissed.
File No FCA33/1999
RITCHIE & PARKER ALFRED GREEN & CO
and GEOFFREY CARL WOODBERRY
v RICHARD PHILLIP GORNALLE
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
29 February 2000
The original statement of claim, by which the respondent sued the appellants for damages, was annexed to the writ which was filed on 13 December 1994. It pleaded as follows. On 21 July 1989 the respondent consulted Mr Targett, a partner in the firm of barristers and solicitors, Ritchie & Parker Alfred Green & Co (the first appellant) (par2) and sought legal advice as to his rights and entitlements for property settlement arising from a matrimonial separation (par3). Subsequently, on 20 June 1990, Mr Targett transferred the file to Mr Woodberry (the second appellant) who was an employee of the first appellant (par4). It was an implied term of the appellants' contract with the respondent that the appellants would exercise reasonable care in acting for the respondent (par9). The appellants' "conduct in failing to advise the (respondent) of the matter set out in paragraph 4 hereof" (it is obvious that the reference was intended to be to par5 and not par4) "was a breach of (that) implied term" (par9). It was further pleaded in par6 that "the (appellants') failure to act and advise of the matters referred to in paragraph 4 was negligent". (Once again, it is obvious that the reference was intended to be to par5.) Paragraph 5 particularised, in sub-pars(a) to (i), the failures alleged of the appellants. Included in those failures were five failures to advise certain matters. The other pleaded failures were failures to do other things.
Before itemising the particularised failures which were alleged to constitute breaches of the implied terms and negligence, some background should be explained. Most, if not all, is uncontentious. On 22 July 1988 a decree nisi of dissolution of the marriage of the respondent and his wife became absolute. By virtue of the Family Law Act 1975 (Cth), s44(3), proceedings between the parties with respect to the property of either or both of them, were permitted if instituted either within the period of 12 months after the date on which the decree nisi became absolute or with the leave of the court in which the proceedings were to be instituted. It followed therefore that if the respondent did not institute an application with regard to property by 21 July 1989, he would not have been able to do so without the leave of the relevant court. It was not until the last day, 21 July 1989, that he first consulted the first appellant, according to the statement of claim. It was a requirement of the Family Law Rules (Cth) O8, r7(1), that an applicant who filed an application had to file and serve with the application an affidavit which (inter alia) set out the facts on which the court would be asked to make the orders sought. It was a requirement of O18, r5(2), that unless a court otherwise ordered, a person was not to serve a document more than 12 months after it was filed.
The respondent asserts the following additional facts. On 21 July 1989, being the day upon which he first instructed the first appellant to act for him, the firm lodged or filed in the Family Court an application for property on the respondent's behalf but the affidavit in support, which was required by O8, r7(1), was not lodged or filed until on or about 1 September 1989. Further, the application was not served on the respondent's wife within the period of 12 months required by O18, r5(2), being served on her on about 17 December 1990. On 11 January 1991 the first appellant on behalf of the respondent, filed an application to the Family Court seeking an order that the time allowed for service of the application, which was lodged or filed on 21 July 1989, be extended for 150 days and that pursuant to O18, r3(2) the service of the original application on 17 December 1990 be deemed to be good service. On 13 February 1991 the first appellant filed on behalf of the respondent a further application to the Family Court seeking (inter alia) to amend the application filed on 11 January 1991 to include an application under the Family Law Act, s44(3), for leave to issue proceedings for property settlement out of time and seeking an order for property settlement including an order that the respondent's wife pay to him $150,000. The applications came before Butler J in the Family Court on 13 May 1992. The respondent asserts that on that occasion, acting on advice from the appellants and counsel instructed by them, he applied for and was granted leave to withdraw so much of the application filed on 13 February 1991 as sought leave under s44(3) for proceedings for a property settlement to be issued out of time. Subsequently on 27 October 1992, Butler J determined that the original application, which was lodged at the Family Court registry on 21 July 1989, was not deemed to have been filed until 1 September 1989, being the date upon which the affidavit in support of it was filed. His Honour concluded that the application was therefore out of time, because it was not filed within the 12 month time limit of s44(3), and he ordered that the application for a property settlement (deemed to have been) filed on 1 September 1989, together with supporting affidavits, be struck out. At some time the application filed on 11 January 1991 seeking an extension of time for service was also struck out. Eventually, on or about 22 December 1992, Butler J ordered that the respondent pay his ex-wife's costs of certain of the proceedings.
The failures which were particularised in the original statement of claim par5 may be conveniently grouped in the following way:
·failure to ensure that a property application was effectively instituted on 21 July 1989 (subpars(a) and (b))
·failure to advise that Butler J erred when determining on 27 October 1992 to strike out the property application and that the respondent should appeal from that determination, the error of Butler J being in concluding that the property application was not effectively instituted on 21 July 1989 (subpars(d) and (e))
·failure to apply to reinstate the property application or to advise the respondent to do so (subpar(f))
·failure to apply after 27 October 1992 for leave to institute fresh property proceedings or to advise the respondent to do so (subpar(g))
·failure to advise the respondent (in 1989 or 1990?) of the risks involved in delaying service of the property application (subpar(c))
·failure to do the professional work entrusted to them by the respondent, or which they had undertaken to do, within a reasonable time (subpars(h) and (i)). (The professional work entrusted to the appellants or which they had undertaken to do, was not particularised).
On 11 March 1999 the respondent filed an application to amend the statement of claim. On 19 April 1999 an order was made giving him leave to amend. The amendments included many of the assertions of fact to which I have referred. They also included the following paragraphs:
"4At the first consultation" on 21 July 1989 "the Plaintiff engaged RPAG & Co as his barristers and solicitors to prepare and file the Application, arrange for its prosecution and to act as his solicitors in respect of the Application and its completion ('the retainer').
5It was an implied term of the retainer that RPAG & Co would exercise a reasonable degree of care, skill and competence and would act without negligence.
6Further, it was an implied term of the retainer that any solicitor employed or engaged by RPAG & Co would exercise a reasonable degree [sic] care, skill and competence and would act without negligence.
7Alternatively, RPAG & Co and the Fifth Named Defendant owed the Plaintiff a duty of care to exercise a reasonable degree of professional skill, care and competence and to act without negligence in respect of the matters, the subject of the retainer.
…
22In breach of the implied terms or alternatively the duty, the Defendants were negligent."
Underwood J allowed those and other amendments including 19 particulars of negligence under par22. The appellants have appealed from the order giving leave to amend, but have limited their appeal to the granting of leave with respect to subpars22(g), (h), (i), (j) and (s) of the particulars, so that relevantly, the appeal is concerned with the following:
"22 In breach of the implied terms or alternatively the duty, the Defendants were negligent.
PARTICULARS
The Defendants were negligent in that it, he or they:-
…
g)advised the Plaintiff to withdraw his Application for leave under Section 44(3) of the Act;
h)caused or permitted the Plaintiff's Application for leave under Section 44(3) of the Act to be withdrawn;
i)failed to provide any advice to the Plaintiff prior to his Application for leave under Section 44(3) being withdrawn as to the effects of the Application being withdrawn and its impact upon his Applications(s);
j)failed to consult with the Plaintiff about the Application for leave under Section 44(3) of the Act being withdrawn before his agreement to it being withdrawn;
…
s)prior to 27 October 1992 failed to file an Application for property settlement to seek an extension of time for filing such Application and to pursue such Application to its conclusion."
Sub-paragraphs (g), (h), (i) and (j) all concern the withdrawal, on 13 May 1992, of the respondent's application under the Family Law Act, s44(3), which was filed on 13 February 1991 and which sought leave to institute a property application after the expiration of 12 months after the date of the decree absolute. Breaches of contract and negligence associated with that withdrawal were in no sense raised by the original statement of claim. Sub-paragraph (s) also raised for the first time matters which were not pleaded in the original statement of claim. Sub-paragraph (s) may be regarded as an allegation that in breach of the implied terms or duty, and negligently, the appellants, having failed to ensure that a property application was effectively instituted on 21 July 1989, thereafter until immediately prior to 27 October 1992, failed to file an application for property settlement and an application for an extension of time in which to do so and to pursue the application for property settlement to its conclusion.
So far as concerns this case, the Limitation Act 1974, s4(1), prohibited the respondent from bringing actions against the appellants after the expiration of six years from the date on which the causes of action accrued, if the causes of action were founded on simple contract or tort, as was the case here. It would certainly have been the case that if an action had never been commenced by the respondent he would have been barred by the Act from suing the appellants, either for negligence or breach of contract as he now seeks to do by the amendments, at the time when he in fact made the application to amend his statement of claim. So far as concerns the circumstances of this case, the Act makes no provision for an extension of time to be granted on application made.
The relevant rule of practice which concerns applications for amendments to pleadings, is to the found in the Rules of Court, O31, r1. It provides:
"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 that in a particular case it might be just to allow a plaintiff to commence a new action or to amend his statement of claim in an existing action to allow the making of a claim founded on a cause of action in tort or contact outside the six year limitation period, the law laid down by the Limitation Act 1974 applies. The fact that a claim was not instituted by action within six years of the cause of action arising is deemed, in the eyes of Parliament, to make it unjust that the claim should be allowed to be pursued.
In the case of an amendment to a statement of claim, the amendment takes effect from the date of the original statement of claim. It follows that if a plaintiff is given leave to amend his statement of claim by adding a new cause of action outside the limitation period prescribed by statute, the amendment will be retrospectively effective from the date of the original pleading (in this case the date of the writ) and a defendant may thereby be prevented from pleading the statutory limitation period by way of defence. It is for this reason that Weldon v Neal (1887) 19 QBD 394 was decided in the way it was. That case is regarded as the foundation of a settled rule of practice that amendments setting up a cause of action should not be allowed, because of injustice, if they would take away from the opposite party a defence under the statute.
Since Weldon v Neal judges have grappled with the problem of defining, for the purposes of its rule, what a new cause of action is, but no definitive answer has been found. Much of the judicial dicta needs to be read in the context of the facts and circumstances of the particular case. It is often much easier to know a new cause of action when one sees it than to explain why.
At first instance in this case, Underwood J said that in the context of the case, he directed himself as to the meaning of "cause of action" in accordance with Black v City of South Melbourne (1965) 38 ALJR 309 and Renowden v McMullin (1970) 123 CLR 584 and that he followed his own statement of the law in Devonshire Managements v Australia and New Zealand Banking Group Ltd unreported B3/1992. With the utmost of respect, however, there is almost nothing to be found in any of those cases which provides a clear explanation of the meaning of the term "cause of action" which is of assistance in the circumstances of this case. In Black v City of South Melbourne the only judgment to touch on the rule in Weldon v Neal was that of Barwick CJ and his Honour only mentioned it in a brief obiter dictum at 310 in which he made no attempt to define the expression, merely stating his opinion that the amendments in question did not involve a new cause of action. The facts and circumstances of that case were so different from those of this case that the dictum is of no assistance. Renowden v McMullin is also of no assistance in the context of this case, so far as concerns the question of what is a new cause of action. It was a case of a new cause of action "in a technical sense", although that term was not used in the judgments. What I am referring to is the circumstance in that case that the statement of claim pleaded causes of action based on breaches of statutory duty and negligence and the proposed amendments sought to plead the case further on the basis of breach of contract. I use the expression "a new cause of action in the technical sense" as bearing the meaning given to it by Susan Campbell in her article Amendments and Limitations; The Rule in Weldon v Neal (1980) 54 ALJ 643 at 645, which is that of a new cause of action involving a change in the legal categorisation of the plaintiff's claim. The majority in the High Court in Renowden v McMullin held that the rule in Weldon v Neal would be breached if the amendments were allowed. Owen J, with whom the other majority judges agreed, dealt with the matter at 608, and made no attempt to define what amounts to a new cause of action for the purposes of the rule. All his Honour said, and all he needed to say for the purposes of the case, was that if an amendment "raises a cause of action of a kind different to that which is alleged in the statement of claim" the rule will apply. His Honour made no reference to circumstances, such as those which arise in this case, where it is sought to plead new facts as a basis for the claim and not a new cause of action of a different kind than one originally pleaded, for example breach of contract in addition to already pleaded negligence and breach of statutory duty.
There is also little assistance to be gained, for the purposes of this case, from what was said by Underwood J in Devonshire Managements v Australia and New Zealand Banking Group Ltd (supra). Indeed I can find nothing in the judgment in that case which defined a new cause of action for the purposes of the rule in Weldon v Neal.
The reasons why the learned judge at first instance in this case allowed all of the amendments are to be found in the following passage of his Honour's judgment:
"Mr Tree was kind enough to refer me to the Federal Full Court case of Goiski [sic] v Kirk (1987) Aust Torts Reports 80-095. In that case, Kelly J analysed the authorities much in the same way as I did in the Devonshire Management case and came to the same conclusion as I did, and added at 68,580 - 68,581:
'In my opinion, a plaintiff should not be allowed to introduce new claims by amendment which in substance amount to the bringing of a new action for claims already barred by statute. However, where the proposed amendments do not change the cause of action but do no more than particularise the facts by which the respondent proposes to sustain it even though the facts sought to be brought forward under the amendment are quite different from those originally alleged, amendment will be allowed.' [Emphasis added.]
That passage reflects, as I understand the issue, the rationale behind Renowden v McMullen [sic] and Black v City of Melbourne, namely that the new cause of action referred to in Weldon v Neal is a reference, in a technical sense, to a new cause of action and is not a reference to new facts to sustain the pleaded cause of action even if those facts raise quite a different factual case from that pleaded. So, there is noting in proposed par22 that should not be allowed on the basis of an infringement of the Weldon v Neal rule."
The passage cited by his Honour from Kelly J in Golski v Kirk is better understood if read in the light of what Kelly J next said:
"In reaching this conclusion I consider it unnecessary to give any further consideration to the question whether a new cause of action depends on a substratum of facts freshly pleaded, on a new claim in law or on a combination of both. In my opinion the applicable considerations are those in the two propositions set out above."
In light of that, I do not understand, with the utmost of respect, how the learned judge at first instance here came to the conclusion that the passage he cited from Kelly J supported his conclusion that it is only new causes of action in the technical sense which fall within the rule in Weldon v Neal. The authorities do not bear out such a view.
Plainly the prohibition of the rule in Weldon v Neal extends further than changes in the legal categorisation of a plaintiff's claim. Reflection on a few examples are sufficient to demonstrate that. An action for damages brought by an employee against his employer for negligently caused injuries suffered in an accident on a particular day at work would not normally prevent the statutory limitation period from operating between the same parties with respect to a different accident on another day in the course of the same employment, notwithstanding that the pleading of the duty of care might be the same. The same proposition would apply if it was alleged that both accidents were caused by a breach, on the employer's part, of the same term of the contract of employment, say one requiring the employer to take reasonable care for the safety of the employee or one requiring the employer to provide a safe system of work.
The reported cases show it has often proved difficult to determine whether a proposed amendment seeks to set up a new cause of action. In Patterson v Richards [1963] VR 179 at 187, Sholl J pointed out "that obviously every fact is not a separate cause of action, and to plead one or more new facts by way of amendment (especially of mere particulars) is therefore not necessarily to rely on a new cause of action at all". What is prohibited by the rule in Weldon v Neal, according to Sholl J, is to amend or alter out of time the "cause of action", or "claim", or "case", "in such a substantial degree as to make it amount to or include a substantially different or a fresh cause of action or claim or case". His Honour referred to the judgment of Lord Wright MR in Marshall v London Passenger Transport Board [1936] 3 All ER 83 at 87, as the leading authority. In that case at 88, his Lordship rejected a proposed amendment because (inter alia) "it involves … a quite different set of ideas, quite a different allegation of fact … In my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries".
In Smith v Wilkins and Davies Construction Co Ltd [1958] NZLR 958 at 961 McCarthy J posed this question:
"In other words, is it something essentially different from that which was pleaded earlier? Such a change in character may be brought about in my view, by alterations in matters of law or of fact, or both. Alterations of fact could possibly be so vital and important as by themselves to set up a new head of claim. On the other hand, more often alterations of fact do not affect the essence of the case brought against the defendant."
As McCarthy J went on to say, "in each case it must, I consider, be a question of degree", a view with which I respectfully agree, as did Sholl J in Patterson v Richards at 188.
It was suggested by Sholl J at first instance in Harris v Raggatt [1965] VR 779 at 785, that part of the test is whether it would be unfair and unjust to the defendant to allow the amendment. With respect I disagree. Unfairness and injustice is presumed in a case where a plaintiff seeks to raise a new cause of action outside the period of limitations imposed by statute. As was said by Kelly J in Golski v Kirk (1987) 72 ALR 443 at 451, "a plaintiff should not be allowed to introduce new claims by amendment which in substance amount to the bringing of a new action for claims already barred by statute. However, where the proposed amendments do not change the cause of action but do no more than particularise the facts by which the respondent proposes to sustain it even though the facts sought to be brought forward under the amendment are quite different from those originally alleged, amendment will be allowed." In the same case, Beaumont J said at 455, "the test is whether the amendment introduces a new cause of action or merely gives further particulars of a cause of action already sued on". With those statements the Full Court expressed its agreement in Metropolitan Transport Trust v Mayne unreported A43/1990. See also Wright J in the Full Court in Tasmanian Mines Ltd v Merrywood Coal Company Pty Ltd A97/1996 at 1, with whom Cox CJ agreed, and the judgment of Cox CJ in Towns v Que River Mining Pty Ltd A75/1995 at pages 3 - 5.
Applying the principles to which I have referred, the addition of subpars(g), (h), (i) and (j) to the particulars of the proposed par22 would infringe the prohibition of the rule in Weldon v Neal. Nothing in the original statement of claim raised in any way a claim, whether based on negligence or breach of contract, for what the defendants did, or failed to do, concerning the withdrawal, on 13 May 1992, of the application which was filed on 13 February 1991 and which sought leave to institute a property application after the expiration of 12 months after the date of a decree absolute. What is sought to be alleged in those subparagraphs is much different to what was originally claimed by the respondent. The acts and failures and the material dates are different. The assessment of damages arising out of the subparagraphs will be different, involving an assessment of the loss of a chance to litigate for which no claim was previously made. Involved will be quite new considerations, quite new sets of facts and quite new causes of damages. I have come to the same conclusion with respect to subpar(s).
I would therefore allow the appeal to the extent argued by counsel for the appellant, that is to say with respect to subpars(g), (h), (i), (j) and (s) of par 22 of the proposed amended statement of claim.
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