Rynne v Green and Green
[2000] QSC 384
•26 October 2000
SUPREME COURT OF QUEENSLAND
CITATION: Rynne v Green and Green [2000] QSC 384 PARTIES: PATRICIA ANN RYNNE
(Applicant)
v
ROGER GREEN
(First Respondent)
DIANNE GREEN
(Second Respondent)FILE NO/S: Application No 90 of 1998 DIVISION: Trial PROCEEDING: Civil Application ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON: 26 October 2000 DELIVERED AT: Cairns HEARING DATE: 25 July 2000 JUDGE: Jones J ORDER: 1. The applicant is given leave to amend its Writ of Summons and Statement of Claim in accordance with Exhibits “O” and “P” to the affidavit of Bruce Kay Gillan sworn on 27 June 2000.
2. The respondents have leave to amend their defence accordingly and are allowed 28 days from receipt of the amended Statement of Claim to effect this.
3. The costs of and incidental to this application are costs in the cause.
COUNSEL: Mr M. Pope for the applicant
Ms Y. McLaughlin (not of counsel) for the respondentsSOLICITORS: Bruce K Gillan for the applicant
MacDonnells (as town agents for Roberts Nehmer McKee) for the respondents
JONES J: This is an application by Patricia Ann Rynne (hereinafter “the applicant”) for leave to amend her Writ and Statement of Claim. Roger Green and Dianne Green (hereinafter “the respondents”) do not oppose the substantive application [1] and at the conclusion of the oral hearing, I intimated to the parties that I would grant leave to amend and provide my reasons for so doing subsequently. Those reasons appear herein.
[1] Transcript 4/33
Background
The applicant pleads what is essentially an occupier’s liability claim in her Statement of Claim delivered 16 April 1999. It relevantly contains the following:
“2. At all times material to this action, the First and Second Defendants were the occupiers of premises situated at 138 The Esplanade, Innisfail “the residence”.
3. For approximately two years prior to 1991, the Plaintiff cleaned the residence at 138 The Esplanade, Innisfail, for the Second Defendant.
…
5. Towards the end of October 1995, the Second Defendant to the knowledge of the First Defendant asked the Plaintiff if she would clean the residence once each week for a two week period when the Second Defendant was going to be absent in Brisbane.
6. There was no offer of payment by the Second Defendant for the Plaintiff’s services.
7. The Plaintiff agreed to clean the house for the Second Defendant on the two occasions as requested.
8. On the second occasion, whilst the Plaintiff was traversing from inside the house onto the balcony, her left foot caught in a sliding door track, causing her to trip and fall on the balcony, thereby causing the Plaintiff to suffer injury, loss and damage.” [2]
[2] Plaintiff’s Statement of Claim delivered 16 April 1999, Exhibit “A” to the Affidavit of Bruce Kay Gillan sworn on 27 June 2000.
The applicant is seeking leave to amend her Statement of Claim following correspondence between her solicitors and the then solicitors for WorkCover Queensland. Wilson Ryan & Grose wrote to the applicant’s solicitors on 29 September 1999 to “advise that WorkCover has decided to indemnify the Defendant in respect to this claim.” [3] The applicant, therefore, wishes to include provision for an alleged breach of contract and breach of statutory duty in her action against the respondents.
[3] Exhibit “J” to the Affidavit of Bruce Kay Gillan sworn on 27 June 2000.
Reasons for allowing the amendment
The amendment sought by the applicant is, inter alia, the inclusion of the following in her Statement of Claim:
“Alternatively-
7A. At all times material to this action the plaintiff was an employee of the Defendants.
7B. It was an implied term of the contract of employment that the Defendants would -
(i) provide the Plaintiff with a safe place of work.
(ii) comply with the provisions of the Workplace Health and Safety Act so far as they were applicable to the Plaintiff and Defendants’ relationship of employee and employer.” [4]
[4] Proposed Amended Statement of Claim, Exhibit “P” to the Affidavit of Bruce Kay Gillan sworn on 27 June 2000.
To allow such an amendment would, of course, be both allowing a new cause of action to be pleaded and allowing an amendment to be made after the expiration of a limitation period. [5] The relevant provisions in the Uniform Civil Procedure Rules (hereinafter the “UCPR”) are:
“Power to amend
375.(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or a document in a proceeding in the way and on the conditions the court considers appropriate.
(2) Subject to rule 376, the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
[5] The period of limitation expired in October 1998.
Amendment after limitation period
376.(1) This rule applies if, in a proceeding, an application for leave to make an amendment is made after the end of a relevant period of limitation current at the date the proceeding was started.
…
(4) The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if-
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.”
These rules provide the Court with a very broad discretion to allow amendments such as those being sought here. The applicant requests that in granting leave to amend the Statement of Claim I take into account that the new cause of action arises out of precisely the same facts as the old cause of action and that there would be no prejudice to WorkCover as they have essentially volunteered an indication that they would indemnify the respondents. It is, therefore, appropriate that leave be granted to the applicant to amend its Statement of Claim in the terms proposed.
It follows that the respondents should have leave to amend their defence accordingly and I will allow 28 days from receipt of the amended pleadings for both the respondents and WorkCover Queensland to effect this.
Service on WorkCover
The question was raised by solicitors appearing on behalf of the respondents whether there can be compliance with the statutory requirement for giving notice to WorkCover pursuant to s.185 of the Workers’ Compensation Act 1990. The suggestion was that the service referred to in the section was the originating process and in this case that Writ of Summons is now stale.
Section 185 provides:
Notice to board of claims for damages
185.(1) When in court proceedings relating to an injury in respect of which compensation under this Act is payable a claim for damages in respect of the injury is made against an employer who -
(a) is indemnified by the board; or
(b) is required by this Act to be indemnified by the board;
under a policy against liability for such damages, the claimant -
(c) must serve on the board a copy of the writ or other process by which the claim is made; and
(d) before any further step is taken by the claimant in the proceedings, must file in the court in the proceedings an affidavit of such service.
(2) Service on the board under subsection (1) must be effected no later than 28 days following service of the writ or other process by which the claim is made on the other party or parties to the proceedings.
This point was, in Gillies v Dibbets & Anor, [6] considered by Williams J (though not germane to his decision). He was there dealing with a case where the original process ought to have been served on the predecessor of WorkCover and since it had not been, whether the fact that all the following steps were a nullity could have been regularised. It was necessary for him also to consider the impact of r.24 of the UCPR in the renewal of writs prior to effecting the statutory required service on WorkCover. However, in cases where WorkCover’s involvement arises pursuant to an amendment the circumstances are different. His Honour said:
“Though the point was not argued before me I am inclined to the view that ‘proceedings’ in s.185 was limited to the proceedings by which a claim for damages in respect of injury is made against an employer. In other words where, as here, such a claim is joined with an occupier’s liability claim, the stay would not operate with respect to that other claim. Further, though the first defendants submitted that the stay should operate with respect to the claim against them as alleged employer that may not be so because with respect to that proceeding the Board was served.” [7]
[6] [1999] QSC 161
[7]ibid. at para. 45
I agree with and adopt the view expressed by His Honour in this passage.
In this instance, the claim was proceeding as a claim in occupier’s liability until leave is granted to raise circumstances which invite an involvement by WorkCover. It seems to me that there will be compliance with s.185 of the Workers’ Compensation Act once the amended proceedings are served and an affidavit of service filed in accordance with the terms of that section.
Costs
At the hearing of this matter, the parties consented orally to the costs of and incidental to this application being costs in the cause. [8]
[8] Transcript 6/30-39
I am satisfied that that is the proper course with regards to costs and will make orders accordingly.
Orders
My orders therefore will be:
1. The applicant is given leave to amend its Writ of Summons and Statement of Claim in accordance with Exhibits “O” and “P” to the affidavit of Bruce Kay Gillan sworn on 27 June 2000.
2. The respondents have leave to amend their defence accordingly and I will allow 28 days from receipt of the amended Statement of Claim for both the respondents and WorkCover Queensland to effect this.
3. The costs of and incidental to this application are costs in the cause.
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