GREATER LITHGOW CITY COUNCIL v WOLFENDEN [2007] NSWCA 180 | Case summary

The plaintiff, who had begun to suffer from epilepsy, sued his employer claiming that his condition was caused by exposure to chemicals at work. After the three year limitation period had expired he sought leave to amend to add a new cause of action based on a frank head injury at work earlier on the day he suffered his first epileptic fit. The application was made under s 64 of the Civil Procedure Act. The employer argued the case was not covered by s 65 and there was no power to allow an amendment under s 64. The Judge overruled the objection and allowed the amendment. On appeal held:

1 HANDLEY AJA: This is an application by the defendant for leave to appeal from a decision of Kearns DCJ on 26 September 2006. His Honour granted the plaintiff leave to amend his statement of claim to add an allegation based on a frank injury suffered at work. The plaintiff had commenced the proceedings in the District Court within time on 14 September 2001. 2 The Judge held that the statement of claim alleged, in substance, that the plaintiff's epilepsy was caused by his exposure at work to chemicals. Explicit reliance was not placed on a frank injury the plaintiff suffered at work on 31 December 1998. 3 The plaintiff suffered his first epileptic seizure later that day. The frank injury was reported to the employer on 6 January 1999 and the plaintiff submitted a claim form under the Workers' Compensation Act on 9 August that year which identified his injury as post traumatic epilepsy. However his original legal advisers did not take this simple view of his case and his statement of claim alleged essentially that his epilepsy was caused by exposure to chemicals at work. 4 In due course, following a change of solicitors, a different view of the case was taken and the plaintiff sought leave to amend the statement of claim in order to rely on the frank injury. This application was made by notice of motion on 30 August 2006. By that date the plaintiff's cause of action in respect of the frank injury on 31 December 1999 was statute barred. Fresh proceedings would also have attracted the new regime for workers' common law damages under amendments to the Workers' Compensation Act which apply retrospectively but not to pending actions. 5 The application was made under s 64 of the Civil Procedure Act which gives the court a general power to grant leave to amend at any stage. An objection was taken by the defendant on the ground that the case did not fall within s 65 of the Civil Procedure Act. This section deals with circumstances in which the court can grant leave to amend after the expiration of the limitation period to introduce a new cause of action or a new defendant or change the capacity in which a person is suing or being sued. It was said that this section was a code which excluded any power to grant leave to amend under the general provisions in s 64 to add a statute barred cause of action. 6 The defendant placed particular reliance on a decision of Austin J in Clutha v Miller (No 2) [2002] NSWSC523. 7 His Honour was considering a case under the Supreme Court Rules prior to the introduction of the Civil Procedure Act but his analysis is relevant to the construction of the new Act. 8 His Honour took the view that the earlier decisions of this Court, to which reference will later be made, did not establish that the general power to grant leave to amend in SCR Pt 20 r.1 enabled leave to be granted to add a statute barred cause of action in cases outside r.4. His Honour thus held that the special power in SCR Pt 20 r.4 was the only power to grant leave to amend in such cases and that the general power was not available. 9 This decision was not followed by White J in New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] 186 FLR 175 and by McDougall J in Ingot v Macquarie (No 3) [2005] NSWSC 255, by White J again in Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238, and by Brereton J in Street v Luna Park Sydney Pty Limited [2006] NSWSC 230. Kearns DCJ preferred the views expressed by White J, McDougall J and Brereton J and held that he had power to grant the amendment under s 64 of the Act. 10 His Honour undertook an exercise of the discretion thus enlivened and concluded that it should be exercised in favour of the plaintiff. His Honour's exercise of discretion was based on the early disclosure of the frank injury to the employer and its connection with the plaintiff's epilepsy and I see no basis for interfering assuming the necessary power was available. 11 Sections 64 and 65 of the Civil Procedure Act provide as follows: " 64 (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 65 (1) This section applies to any proceedings commenced before the expiration of any relevant period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process , in relation to any proceedings, includes any pleading subsequently filed in the proceedings." 12 Kearns DCJ held that the provisions of s 65(4) displaced any rule of construction which would have treated s 65 as a special provision in the nature of a code displacing the general provisions in s 64 so that the only power to allow a statute barred cause of action to be added would be that conferred by s 65. As a matter of statutory construction that view seems to me to be clearly correct. Mr King SC, with his customary skill, did his best to throw doubt on what seems to me to be the clear effect of the language of s 65(4) but he failed to persuade me that the subsection did not have the operation that it appears clearly to have. 13 It is necessary to say something about the history of the rules of Court which in substance have been incorporated in those sections of the Civil Procedure Act. The matter first came before this court in McGee v Yeomans [1977] 1 NSWLR 273. The plaintiff had brought an action in the Supreme Court of New South Wales against the administrator of the estate of a deceased driver appointed by the Supreme Court of Victoria. The proceedings were improperly constituted as the appointment of an administrator or an executor by a foreign court is not recognised in New South Wales. By the time the plaintiff understood the difficulty of his position a claim against the same defendant in his capacity as an executor de son tort in New South Wales was statute barred. 14 The primary judge applied the rule in Weldon v Neal (1887) 19 QBD 394 and refused leave to amend. 15 This court reversed that decision and held that SCR Pt 20 r.1 and r.4 displaced the rule in Weldon v Neal and that r.1 conferred a general power which enabled the Court to grant leave to add a statute barred cause of action outside the cases covered by r.4. The principal judgment was that of Glass JA who said at p 280: "By providing in r. 4(3)-(5) that an amendment may be authorized which allows the substitution of a new party, the suing by the plaintiff in a new capacity and the substitution of a new cause of action, the rule was, in those circumstances, totally destroyed. I am unable to accept that it continued, nonetheless, to operate in circumstances outside their terms with undiminished vigour. When it is further provided that the abrogation of the settled rule of practice in certain defined situations shall not in any way abridge the width of the general power to amend, there is in my view an implication that other amendments might in the exercise of discretion be properly allowed in situations not expressly dealt with by the rule, notwithstanding that they introduce causes of action then barred by the expiry of a period of limitation. I am driven to the conclusion that the Supreme Court Rules , upon their proper construction, displace the settled rule of practice laid down in Weldon v Neal (1887) 19 QBD 394 and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow." 16 Moffitt P agreed (at 274) with the Judgment of Glass JA. Mahoney JA decided the case on narrower grounds taking the view that it fell within the provisions of r.4. 17 This Court reaffirmed that view of the operation of Pt 20 rr.1 and 4 in Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 at 171, 180-1, and 183 and said in clear terms that McGee v Yeomans was a binding decision of this Court that sustained the wider power of amendment under rule 1 in cases where a plaintiff sought to add a statute barred cause of action. This Court maintained that view in Fernance v Nominal Defendant (1989) 17 NSWLR 710, 719 in the judgment of Gleeson CJ and in Bebonis v Angelos (2002) 56 NSWLR 127, at 138-9. 18 Parliament, by using substantially the same language in ss 64 and 65 of the Civil Procedure Act, and in particular in the provisions of s 65(4), must be taken to have endorsed this line of authority. In my view the Court should apply the settled construction of the former rules to those sections. 19 Mr King relied on judgment of the English Court of Appeal in Brickfield Properties Limited v Newton [1971] 1 WLR 862, but in my view the passages in the judgments of Edmund Davies LJ and Cross LJ relied upon provide no basis for rejecting the McGee v Yeomans construction of these sections. 20 I would propose that leave to appeal be granted so that this question might be authoritatively settled by this court but I would dismiss the appeal. 21 I would therefore propose the following orders.

GREATER LITHGOW CITY COUNCIL v WOLFENDEN

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