PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COURT SUPERVISION – AMENDMENT – ORIGINATING
PROCESS, PLEADINGS ETC
– where the plaintiff has applied under r 376(4) UCPR for leave to file an
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COURT SUPERVISION – AMENDMENT – ORIGINATINGPROCESS, PLEADINGS ETC– where the plaintiff has applied under r 376(4) UCPR for leave to file anamended claim and furtheramended statement of claim – where theapplication was opposed by the second defendant and the third defendant –
where
the plaintiff’s proposed amendments included new causes of action
– whether the new causes of action arise “out
of the same facts or
substantially the same facts as a cause of action for which relief has already
been claimed” – whether
it is appropriate to grant leave to make the
amendments
Competition and Consumer Act 2010 (Cth) Schedule 2, s 236,
s 237
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376
Aon Risk Services Australia Ltd v Australian National University
Menegazzo v Pricewaterhousecoopers (a firm) [2016] QSC
94, applied
Paul v Westpac Banking Corporation [2017] 2 Qd R 96
[2016] QCA
252, cited
Thomas v State of Queensland [2001] QCA
336, cited
Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR
206
[2011] NSWSC 433, cited
Wolfe v State of Queensland [2009] 1 Qd R
97
[2008]
QCA 113, considered
Zonebar Pty Limited v Global Management Corporation Pty Ltd [2009] QCA
121, considered
Judgment (98 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC - where the plaintiff has applied under r 376(4) UCPR for leave to file an amended claim and further amended statement of claim - where the application was opposed by the second defendant and the third defendant - where the plaintiff's proposed amendments included new causes of action - whether the new causes of action arise "out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed" - whether it is appropriate to grant leave to make the amendments
Zonebar Pty Limited v Global Management Corporation Pty Ltd[2009] QCA 121, considered
[17]
[1] The plaintiff ("Devine") has applied under r 376(4) UCPR[1] for leave to file an amended claim and further amended statement of claim (the "proposed pleading"). The application was opposed by the second defendant ("Odyssey") and the third defendant ("Construc"). The first defendant ("Heinrich") did not oppose the application.
(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
[19]
(4) The court may give leave to make an amendment to include a new cause of action only if -
[20]
(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."
[21]
[3] No party contended that r 376(1) is not engaged.[2] Devine conceded that its proposed amendments include new causes of action. The issues for determination are whether the new causes of action arise "out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed" and it is otherwise "appropriate" to grant leave to make the amendments.
[4] The inquiry as to whether a new cause of action arises out of the same facts or substantially the same facts is directed to ascertaining whether the factual basis for the new cause of action is substantially different from that previously pleaded. The inquiry requires an understanding of the substantive facts underpinning the existing and the new causes of action.[3] The existing and proposed pleaded facts will form the basis for the judgment on the question of degree posed by the word "substantially". [4]
[22]
[5] The following is a sufficiently detailed summary of the facts alleged by the existing pleading.
[6] On 6 June 2014 Devine, as contractor, and Walker Milton Pty Ltd, as principal, entered into a contract (the "Head Contract") pursuant to which Devine agreed to perform work which included the design and construction of two residential towers, Tower 1 and Tower 2 (the "Project").
[7] In around July 2014, pursuant to an agreement, Devine engaged Odyssey, structural and civil engineers, to provide structural engineering works for the Project. The structural engineering works comprised design development, construction documentation and construction phase consultation. Those works were to be performed with due care and skill, comply with the Australian Standards, be fit for purpose and of merchantable quality. Relevantly, the works included the design of the concrete slabs for Tower 2. AS 1170 and AS 3600 imposed certain design requirements for the concrete slabs in relation to acceptable short term and total deflection. Odyssey authored and issued certain design drawings between on or about 26 September 2014 and on or about 6 March 2015.
[8] On 25 November 2014, Devine and Heinrich entered a formwork subcontract (the "Formwork Subcontract") pursuant to which Heinrich, an installer and supplier of formwork and back propping, was engaged to design, install and strip the formwork and back propping sequence to be used on the Project. Heinrich subcontracted to Construc the design of the formwork and back propping sequence. Construc authored and issued certain design drawings to Heinrich.
[9] Between 26 August 2015 and 15 October 2015, concrete was poured for the slabs, and reinforcement was installed, between levels 7 to 15 of Tower 2. Between August and November 2015, Henrich supplied, installed and stripped the formwork and back propping between levels 7 to 12 of Tower 2. On 9 November 2015, deflection was identified on all slabs between levels 7 to 12 of Tower 2. A survey conducted in January 2016, identified slab deflection in levels 7 to 15 of Tower 2 (the "Slab Deflection"). The Slab Deflection caused Tower 2 to be non-compliant with AS 1170 and AS 3600, not fit for purpose, not of merchantable quality or compliant with the Head Contract. Devine undertook rectification work. The Slab Deflection and the rectification work caused 14 weeks of critical delay to the completion of Tower 2 (the "Delay"). By reason of the Delay, Devine incurred increased onsite and corporate overheads and liquidated damages pursuant to the Head Contract. Devine seeks to recover from Heinrich, Odyssey and/or Construc, its loss and damage caused by the Slab Deflection, including the cost of the rectification work and liquidated damages. The total amount of Devine's loss and damage caused by the Slab Deflection is $21,067,850.44 ("Devine's Loss and Damage").
[23]
(a) the mass of S0 plus the formwork and back props down to S3 and the construction live load on S0 was spread over the lower slabs, S1, S2 and S3 to utilise the reserve load capacity of those three slabs to support S0 until it could support itself;
(b) once the concrete of S0 had reached the strength of 25MPa, the formwork for S1 could be removed and replaced with back propping, with props located 1.8 metres apart in both directions;
(c) the maximum amount of formwork that could be removed at any one time whilst back propping was installed was limited such that the spacing between formwork support, known as "H Frames", did not exceed 4 metres (the "Spacing Requirement");
(d) Drawing 7 depicted individual bearers and joists spanning the full length of the H Frames;
(e) the bearers and joists as depicted by Drawing 7 were too long to allow for the removal of half of the H Frames at one time and meant that compliance with the Spacing Requirement during stripping of the formwork, without modification to Drawing 7, was problematic, if not impossible;
(f) further, Drawing 8 inherently required that each of S1, S2 and S3 would carry or support their own weight, plus one third of the weight of S0;
[24]
[13] During construction, Heinrich failed to comply with the Spacing Requirement and did not remove all temporary support from slabs answering the description S1, S2 and S3 once the slab had achieved adequate strength. Those acts were in breach of the Formwork Subcontract and Heinrich's duty of care owed to Devine to take all reasonable steps to ensure that the formwork and back propping sequence adopted during construction was in accordance with Construc's design and to advise Devine and/or Construc of any obvious difficulty with achieving the Spacing Requirement without modification of Drawing 7. Heinrich's breaches of contract and duty caused the Slab Deflection and Heinrich is liable for Devine's Loss and Damage.
[14] As regards Construc, Construc knew or ought to have known that the Spacing Requirement would be problematic or impossible to achieve without modification to Drawing 7. Further, Construc's design as contained in Drawing 8 did not expressly state or depict the Weight Sharing Procedure. During construction, Construc observed non-compliance with its design involving failures by Heinrich to comply with the Spacing Requirement and the Weight Sharing Procedure. Nevertheless, Construc verified that it had inspected the installed formwork and back propping had been installed in accordance with the design.
[15] Construc breached a duty of care owed to Devine by failing to:
[25]
(a) advise Devine that compliance with the Spacing Requirement was problematical, if not impossible, without modification of Drawing 7;
(b) take all reasonable steps to ensure that its designs were suitable such that the Spacing Requirement would be achieved during installation;
(c) take all reasonable steps to ensure that Drawing 8 expressly stated or depicted the Weight Sharing Procedure; and
(d) take reasonable steps to advise Devine that there had been non-compliance with Construc's design involving failures by Heinrich to comply with the Spacing Requirement and the Weight Sharing Procedure.
[26]
[16] Had Construc not been negligent, the Slab Deflection would not have occurred. Construc is liable for Devine's Loss and Damage.
[27]
[17] The following is a sufficiently detailed summary of the facts alleged by the proposed amendments to the existing pleading.
[18] In terms of the claims against Odyssey, reliance is no longer placed upon Drawings 4 and 5. Rather, further drawings produced pursuant to the Odyssey retainer are relied upon namely, Drawings 9,[14] 10,[15] 11,[16] 12,[17] 13,[18] and 14.[19] Drawing 9 is a later revision of Drawing 5. Drawing 10 is a later revision of Drawing 4. The reference to Drawings 11, 12, 13 and 14 reflects a shift in focus from the sufficiency of bottom reinforcement to the sufficiency of reinforcement generally, including top reinforcement. Drawings 9 to 13 did not include adequate reinforcement of the slabs between levels 7 to 15 of Tower 2 to achieve compliance with AS 3600. The inadequate reinforcement contributed to the Slab Deflection because it reduced the capacity of the slabs to resist tensile cracking and deflection. Had Odyssey designed the slabs such that the reinforcement achieved compliance with AS 3600, the Slab Deflection would not have been as severe and Devine's Loss and Damage would have been less.
[19] Further, Drawing 1 adopted a concrete density of 24kN\m3 or 4.8kPa in respect of the 200mm slab thickness. The specified concrete density was inadequate because it failed to make allowance for the steel bars comprising the reinforcement within the slabs. The concrete density ought to have been calculated as 25kN\m3 or 5kPa plus a safety factor of x1.2. The specified concrete density contributed to the severity of the Slab Deflection because it underestimated the self-weight of the slab and so reduced the capacity of the slabs to resist deflection. Had Odyssey designed the slabs to make adequate allowance for the reinforcement within the slab, the Slab Deflection would not have been as severe and Devine's Loss and Damage would have been less.
[20] Drawings 2, 3 and 9 to 14 did not specify any torsional shear reinforcement at the slab corners or ends or exterior edges in circumstances where a competent engineer would have specified torsional shear reinforcement in those areas. The absence of torsional shear reinforcement contributed to the severity of the Slab Deflection because it reduced the capacity of the slabs to resist deflection. Had Odyssey designed the slabs to include torsional shear reinforcement, the Slab Deflection would not have been as severe and Devine's Loss and Damage would have been less.
[28]
(a) the design capacity of the Ischebeck props was approximately 14.19kN;
(b) the total design load for the back props would be 10.371kPa during constructions;
(c) the tributary area per prop was 1.8 m²;
(d) the total load per Ischebeck prop would be approximately 18.67kN;
(e) the design capacity of the Ischebeck props would, during construction, be exceeded by a factor of approximately 4.48kN per prop.
[29]
[23] No reliance is placed on Drawing 15 for the purpose of the claim against Construc in negligence. The claim against Construc in negligence remains effectively unchanged. The claim under the ACL against Construc, which is pleaded "further or in the alternative" to the negligence claim, may be outlined as follows:
[30]
(a) By Drawing 8, and two previous revisions of that drawing, Drawing 16[21] and Drawing 17,[22] Construc represented that:
(i) each newly cast slab would carry or support its own self weight without the removal of all temporary support of the newly cast slab;
(ii) further or alternatively to (i), the "Ultimate Load Imposed on Slab", the "Ultimate Spare Capacity" and the "Ultimate Design Load for Backpropping" figures as indicated on those drawings would not be exceeded notwithstanding that each newly cast slab did not have all temporary support removed prior to the pouring of the next (upper) slab; and
(iii) further or alternatively to (i) and (ii), if the formwork and back propping sequence depicted on the drawings was utilised the "Ultimate Load Imposed on Slab" and "Ultimate Spare Capacity" figures indicated on the drawings would not be exceeded during construction, the "Ultimate Design Load for Backpropping" would not exceed 9.62kPa and the load applied to each newly cast slab during construction would not cause deflection.
(c) By Drawings 7 and 15, Construc represented that the Ischebeck props would have a design capacity sufficient to withstand the total load during construction.
(d) The design evidenced by Drawings 8, 16, 17, 7 and 15 was inaccurate in that:
(i) each newly cast slab could not carry or support its own self weight until all temporary support in situ supporting that slab was removed and the designs did not expressly state that information;
(ii) the maximum uniform distributed load applied to each newly cast slab during construction would exceed the "Ultimate Load Imposed on Slab" figures indicated on the drawings;
(iii) the "Ultimate Spare Capacity" figures indicated on the drawings were wrong;
(iv) the "Ultimate Design Load for Back propping" exceeded 9.62kPa;
(v) the load applied to each newly cast slab during construction ultimately was of a level such as to cause deflection;
(vi) Drawing 8 misrepresented the maximum load that would be applied to any one slab (being S3) as 4.06kPA because the actual load, if the Construc design were followed, was 6.45kPA; and
[31]
[24] Devine seeks to recover from Construc, as damages pursuant to ss 236 or 237 of the ACL, Devine's Loss and Damage. Heinrich is sought to be made liable under the ACL for Devine's Loss and Damage arising out of the provision of Construc's design, including as described by the proposed amendments.
[32]
The explanation for the timing and content of the proposed amendments
[33]
[25] An expert retained on behalf of Devine, Mr Eric Fox, produced a report dated 25 June 2020. Devine's statement of claim was then filed on 19 August 2020. During February and March 2021, defences were filed by Heinrich, Odyssey and Construc. On 9 September 2020 and 7 August 2022, Dr Nicholas Stevens produced expert reports on behalf of Odyssey. On 21 September 2022, Mr Fox produced a supplementary report responsive to Dr Stevens' reports. At some point, it would appear after September 2022, Mr Fox informed Devine's solicitor that he did not have the expertise to analyse and interrogate Dr Steven's report and calculations. On 12 October 2022, Devine filed an amended statement of claim. On 28 February 2023, Mr Tim Peters produced an expert report on behalf of Heinrich. Mr Fox thereafter informed Devine's solicitor that he did not have the expertise to analyse and interrogate Mr Peters' report and calculations. By 10 May 2023, Devine's solicitor had found an expert with suitable qualifications and expertise, Dr Al-Ameri. By an order dated 11 July 2023, the respondents consented to the service of an expert report from Dr Al-Ameri. On 20 August 2023, Dr Al-Ameri produced a report which was responsive to Dr Stevens' and Mr Peters' reports. The proposed pleading has been settled by counsel following the receipt of the report of Dr Al-Ameri and seeks to make Devine's case consistent with the current state of the expert evidence which it intends to adduce at trial.
[34]
The proposed amendments arise out of substantially the same facts
[35]
[26] The essential question posed by r 376(4)(b) is whether the new cause of action arises out of "substantially the same facts" as a cause of action for which relief already has been claimed. That question involves a "fairly broad brush comparison",[23] but not one involving "too broad a brush",[24] between the nature of the original claim and that to which it is sought to be amended. The question involves matters of "impression",[25] and "degree".[26] The answer to the question is informed by policies underlying the applicable limitations statute.[27] The words "substantially the same facts" are not to be viewed as a "straitjacket".[28] The rule countenances the introduction of some new facts in support of a new cause of action,[29] without requiring precise similarity of factual circumstances.[30]
[27] The authorities have identified helpful practical tests, or lines of inquiry, which provide some guidance for the purpose of ascertaining whether additional facts arise out of substantially the same facts. One inquiry involves asking whether the additional facts arise out of "substantially the same story". In Draney v Barry, Thomas JA observed:[31]
[36]
"...If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts."
[37]
[28] Another inquiry involves considering whether evidence of the new facts would have been objectionable at a trial on the grounds of surprise or relevance, without the plaintiff having made the amendment. That type of inquiry was adopted by Keane JA in Wolfe v State of Queensland.[32]
[29] These practical tests or inquiries provide guidance but ultimately the required analysis is concerned with the words of the rule, "substantially the same facts".[33] In their submissions, Heinrich and Construc each referenced and relied upon the "same story" inquiry and the "would the evidence have been objectionable" inquiry.
[30] Heinrich's submissions may be outlined as follows. As against Heinrich, the existing case alleged that the bottom reinforcement was inadequate to achieve compliance with AS 3600. That allegation had been particularised by reference to an expert report which relevantly opined that whilst the bottom reinforcement was deficient in critical areas, the top reinforcement, with one exception, was sufficient. To the extent that the proposed amendments sought to now impugn the top reinforcement, that was contrary to the "story" told by the existing pleading. The allegations about concrete density and torsional shear reinforcement were described as "completely new".
[31] Construc's submissions may be outlined as follows. As against Construc, the existing case was "of very limited scope" and could be distilled to two criticisms of Construc's design involving the problematic nature of the Spacing Requirement and the failure to specify the Weight Sharing Procedure. In that respect, in the existing pleading, it is positively alleged that compliance with the Weight Sharing Procedure would have avoided the Slab Deflection. The existing case involved criticisms of the design "confined to matters of form and procedure" and did not extend to design calculations. In oral submissions, the criticism of the design was said to involve a problem with the design not being "sufficiently clear" and there was said to have been no complaint with the design "from a technical perspective". The alleged failure was said to involve a failure to provide sufficient information to permit the design to be followed. The existing case was said to be "premised on the fact that the drawings [were] correct and the failure was that they weren't followed".
[38]
"In the present case, the facts previously pleaded on Mr Wolfe's behalf concerned acts which it was alleged should have been carried out on the surface of the highway to remove welts which had formed there. They gave no hint that Mr Wolfe was contending for findings of fact to support the proposition that the State had unreasonably omitted to attend to the condition of the sub-surface of the highway and had thereby breached its duty of care to the users of the highway. The amendment sought by Mr Wolfe alleged a quite different breach of duty from the breach previously pleaded. It sought to set up a quite different allegation of breach of the State's duty of care to users of the highway.
[39]
An amendment which sets up a different breach of duty is not within the scope of r 376(4)(b) of the UCPR ... I consider that the cause of action raised by the amendment involving, as one of its elements, an alleged breach of duty on the part of the State in relation to the maintenance of the condition of the sub-surface of the highway, is a new cause of action. A breach of duty involving acts or omissions relating to the condition of the sub-surface of the highway, and the arrangements necessary for its efficient drainage, was not previously part of Mr Wolfe's case. The factual basis for the alleged breach of duty is substantially different from that previously pleaded; it does not arise out of substantially the same facts as the previously pleaded cause of action.
[40]
[36] Keane JA's statement to the effect that an amendment which sets up a different breach of duty is not within the scope of r 376(4)(b) of the UCPR should be read in the context in which that statement was made, namely a case involving a "quite different breach of duty from the breach previously pleaded". Wolfe has been subsequently characterised as a case in which "entirely new allegations [were] made"[36] and as authority for the proposition that, depending upon the circumstances of the particular case, an amendment which sets out a different breach of duty may not be within the scope of r 376(4)(b).[37]
[37] Brisbane Airport Corporation Pty Ltd v Arup Pty Ltd,[38] concerned a project known as the Northern Apron Expansion ("NAE") at the Brisbane Airport. The Brisbane Airport Corporation ("BAC") engaged Arup to provide geotechnical engineering and other services pursuant to retainers. The structure of the NAE, working upwards, comprised existing ground material (clay), a subgrade of clean sand, a sub-base layer of fine crushed rock and concrete panels joined together to create an apron. The NAE construction commenced in 2006 and was completed in 2008. In December 2010, cracks were observed in the NAE. BAC sued Arup in negligence and for misleading and deceptive conduct. There was a dispute as to whether proposed amendments introduced a new cause of action. If they did, BAC submitted that the new cause of action arose out of substantially the same facts as a cause of action for which relief had already been claimed. According to that submission, the amendments changed the focus from the failure to consider the effect of "surcharging"[39] work upon clay underneath the subgrade to a failure to consider the prospect of post-construction compaction of the sand subgrade placed on top of the clay. BAC submitted that, in both cases, the harm that the duty addressed, and which BAC alleged Arup failed to address, was the prospect of undesirable settlement or compaction in the material beneath the NAE pavement.
[38] In Arup, Applegarth J described BAC's existing pleading in the following way.[40] It made a claim in negligence based upon a duty of care which arose because of Arup's retainers and relied on a failure to design the NAE according to certain standards, including a failure to take account of the surcharging work, including the extent of surcharging. It alleged the consequence of Arup's failure to specify a sufficient standard for the construction of levels below the pavement and the consequences of its other breaches of duty as being the loss of load transfer efficiency and the cracking of the NAE pavement. Applegarth J found that the main difference between BAC's existing and proposed pleadings was that in the existing pleading the failure to consider the prospect of post-construction consolidation previously focused only on the natural ground, whereas the proposed pleading shifted attention, or extended the focus, to post construction consolidation of the subgrade material.
[41]
"This is not a case in which the new cause of action pleads a very different kind of breach, or where the adverse consequences of the newly alleged breach of duty are different. The breach of the pleaded duty concerns a failure to exercise reasonable care in respect of the design of the NAE, namely a failure to consider the risk of consolidation of component parts beneath the NAE pavement.
[42]
The duty of care to consider post-construction consolidation of materials beneath the pavement, and what should be done to prevent it, extended to all areas of the planned NAE. The area in which the sand was to be compacted extended beyond the area of the surcharging works, as originally defined in the [existing pleading]. However, the sand to be compacted was always within the area of the NAE expansion project, which Arup was engaged to design. The original claim concerned the negligent design and cracking of various areas of the NAE, including areas beyond the area of the surcharge works that were designed by Arup. What is new in the pleading is the addition of express reference to compaction of the sub-grade. Those new allegations apply to areas beyond the area of soil to be surcharged according to Arup's design of the surcharging works. However, the case remains one about the design of the whole of the NAE.
[43]
The new specific content of the same generally pleaded duty of care relates to compaction of the sand subgrade, not the settlement of the ground material. However, these are aspects, along with many other aspects of the pleaded duty, which give it specific content. They are different aspects of how Arup allegedly failed to consider the risk of post-construction consolidation and what should be done about that risk in designing the NAE and the works which would be required to construct it."
[44]
[40] Earlier in his Honour's reasons, after considering a number of authorities concerned with s 376(4)(b), Applegarth J had observed (footnotes omitted): [43]
[45]
"...Regard must be had to the acts and omissions which are alleged to establish liability under the new cause of action, and the adverse consequences for which damages are claimed. However, the mere fact that the new pleading alleges a breach of a different specific duty does not mean that the new cause of action does not arise out of substantially the same facts as the facts upon which an existing allegation of breach arises. ... The rule assumes a variation in the facts, for example because the new facts plead for the first time with specific content of a general duty or a different breach of duty."
[46]
[41] In Zonebar Pty Limited v Global Management Corporation Pty Ltd,[44] an appeal from a judge's decision to refuse leave to amend under r 376 was found to be "entirely without merit".[45] The appellant ("Zonebar") was an owner and developer of land. It had engaged the first respondent to provide project management and supervisory services in relation to the development and construction of a project on the land. The second respondent was a director of the first respondent.
[42] Zonebar commenced a proceeding in which it alleged that the respondents had failed to exercise reasonable care and diligence in advising Zonebar in relation to the approvals necessary for the development from the local authority. Zonebar's existing pleading had pleaded a term of the engagement agreement that the respondents would perform their obligations under that agreement with "the skill, care and diligence reasonably expected of a person which was, or represented itself to be, experienced and expert in managing industrial development projects .... in relation to .... making or causing to be made development, re-zoning, subdivision, civil works and building applications to" the local authority. Zonebar alleged that the respondents had failed to discharge that obligation in a timely fashion, as a result of which it had suffered loss because of delays in the realisation of the project. In its pleading, Zonebar made reference to part of the development, a parcel referred to as Lot 100, which had become the subject of a revised development approval from the local authority. There was no allegation that Zonebar had suffered any loss as a result of that approval or that any such loss was caused by the respondents. By a disputed amendment, Zonebar sought to make a claim for loss it suffered as a result of the creation and dedication of Lot 100 as part of a revision of the development approval for the project. The amendment alleged that the respondents had failed to advise Zonebar that it should have opposed, rather than consented, to the revision of the development approval and should have opposed the local authority requirement that each other lot in the development should have 10 per cent free space. It also alleged a failure to advise of a right to compensation under a relevant statute.
[43] As to the content of those pleadings, Keane JA relevantly observed (footnotes omitted):
[47]
"Zonebar's previous pleading contained no hint that it was propounding a case that the defaults of the respondents had led to the dedication of the parkland associated with Lot 100 or that this dedication had caused Zonebar loss. Nor was there any allegation that the respondents were duty-bound to advise it of its right to compensation or that they had defaulted in the performance of that duty. Nor was there any allegation that the respondents had misled Zonebar in that regard.
[48]
Allegations of acts or omissions on the part of the respondents apt to establish the liability newly asserted by Zonebar in the amendments were simply absent from its previous pleading. Even on the view of r 376(4)(b) of the UCPR most generous to it, these new causes of action do not arise out of the same or substantially the same facts as the causes of action for which relief had already been claimed.
[49]
On the approach advanced by Zonebar, in a case where a contract imposes two separate obligations, A and B, upon a defendant, an allegation of a breach of obligation B would be held to arise out of substantially the same facts as were previously pleaded simply because the previous pleading referred to the contract and alleged breach of A. To accept such an outcome would be to make a mockery of the requirement in r 376(4)(b) of the UCPR that the new cause of action must arise out of 'substantially the same facts' as those already pleaded. The substance of the new cause of action is different in terms of the acts or omissions which give rise to it, and the adverse consequences for which damages are claimed."
[50]
[44] Perhaps unsurprisingly, the submissions of Heinrich and Construc focused upon the differences between the existing pleading and the proposed amendments. The question posed by r 376(4)(b) requires close attention to the facts as already pleaded and as proposed, not just to the different facts. In the present case, there are significant facts which are common to the existing pleading and the new causes of action as contained in the proposed pleading. As against Odyssey, the retainer is the same, the material terms of the retainer are the same, the facts about the existence and rectification of the Slab Deflection are the same and the manner of calculation, and the amount, of Devine's Loss and Damage are the same. As against Heinrich and Construc, the Formwork Contract is the same, the facts about Heinrich's engagement of Construc to perform the design are the same, the facts about the existence and rectification of the Slab Deflection are the same and the manner of calculation, and the amount, of Devine's Loss and Damage are the same.
[45] As against Odyssey, the existing "story" of this proceeding is fundamentally concerned with whether Devine's Loss and Damage suffered by reason of the Slab Deflection was caused by the content of Odyssey's design of the slabs. To the extent that Devine now seeks to allege that the top and bottom reinforcement, as distinct from the bottom reinforcement, was inadequately designed, it is well arguable that this particular amendment does not involve a new cause of action. In any event, to suggest that the change of focus contemplated by that amendment is beyond the ambit of r 376(4)(b) would involve applying the rule as a straitjacket. It may be accepted that the allegations about concrete density and torsional shear reinforcement are "new" allegations. That characterisation is not of itself determinative as the rule countenances the addition of some new facts in support of a new cause of action. Whilst the adducing of evidence about these new facts might have been objectionable as irrelevant at a trial without the amendment, that of itself does not demand a conclusion that, in the circumstances of this case, the new cause of action does not arise out of substantially the same facts as a cause of action for which relief has already been claimed. Rather, in the present case, the new facts appear in the context of proposed amendments which do not plead very different kinds of breach or impugned conduct and where the adverse consequences of the newly alleged breaches or impugned conduct are not different from the adverse consequences of the existing breaches. Viewed as such, and to use the helpful metaphor, they are properly to be regarded as part of the same story.
[51]
"First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. ... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible."
[52]
[50] As to the first rationale, the present case is essentially a documentary design case which will largely be determined by expert opinion evidence. The respondents to the application did not rely upon any affidavit material. There is no suggestion that any relevant documents have been lost or that the experts have been unable to meaningfully interrogate or analyse the documented design. As to the second and third rationales, the proceeding was commenced in or about August 2020 in circumstances where the Slab Deflection was identified in January 2016 and rectification work was subsequently performed. Since the commencement of this proceeding, the parties have been engaged in a dispute about whether the defendants' respective designs may be regarded as having been causative of Devine's Loss and Damage. The efficacy of the respective designs has always been a matter of controversy. No reason appears to support a conclusion that the experts are, in any significant way, now disadvantaged by the focus upon different parts of the respective designs as revealed by the proposed amendments. As to the fourth rationale, whilst there is a public interest in disputes being resolved quickly, there are also legitimate private and public interests in this kind of significant damages claim being resolved by reference to real issues and properly informed expert opinions.
[51] Heinrich did not oppose the application. It was sought to be made liable under the ACL for Devine's Loss and Damage arising out of the provision of Construc's design as described by the proposed amendments. For the reasons I have provided in relation to the proposed amendments as they concern Construc, I have concluded that to the extent that there are new causes of action as against Heinrich, they arise out of substantially the same facts as a cause of action for which relief has already been claimed.
[53]
[52] The requirement in r 376(4)(a) is broad and not confined to questions of prejudice. In Menegazzo, Applegarth J relevantly said (footnotes omitted):[48]
[54]
"In determining whether the proposed amendment is appropriate, regard should also be had to the principles discussed in Aon Risk Services Australia Ltd v Australian National University and r 5 of the UCPR. The purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. Principles have developed governing amendments for which leave is required. They include the principle that an application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. An application to amend will not be acceded to without adequate explanation or justification, including an explanation for any delay in applying for the amendment. The interests of justice require consideration of the prejudice caused to other parties if the amendment is allowed. This includes considering the strain litigation has on litigants and the distress caused by delay and proposed changes to a case. These may be greater where there is no adequate explanation for why the changes were not made sooner."
[55]
[53] No complaint was made about the content of the proposed pleading in terms of its compliance with the rules of pleading contained in the UCPR. No trial dates have been set. In terms of the future conduct of the proceeding, the parties remain bound by r 5 UCPR and are able to avail themselves of supervision upon a special list[49] of this Court to ensure that the proceeding is efficiently prepared for trial from this point.
[54] I am satisfied that Devine has provided a sufficient explanation as to why the proposed amendments are sought to be made at this stage of the proceeding.[50] That explanation reveals that the need to amend is not the result of any deliberate tactical decision made by Devine. I also find that, on the basis of the material, the application to amend has been brought in good faith with a view to elucidating the real issues in dispute.
[55] Construc frankly conceded that the representations alleged against it are documentary. Although the alleged representations are documentary, whether they were understood as such and relied upon will presumably be the subject of testimony. There was no evidence of what might be styled actual prejudice, that is missing witnesses or lost or destroyed evidence.[51] The respondents each relied upon what may be described as the usual inferred prejudice which is associated with the passage of time and delay.[52] I accept that such prejudice may be inferred and have weighed that in my determination as to whether it is appropriate to grant leave to make the proposed amendments.
[56] Having regard to all of these matters, I have formed the view that it is appropriate within the meaning of r 376(4) to grant leave to amend in terms of the proposed amendments.
[56]
[57] The orders I make are as follows:
Pursuant to rule 376(4) of the UCPR, the plaintiff has leave to file the Amended Claim and Further Amended Statement of Claim in the form of exhibit MTD-01 to the affidavit of Matthew Thomas Deighton filed 3 November 2023.
[5] Drawing entitled "general notes sheet 1 - ST 1002, Revision A, Issued for Construction", first referenced at paragraph 21(a) of the proposed pleading.
[62]
[6] Drawing entitled "Tower 2 - Level 8 - 15 Profile Plan - ST-2041, Revision A, Issued for Construction", first referenced at paragraph 21(b) of the proposed pleading.
[63]
[7] Drawing entitled "Tower 2 - Level 7 - Profile Plan - ST-2040, Revision A, Issued for Construction", first referenced at paragraph 21(b) of the proposed pleading.
[64]
[8] Drawing entitled "Tower 2 - Level 7 - Bottom Reinforcement Plan - ST-2140, Revision A, Issued for Construction", first referenced at paragraph 78(b)(A) of the proposed pleading.
[65]
[9] Drawing entitled "Tower 2 - Level 8 - 15 - Bottom Reinforcement Plan - ST-2141, Revision A, Issued for Construction", first referenced at paragraph 78(b)(A) of the proposed pleading.
[11] Drawing entitled "CCE-FW-210, Tower 2 Level 8 Levels 9-15 similar general formwork layout", first referenced at paragraph 24 of the proposed pleading.
[68]
[12] Drawing entitled "CCE-FW-213, Tower 2 Level 8 Levels 9-15 similar conventional slab details", first referenced at paragraph 25 of the proposed pleading.
[69]
[13] Drawing entitled "Formwork Back propping for Typical Floors - CCE-BP-01 - Rev C4", first referenced at paragraph 27 of the proposed pleading.
[70]
[14] Drawing entitled "Tower 2 - Level 8-15 - Bottom Reinforcement Plan - ST-2141, Revision B, Laps Revised", first referenced at paragraph 21(c)(A) of the proposed pleading.
[71]
[15] Drawing entitled "Tower - Level 7 - Bottom Reinforcement Plan - ST-2140, Revision B, Laps Revised", first referenced at paragraph 21(c)(B) of the proposed pleading.
[72]
[16] Drawing entitled "Tower 2 - Level 8 - 15 - Top Reinforcement Plan - ST-2241, Revision A, Issue for Construction", first referenced at paragraph 21(c)(C) of the proposed pleading.
[73]
[17] Drawing entitled "Tower 2 - Level 8 - 15 - Top Reinforcement Plan - ST-2241, Revision B, Laps Revised", first referenced at paragraph 21(c)(D) of the proposed pleading.
[74]
[18] Drawing entitled "Tower 2 - Level 7 - Top Reinforcement Plan - ST-2240, Revision B, Laps Revised", first referenced at paragraph 21(c)(E) of the proposed pleading.
[75]
[19] Drawing entitled "Standard Details - RC Columns - ST-1005 - Revision D", first referenced at paragraph 21(c)(F) of the proposed pleading.
[76]
[20] Drawing entitled "Tower 2 - Level 7 - Ischebeck Slab Details", first referenced at paragraph 26A of the proposed pleading.
[77]
[21] Drawing entitled "Formwork Back propping for Typical Floors - CCE-BP-01 - Rev C2", first referenced at paragraph 90 of the proposed pleading.
[78]
[22] Drawing entitled "Formwork Back propping for Typical Floors - CCE-BP-01 - Rev C3", first referenced at paragraph 90 of the proposed pleading.
[10] As regards, Odyssey, on or about 26 September 2014, Odyssey produced Drawing 1[5] which stated that the design floor loads for Tower 2 had been calculated in accordance with AS 1170.1. On or about 6 March 2015, Odyssey authored and issued further design drawings, Drawings, 2,[6] 3,[7] 4,[8] and 5.[9] Drawings 2 and 3 denoted a slab thickness of 200mm, to be supported by a centrally located lift and stair core and concrete columns. Drawings 2 and 3 noted that there were to be four concrete joints in each slab. Drawings 4 and 5 failed to include adequate bottom reinforcement of the slabs between levels 7 to 15 of Tower 2 to achieve compliance with AS 3600. The inadequate bottom reinforcement contributed to the Slab Deflection as it reduced the capacity of the slabs to resist tensile cracking and deflection. Had Odyssey designed the slabs such that the bottom reinforcement achieved compliance with AS 3600, the Slab Deflection would not have been as severe and Devine's Loss and Damage would have been less. The design's failure to include adequate bottom reinforcement was in breach of Odyssey's retainer, in breach of Odyssey's duty of care to take all reasonable steps to ensure that any designs authored by Odyssey were fit for purpose, of merchantable quality and free from defects, and misleading and deceptive. Devine claims as against Odyssey, part of Devine's Loss and Damage, in respect of causes of action for breach of contract, in negligence and pursuant to s 236 of the Australian Consumer Law ("ACL").[10]
[11] As regards Heinrich and Construc, pursuant to the Formwork Subcontract, Heinrich agreed to produce designs for the formwork and back propping sequence to be used on the Project and to carry out and complete the work under the Formwork Subcontract in accordance with the design. Heinrich's subcontractor, Construc, performed the design work. Construc designed a formwork and back propping sequence relevantly described in three drawings, namely Drawing 6,[11] Drawing 7,[12] and Drawing 8.[13] Drawings 6 to 8 described a back propping procedure by reference to the most recently poured slab S0 and previously poured slabs S1, S2, S3 and S4.
[12] By that design:
(g) to carry or support their own weight, it was necessary that each of S1, S2 and S3 should have achieved adequate strength (25MPa) and to have had all temporary support in the form of back props and formwork fully stripped;
(h) once each of S1, S2 and S3 could carry or support their own weight, it was necessary to reinstall all back props so that any future loads applied to each of the supporting slabs would be shared with the slab below; and
(i) until the procedure described in (g) and (h) (the "Weight Sharing Procedure") had been followed, each slab would not support its own weight, the weight of each slab would continue to be shared by each supporting slab and, as new slabs were poured, there would be an incremental increase to the load applied to each slab below.
[21] The Odyssey design's inclusion of inadequate reinforcement, specification of inadequate concrete density and failure to include torsional shear reinforcement was misleading and deceptive, in breach of Odyssey's retainer, and in breach of Odyssey's duty of care to take all reasonable steps to ensure that any designs authored by Odyssey were fit for purpose, of merchantable quality and free from defects. Devine claims as against Odyssey, part of Devine's Loss and Damage, in respect of causes of action for breach of contract, in negligence and pursuant to ss 236 or 237 of the ACL.
[22] Claims for an indemnity and for damages under s 237 of the ACL are included as against Heinrich. Claims for damages pursuant to ss 236 and 237 of the ACL are included as against Construc. As against Construc and Heinrich, reliance is placed upon a new drawing, Drawing 15,[20] which denoted the use of Ischebeck props and an applied working load of 23.65kN. Drawing 15, when read with Drawing 7, depicted spacing of the Ischebeck props of 1.2 metres and 1.5 metres in two directions which provided for a tributary area per prop of 1.8 m². As regards this aspect of the design (the "Inadequate Prop Claim"), Construc ought to have known that:
(vii) the Ischebeck props in fact did not have a design capacity sufficient to withstand the total load to be applied during construction.
(e) The representations were misleading or deceptive and caused the formwork and back propping sequence for each slab between levels 7 to 15 of Tower 2 to be performed substantially in accordance with Drawings 8 and 15.
(f) But for the misleading and deceptive conduct constituted by the representations:
(i) Drawing 8 would have expressly stated or depicted the Weight Sharing Procedure;
(iii) the total loads would have been accurately identified on the design drawings;
(iv) the formwork would have used a prop which had a design capacity sufficient to withstand the total load during construction;
(v) the Slab Deflection would not have occurred; and
(vi) Devine's Loss and Damage would not have been incurred.
[32] The proposed amendments were then described by Construc as encapsulated by the Inadequate Prop Claim and two misleading and deceptive representations conveyed by the design. The first representation was to the effect that each newly cast slab would carry or support its own weight without the removal of all temporary support (the "Self Weight Claim"). The second was to the effect that the slabs would not be overloaded if there was adherence to the formwork and back propping sequence depicted by the drawings (the "Load Capacities Claim"). The Inadequate Prop Claim was "entirely new" and there was said to be "no factual element" common to that claim and the existing pleading. It was conceded that the Self Weight Claim was "generally relate[d]" to the Weight Sharing Procedure. However, to establish the Self Weight Claim, Devine would need to prove that the failure to specify the Weight Sharing Procedure was misleading and deceptive, notwithstanding that the existing pleading alleges, as against Heinrich, that the Slab Deflection was a reasonably obvious risk or consequence of any failure to follow the Weight Sharing Procedure. This tension in the alternative cases was "a contradiction" which was said to be "fatal" to any contention that the new claim arose from substantially the same facts. The Load Capacities Claim was premised on the contention that, because Construc had miscalculated loads, strict compliance with its designs would cause deflection in the slabs. The Load Capacities Claim was described as "fundamentally different" to the existing claims because it went to "the substance of the designs and the calculations informing them".
[33] It may be accepted that the facts of other cases are unlikely to be determinative, or particularly informative, about the proper application of r 376(4) in any given case. Nevertheless, the reasoning adopted in relation to other factual scenarios is of some assistance in understanding the proper application of the "fairly broad brush comparison" countenanced by the rule.
[34] In Wolfe, the plaintiff suffered personal injury when he crashed into a tree after losing control of his car when it hit welts on the surface of a highway. He alleged negligence involving a failure by the State to bind, seal or otherwise deal with the welts which had appeared in the highway surface, a failure to carry out any or any adequate maintenance of the surface to render the surface reasonably smooth and/or safe for cars travelling at speed and a failure to warn about the uneven surface. The plaintiff sought leave to amend to allege negligent construction of the highway by failing to provide adequate subsurface drainage to prevent the welts forming and a failure to maintain the highway by providing adequate subsurface drainage.
[35] Keane JA emphasised that the facts pleaded prior to the proposed amendment "made no reference to any deficiency in the condition of the sub-surface of the highway which the State was duty-bound to correct in order to discharge its obligation to exercise reasonable care for users of the highway".[34] After having observed that the determination of whether an act or omission involves a breach of duty depends upon the identification of the particular facts said to reveal the breach of duty, his Honour then said:[35]
[46] As against Construc, the existing "story" of this proceeding is fundamentally concerned with whether Devine's Loss and Damage suffered by reason of the Slab Deflection was caused by the content of Construc's design of the formwork and back propping. Construc's characterisation of the existing case as a case about design deficiency limited to matters of "form and procedure", not concerned with "a technical perspective of the design" and devoid of any consideration of, or concern about, "calculations", should be rejected. The existing pleading references the design of "a formwork and back propping sequence". A critical part of the existing pleading is concerned with factual allegations about the circumstances in which the slabs, contemplated to be poured in the context of that formwork and back propping sequence, would be able to carry or support their own weight. In that regard, the existing pleading speaks in terms of what Construc's design "inherently required". It may confidently be inferred that these circumstances and inherent requirements necessarily involve technical considerations and calculations.
[47] I reject the submission that the presence of a fact or facts in a proposed alternative cause of action which is or are contradictory to existing facts is necessarily "fatal" to the new cause of action being aptly described as "a cause of action arising out of substantially the same facts as a cause of action for which relief has already been claimed". Each case must depend on its own facts. In the present case, two contradictions were relied upon. The first was that in the existing pleading there are allegations to the effect that Construc's design failed to expressly depict or state the Weight Sharing Procedure and, notwithstanding that failure, the Slab Deflection remained a reasonably obvious risk or consequence of failing to follow the Weight Sharing Procedure. The new pleading alleges that the failure to expressly state or specify the Weight Sharing Procedure was misleading or deceptive. The substantive fact, the failure of the design to expressly depict or state the Weight Sharing Procedure, remains and the new cause of action alleges an alternative consequence arising from the substantive fact. In my consideration this is properly described as a change in focus involving different or additional detail. The second contradiction arose out of the premise of the Load Capacities Claim, namely that because Construc had miscalculated loads, compliance with its design would cause deflection in the slabs. According to the existing pleading, whilst the Spacing Requirement would be problematic or impossible to achieve without modification to the Construc design, if there were compliance with the Spacing Requirement and the Weight Sharing Procedure, the Slab Deflection would not have occurred. The alternative claim encompassed in the Load Capacities Claim, involves new facts but they are fundamentally concerned with the accuracy of the design of the formwork and back propping sequence and the circumstances in which newly cast slabs would be able to support or carry their own weight. A critical part of the existing pleading is concerned with the circumstances in which the slabs, contemplated to be poured in the context of the formwork and back propping sequence, would be able to carry or support their own weight. Again, properly characterised, the Load Capacities Claim arises out of the same story.
[48] In the context of the claims against Construc, it may be accepted that the Inadequate Prop Claim is a new allegation. As I have already indicated that characterisation is not of itself determinative. Whilst the adducing of evidence about some of the facts relevant to the Inadequate Prop Claim, might have been objectionable as irrelevant at a trial without the amendment, that of itself does not demand a conclusion that, in the circumstances of this case, the Inadequate Prop Claim does not arise out of substantially the same facts as a cause of action for which relief has already been claimed. Rather, in the present case, the new facts appear in the context of proposed amendments which plead impugned conduct in the process of design and the production of drawings, some of which are already referenced in the existing pleading. The newly alleged impugned conduct is not of a very different kind to the conduct relied upon in the existing pleading and the adverse consequences of the newly alleged impugned conduct are not different from the adverse consequences of the existing conduct. Viewed as such, the Inadequate Prop Claim is properly regarded as part of the same story.
[49] Having regard to the significant facts which are common to the existing pleading and the proposed causes of action, I have formed the view that the policies underlining limitation periods are not undermined by characterising the relevant "stories" in the way I have. In Brisbane South Regional Health Authority v Taylor, McHugh J referred to four rationales for the enactment of limitation periods (footnotes omitted):[47]