ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd v Hetherington [2001] WASCA 235

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127

Dye v Griffin Coal Mining Co Pty Ltd [1998] WASCA 184; (1998) 19 WAR 431

Morgan v Banning (1999) 20 WAR 474

1. In this action on application of the defendant I delivered a decision dated 23 July 2019 in which I struck out the endorsement of claim on the writ which had been filed. The terms of the endorsement were:

The plaintiff's claim is for damages for losses caused to the Plaintiff in the form of loss opportunity and/or loss of chance as a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents on or about 10 April 2013.

1. I struck that endorsement out essentially on the basis that it was devoid of any useful facts and completely failed to the achieve the objectives of an endorsement pursuant to the Rules of the Supreme Court 1971 (WA) which require the writ to be endorsed with the concise statement of the nature of the claim made and the relief or remedy required in the action.
2. As can be seen from the original endorsement it failed to satisfy almost all of those requirements and to the extent that a date was referred to, the evidence demonstrated that date was clearly wrong. In fact the correct date to which the plaintiff now seeks to amend the endorsement was 13 October 2012 rather than 10 April 2013.
3. For the reasons expressed by Justices Wheeler and McLure in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd v Hetherington [2001] WASCA 235, I formed the view that the endorsement on the writ as it then was, utterly failed to achieve the purposes for which an endorsement is required.
4. By chamber summons filed by the plaintiff on 17 September 2019, the plaintiff seeks to substitute an amended endorsement of claim intended to cure the defects which I found in the original. That application is opposed and the matter was argued before me on 13 November 2019.
5. The central issue with which this matter is concerned is whether the proposed amendment introduces a new cause of action. In that regard the proposed amended endorsement of claim is as follows:

THE PLAINTIFFS CLAIM is for damages for losses caused to the Plaintiff in the form of loss of opportunity and/or loss of chance as a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents in the period leading up to and on or about 13 October 2012.

The Plaintiff's claim is in relation to the legal advice and representation that the Defendant, its servants and/or agents provided the Plaintiff, and the Defendant's failure to properly advise the Plaintiff of his common law rights against his former employer. Swan Transit, and/or the Defendant's failure to properly protect the Plaintiff's common law rights against his former employer, Swan Transit.

As a result of the negligence and/or breach of contract and/or breach of statutory duty by the Defendant, its servants and/or agents, the Plaintiff has lost the opportunity and/or chance to commence a common law claim in damages against his former employer, Swan Transit, and has incurred loss and damages given such a claim had reasonable prospects of success.

AND THE PLAINTIFF CLAIMS damages and interest on the whole or part of the damages awarded to the Plaintiff at such rate and for such period as this Honourable Court shall think fit under Section 32 of the Supreme Court Act, 1935.

1. The relevant provision of the Rules of the Supreme Court is contained in O 21 r 5(2) which is in the following terms:
   1. Amending writ or pleading with leave

(2) The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.

1. The case which is of most use in this discussion is Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127. At the time the Belgravia Nominees Pty Ltd v Lowe Pty Ltd case was decided O 25 r 5 was in rather different terms to that existing today and at that time the order was in the following terms:

Order 21 r 5

Amending writ or pleading with leave

(a) Order 18 rules 6, 7 and 8; and

(b) Order 20 rule 19(2) to (5); and

the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that subrule if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

(5) An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

1. Nonetheless many of the matters which required consideration under the old rule are still relevant to the rule as it is presently constituted, in particular, I refer to the passage in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [30] which refers to and in part cites Owen J in the case of Dye v Griffin Coal Mining Co Pty Ltd [1998] WASCA 184; (1998) 19 WAR 431 as follows:

Owen J, with whom the other members of the court agreed, observed that a 'cause of action' is the fact or combination of facts which gives rise to a right to sue'. He also observed that 'questions such as whether a claim is "new" or whether it arises substantially from the same facts are largely and often questions of degree', often resolved as 'matter[s] of impression'. In his view, the allegations of negligence relating to the earlier period involved the addition of a fresh cause of action which did not arise from the same or substantially the same facts as those alleged in the original writ in the statement of claim.

Owen J then addressed a submission that O 21 r 5(1) conferred a general discretion upon the court to permit the addition of a new cause of action outside the relevant limitation period. In that context he referred to the rule in Weldon v Neal, and the divergent lines of authority dealing with the operation of that rule in England and Australia. In that context, Owen J observed:

In light of the authorities, and as a matter of construction, I think the effect of the rules is that the rule in Weldon v Neal continues in force in truncated form, being qualified only to the extent that O 21 r 5 allows some amendments out of time for certain limited purposes. Relevantly, when confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute barred, the court has a discretion to allow the amendment under O 21 r 5(5) if the conditions set out in that rule are satisfied. The general discretion in O 21 r 5(1) is limited to that extent. It seems to me, therefore, that once the trial judge had decided that the amendments did not come within O 21 r 5(5), that was an end to the matter. His Honour was correct in deciding that O 21 r 5(1) does not confer on the court a general and further discretion to permit amendment despite the expiry of the relevant limitation period.

1. It is notable, and important that the Court of Appeal in both the Dye v Griffin Coal Mining Co Pty Ltd case and the Belgravia Nominees Pty Ltd accepted that O 25 r 5(1) does not confer upon the court a general and further discretion to admit an amendment despite the expiry of a relevant limitation period.
2. That point is important as is made clear in [34] which quotes a passage from the judgment of Wheeler J in Morgan v Banning (1999) 20 WAR 474 in which her Honour said:

If the defective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time-barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time-barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule or 'relation back' or otherwise.

1. The court went on to consider a further case ABB Services Pty Ltd v Hitherington which it led it to declare at [43]:

So, consistently with Morgan v Banning, ABB v Hetherington stands for the proposition that if an application to amend does not add a new cause of action in the sense described in the cases, no limitation issue arises, and the general power conferred by O 21 r 5(1) can be exercised. On the other hand, if the amendment does add a new cause of action after the time specified for the commencement of that action in a limitation provision, no doctrine of relation back or rule of court can preclude the defendant relying upon a limitation defence, which should ordinarily be determined at trial.

1. In my view, the matter distils down to this simple proposition, if the proposed amendment to the endorsement is properly characterised as introducing a new cause of action and, if the limitation period in which such an action may be commenced has expired, the court should not grant the amendment.
2. There are of course circumstances which have been explained in the cases where the position is not sufficiently clear as to whether a limitation defence is available or not and, in such cases, the matter should be left to the trial judge determine with a fuller understanding of the facts of the case.
3. It is argued by the respondent/defendant that this is a case which justifies the refusal of the application to amend and in essence that argument focusses on the deficiencies of the endorsement of claim as originally presented to this court.
4. The defendant argues that the original endorsement was so deficient and inaccurate that it did not identify any cause of action or at least none that is consistent with the cause of action now intended to be pursued.
5. Flowing from that argument it is argued that it is a necessary outcome of that analysis that there being no other cause action articulated in this writ whatever is proposed by way of amendment must be a new cause of action since there was nothing to replace.
6. The matter is an interesting one. It seems to me that if I rule against the respondent/defendant I am effectively saying that a party who files a hopelessly inadequate endorsement of claim is thereby advantaged because he or she may then put together any cause of action which they choose to follow without having to concern themselves about whether a limitation period may or may not have expired because the inadequacies of the endorsement should be interpreted as the breadth of the endorsement enabling a whole range of possibilities by way of amendment.
7. The proposition is not one which I feel is attractive. Whatever the limitation date may be, whether it be a 2012 date or a 2013 date, the amendments come more than six years after either.
8. If the endorsement is characterised as introducing a new cause of action then it is clear that the defendant has a limitation defence which cannot be defeated. The only hope for the plaintiff is that cause of action described in the proposed amended endorsement should be characterised as an extension or particularisation of the original claim as expressed on the endorsement.
9. I do not think that is possible. The original endorsement was so deficient that what is now proposed cannot in my view be characterised as anything other than a new action.
10. Accordingly, I am of the view that the proposed amendment should not be allowed. In the circumstances it would perhaps be desirable to strike out the writ but that is a matter upon which I will allow the parties an opportunity to comment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.