PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COURT SUPERVISION – AMENDMENT – ORIGINATING
PROCESS, PLEADINGS ETC
– where the plaintiffs have filed an application under r 376(4) of the
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COURT SUPERVISION – AMENDMENT – ORIGINATINGPROCESS, PLEADINGS ETC– where the plaintiffs have filed an application under r 376(4) of theUniform Civil Procedure Rules 1999 (Qld) for leave to file and serve afourth further amended statement of claim – where the application is madeon the morningof the sixth day of a trial which is listed for some 12 days ofhearing – where the proposed amendments fundamentally concernthe timingand content of advice which it is alleged a reasonably careful and competentsolicitor in the position of the defendant,exercising reasonable care andskill, would have provided to the plaintiffs in the course of the performance ofa retainer –where the essential question posed by r 376(4) is whether thenew cause of action arises out of substantially the same facts as acause ofaction for which relief already has been claimed – whether the new cause
of action is fundamentally connected with
the existing story of the pleading and
arises out of substantially the same facts – whether the plaintiffs should
be granted
leave to file and serve a fourth further amended statement of
claim
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376(4)
Aon
Risk Services Australia Limited v Australian National University
[2009] HCA 27
(2009) 239 CLR 175, cited
Borsato v Campbell [2006] QSC 191,
cited
Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd
[2024] QSC 285, cited
Gladstone Ports Corporation Limited v Murphy
Operator Pty Ltd [2024] QCA 74, cited
Menegazzo v
Pricewaterhousecoopers (a firm) [2016] QSC 94, cited
Murdoch v
Lake [2014] QCA 216, cited
Wolfe v State of Queensland [2008] QCA 113
[2009] 1 Qd R 97, cited
Judgment (46 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC - where the plaintiffs have filed an application under r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) for leave to file and serve a fourth further amended statement of claim - where the application is made on the morning of the sixth day of a trial which is listed for some 12 days of hearing - where the proposed amendments fundamentally concern the timing and content of advice which it is alleged a reasonably careful and competent solicitor in the position of the defendant, exercising reasonable care and skill, would have provided to the plaintiffs in the course of the performance of a retainer - where the essential question posed by r 376(4) 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 - whether the new cause of action is fundamentally connected with the existing story of the pleading and arises out of substantially the same facts - whether the plaintiffs should be granted leave to file and serve a fourth further amended statement of claim
G Gibson KC, with S Russell, for the plaintiffs/applicants
[11]
M Hodge KC, with A Campbell, for the defendant/respondent
[12]
[1] This is an application by the plaintiffs for leave to file and serve a fourth further amended statement of claim. The application is made on the morning of the sixth day of a trial which is listed for some 12 days of hearing. The proceeding has been managed for some years on the commercial list.
[2] The proposed amendments fundamentally concern the timing and content of advice which it is alleged a reasonably careful and competent solicitor in the position of the defendant, exercising reasonable care and skill, would have provided to the plaintiffs in the course of the performance of a retainer. The retainer was to act in relation to the sale of the plaintiffs' shares in One Key Holdings Pty Ltd to Fircroft Technical Services Australia Pty Ltd ("Fircroft"). There is no issue in the proceeding as to the existence and scope of the duty of care owed in the context of that retainer.
[3] The plaintiffs' case as presently pleaded contemplates advice being given on 19 May 2016 by the putative solicitor apprised of identified facts that are alleged to have occurred over a period of time between 3 March 2016 and 19 May 2016.
[4] The contemplated advice extends to various risks. First there is the risk of a Fair Work Commission approval being set aside or quashed. If that risk came to fruition, then there are said to have been risks of:
[13]
(a) the plaintiffs suffering loss by reason of being in breach of one or more warranties in the Share Sale Agreement executed on 19 May 2016 ("the SSA"), giving rise to an Excluded Claim (one excluded by an insurance policy) and entitling Fircroft to reduce the amount of the First Deferred Payment and/or the Second Deferred Payment (as the case may be); or
(b) Fircroft refusing to make any further payments under the SSA; or
(c) the plaintiffs not being entitled to the First Deferred Payment or the Second Deferred Payment (as the case may be), or otherwise receiving less than the maximum price under the SSA.
[14]
[5] The proposed amendments seek to distinguish between the content of the advice which ought to have been given on 19 May 2016 and other advice which is now alleged as advice which should have been given at an earlier time or times during the course of the retainer. That is, the proposed pleading contemplates two different kinds of advice being given at different times.
[6] The first form of advice is advice which ought to have been given on and from 31 March 2016. That advice is detailed in paragraph 37 of the proposed pleading in terms that the reasonably careful and competent solicitor:
[15]
"(a) would have advised and warned the Plaintiffs that as a consequence of the matters pleaded at subparagraph 13(a) above, there was a reasonably foreseeable, and not a fanciful, risk of the FWC Approval being set aside or quashed as pleaded in subparagraph 13(b) above;
[16]
(b) having advised and warned the Plaintiffs of the risk pleaded in subparagraph 37(a), would have advised the Plaintiffs that, if that risk came to fruition, Fircroft may refuse to make any further payments under the SSA or that they may cease to be entitled to the First Deferred Payment or the Second Deferred Payment (as the case may be) or that they may otherwise receive less than the maximum price of $33,281,250, under the SSA;
(c) would also have advised the Plaintiffs that, before entering into the SSA, they should consider the steps available to them and the One Key Group that would avoid or reduce those risks;
(d) would also have advised the Plaintiffs that they should enter into the SSA only if they had considered, and were prepared to accept, those risks; and
(e) further or alternatively to subparagraphs 37(d) and (e), would also have advised the Plaintiffs that they should obtain other legal advice, independent of the Defendant, as to:
(i) the lawfulness and enforceability of the FWC Approval and the RECS Enterprise Agreement 2015; and
(ii) the likelihood of the FWC Approval being set aside or quashed, so that the RECS Enterprise Agreement 2015 was of no legal effect, if legally challenged in the Federal Court of Australia."
[17]
[7] The second form of advice is advice which it is alleged should have been given on and from 19 May 2016. That form of advice is described in paragraph 37A of the proposed pleading in terms that the reasonably careful and competent solicitor:
[18]
"(a) would have advised and warned the Plaintiffs that as a consequence of the matters pleaded at subparagraph 13(a) above, there was a reasonably foreseeable, and not a fanciful, risk of the FWC Approval being set aside or quashed as pleaded in subparagraph 13(b) above;
[19]
(b) having advised and warned the Plaintiffs of the risk pleaded in subparagraph 37A(a), would have advised the Plaintiffs that if that risk came to fruition, it would be likely that the Plaintiffs would be shown to be (and always to have been) in breach of one or more of the Seller Warranties in Part 15 of Schedule 4 of the SSA, giving rise to an Excluded Claim (and thus excluded by the W&I Policy) entitling Fircroft to reduce the amount of the First Deferred Payment and/or the Second Deferred Payment (as the case may be);
(c) would also have advised the Plaintiffs that, before entering into the SSA, they should consider the steps available to them and the One Key Group that would avoid or reduce those risks;
(d) would also have advised the Plaintiffs that they should enter into the SSA only if they had considered, and were prepared to accept, those risks; and
(e) further or alternatively to subparagraphs (d) and (e), would also have advised the Plaintiffs that they should obtain other legal advice, independent of the Defendant, as to:
(i) the lawfulness and enforceability of the FWC Approval and the RECS Enterprise Agreement 2015; and
(ii) the likelihood of the FWC Approval being set aside or quashed, so that the RECS Enterprise Agreement 2015 was of no legal effect, if legally challenged in the Federal Court of Australia."
[20]
[8] The application to amend has arisen in the following broad context.
[9] The plaintiffs provided written opening submissions dated 3 November 2025. Paragraph 126 of that opening stated that the plaintiffs would, at the conclusion of the trial, be asking the court to make findings, notably that "as at 19 May 2016 the Defendant knew or ought to have known that, as a result of the way in which the approval ... was obtained ... the 2015 EA could not lawfully have been approved by the Fair Work Commission ... was void and of no legal effect, and was liable to be quashed ... [and] would likely result in potentially substantial financial loss and damage to the One Key Group".
[10] The defendant provided a written opening on 10 November 2025. The defendant's opening materially stated:
[21]
"It appears that the plaintiffs' case is that [the defendant] should have provided this advice on 19 May 2016 (that is, the day the SSA was executed)."
[22]
[11] That statement was explained, not by reference to the pleadings, but by reference to paragraph 126 of the plaintiffs' written opening. A footnote in the defendant's written opening further stated, "This position presumably reflects that certain information upon which the plaintiffs rely for their claim only became known on 19 May 2016; see for example [69], [72]-[73], and following paragraphs, of the [plaintiffs'] written opening submissions".
[12] The trial has reached the point where the plaintiffs' first witness, Mr Wechsel, has given evidence in chief and been cross examined. As a matter of general observation, Mr Wechsel's evidence in chief did not commit to or descend into the detail of the specifics of the dates or occasions when he considered that he ought to have received advice.
[13] In the course of his cross examination on day two, the following exchange occurred between Mr Wechsel and counsel for the defendant:
[23]
"When you say, 'If I had been warned at some time', what time were you talking about?---Prior to the sale to Fircroft.
[24]
So prior to the 19th of May ... 2016, is that right?---Yes
[25]
Do you believe that if you had been given this warning of risks on the 19th of May 2016, that you would not have gone through with the sale to Fircroft?---Correct.
[26]
And do you believe that if you had been given this warning on the 19th of May 2016, that you would've been able to avoid the Federal Court proceeding being commenced?---I - I'm not certain."
[27]
[14] There were some further questions directed to advice being given on the 19th of May 2016.
[15] On day three of the trial, counsel for the defendant posed a question to Mr Wechsel, "So the starting proposition is, if you were warned before the 19th of May 2016; is that right?". Mr Wechsel responded "Yes". At that point, the court inquired of counsel whether the question ought to have been put in terms of a warning on the 19th of May 2016. In response to that question, counsel for the defendant referred to the defendant's opening and the defendant's stated understanding that the case was that the advice would have been given on the 19th of May. The defendant's counsel then submitted, "but when you look at the pleading, the pleading ... doesn't say anything about exactly when the advice would have been given. ... it would certainly be helpful for me, and it may be helpful for your Honour, to know whether the case is limited to the advice that had been given on the 19th of May or whether it's said it should have been given at an earlier point in time, because that will then affect what I need to deal with in cross-examination".
[16] Over the course of the fourth day of the trial, the plaintiffs unsuccessfully applied to amend their pleading. I refused the application on the basis that the proposed pleading, at that point, contained logical errors and apparent inconsistencies. In that context, I ruled that the current pleading, on my reading, contemplates advice by the putative solicitor being given on and by reference to circumstances which existed or had occurred as at 19 May 2016.
[17] In support of the present application, the plaintiffs have relied upon an affidavit of Mr Russell, the partner of the firm with the conduct of the proceeding on behalf of the plaintiffs. In preparing his affidavit, Mr Russell conducted a thorough review of his file. Based upon his thorough review and detailed knowledge and understanding of the conduct of the proceeding on behalf of the plaintiffs, Mr Russell stated his belief that at all material times until the commencement of the trial, the plaintiffs' pleading included a case that the defendant had failed to advise or warn of risks in the course of the retainer in the period leading up to and including 19 May 2016. Mr Russell was not cross examined. I have no hesitation in accepting Mr Russell's evidence. I find that he genuinely held the belief to which he deposed.
[28]
"The term 'cause of action' was defined in Cooke v Gill as being 'every fact which is material to be proved to entitle the plaintiff to succeed', a definition which many judgments have employed in the context of this rule or its equivalent ... But it has not been applied literally, for otherwise any new fact to be added to a plaintiff's case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). ... The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff's case is described."
[29]
[26] In Murdoch v Lake,[3] P Lyons J considered that a cause of action "is the combination of facts which gives rise to a right to sue" and, in that regard, referred to Bruce v Odhams PressLtd where Scott LJ had observed that it is often difficult to distinguish between a material fact and information which it is reasonable to plead in order for the defendant to know the case that has to be met at trial. P Lyons J further observed:
[30]
"... if an amendment introduces a new material fact, then a new cause of action is introduced, even if the cause of action is of the same type or category as one pleaded before the amendment. However, if the material facts remain the same, then no new cause of action is introduced."
[31]
[27] In Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd,[4] the court observed:
[32]
"There is a need to distinguish between the addition of facts which involve a new cause of action and further particulars of an already pleaded cause of action. The distinction between material facts and particulars, although easily stated, is not always easily applied. In a different context, it has been observed that where, in a complex case, a pleader adopts a narrative style of pleading, as distinct from a material fact model of pleading, 'the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action'."
[33]
[28] In Wolfe v State of Queensland,[5] Keane JA spoke in terms of ascertaining "the scope" of an existing pleading on a "a fair reading". In Wolfe, Keane JA went on to "test" whether a proposed case included a new cause of action by considering whether, without the amendment, evidence probative of the new allegations would have been objectionable at trial on the grounds of relevance and surprise. That approach is very much directed to the substance of the cause or causes of action contemplated by the existing pleading. In the present case, having regard to the existing pleading, had an independent legal expert been called on the issue of what advice should have been given by a reasonably competent solicitor, opinion evidence as to any advice which should have been given at any time earlier than 19 May 2016 and by reference to facts not reflecting the universe of facts established or in existence as at 19 May 2016, would have been irrelevant and likely to have taken the defendant by surprise. I accept the defendant's submission that the proposed pleading does include a new cause of action within the meaning of r 376(4).
[29] However, in my consideration, the new cause of action arises out of substantially the same facts as a cause of action for which relief has already been claimed.
[30] In Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd,[6] I relevantly said:
[34]
"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', but not one involving 'too broad a brush', between the nature of the original claim and that to which it is sought to be amended. The question involves matters of 'impression', and 'degree'. The answer to the question is informed by policies underlying the applicable limitations statute. The words 'substantially the same facts' are not to be viewed as a 'straitjacket'. The rule countenances the introduction of some new facts in support of a new cause of action, without requiring precise similarity of factual circumstances.
[35]
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:
[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]
[31] In the present case, there is a change of focus to an earlier period of the retainer with elicitation of additional details. The new cause of action is directed to a different aspect of how the defendant is alleged to have given proper advice in the circumstances of the admitted retainer. The new cause of action gives specific content to the pleaded duty owed in the context of the retainer. It is not suggested that any further evidence in chief or disclosure is required by reason of the amendment. Adopting the comparison called for by the authorities and noting that the question involves matters of impression and degree, I find that the new cause of action is fundamentally connected with the existing story of the pleading and I am satisfied that it arises out of substantially the same facts.
[32] It is also necessary to consider whether it is appropriate to allow the amendment within the meaning of r 376(4)(a).
[33] The requirement in r 376(4)(a) is broad and not confined to questions of prejudice. In Menegazzo, Applegarth J relevantly said (footnotes omitted):[7]
[38]
"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."
[39]
[34] I am satisfied that there is a sufficient explanation for the amendments. The defendant has not relied upon any affidavit concerned with actual prejudice. To the extent that prejudice can be inferred, for my earlier reasons, I consider that any such prejudice can be addressed by case management considerations. I am satisfied that it is appropriate to grant lave to amend within the meaning of r 376(4)(a).
[35] To the extent that the proposed pleading raises a cause of action based upon any breach of contract occurring more than 6 years before the start of the proceeding, the relevant period of limitation in respect of any such cause of action, would not have been current as at the date the proceeding was started. Rule 376(4) does not apply to that extent.
[36] Pursuant to r 376(4) of the UCPR, I grant leave to the plaintiffs to file and serve the Fourth Further Amended Statement of Claim on the condition that to the extent that the proposed pleading raises a cause of action based upon any breach of contract occurring more than 6 years before the start of the proceeding, the defendant remains entitled to plead and rely upon any relevant limitations defence.
[18] The defendant did not rely upon any affidavit. It would appear that the defendant has interpreted the pleading, in a manner which is consistent with my finding as to its correct interpretation, namely that, properly construed, the pleading logically described a case about a failure to advise on 19 May 2016 by reference to facts existing or which had occurred as at 19 May 2016. In that regard, Mr Moy's proposed affidavit addresses the position from the perspective of what advice ought to have been provided as at 19 May 2016. There are then the statements to which I have earlier referred in the defendant's written opening and there is also the absence of any limitations plea in the defence.
[19] I accept that there may well have been room for conjecture about the true meaning of the pleading. That prospect was alluded to by counsel for the defendant on day three when the issue crystalised in an exchange with the court. Regrettably, despite the best efforts of the experienced lawyers and the management of the case by the court on the commercial list, the present case appears to be one where, in a relatively complicated facts case, there has lingered some degree of uncertainty arising out of the pleading of the plaintiffs' case in respect of breach.
[20] I have had regard to the statements of principle in Aon Risk ServicesAustralia Ltd v Australian National University[1] and to r 5 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR").
[21] The application to amend is made very late. However, I find that the application has not been made opportunistically as a result of any earlier forensic decision made by the plaintiffs. The explanation is that the experienced solicitor with the conduct of the matter understood, albeit mistakenly, that the pleading had sufficiently raised a case which the plaintiffs always intended to conduct and pursue at trial.
[22] The amendment is made in circumstances where the plaintiffs' solicitor has sworn to the effect that he has conducted the case on the basis that the plaintiffs' pleading has always included a case that the defendant had failed to advise or warn of risks in the course of the retainer in the period leading up to and including 19 May 2016. That understanding is significant for reasons in addition to providing an adequate explanation of the timing of the application. The explanation necessarily means that that the amendments, if allowed, would not require or justify any further evidence in chief from any of the plaintiffs' witnesses. The plaintiffs have apparently prepared for trial on the basis that it was an issue in the case that advice ought to have been given at earlier periods in the course of the retainer. There should be no outstanding disclosure from the plaintiffs.
[23] Mr Wechsel's evidence is at the point where the cross examination is finished and there is yet to be re-examination. On my understanding of the case and the issues presently raised and proposed to be made by the proposed pleading, any further cross examination of Mr Wechsel would be quite limited. I am satisfied that the effectiveness of any further proposed cross examination is not likely to have been materially undermined by the timing of the application to amend. The defendants will need to be given an adequate opportunity to consider what further cross examination, if any, is required and to consider whether any further proposed evidence from Mr Moy is required and, if so, to prepare that evidence.
[24] It is necessary to have regard to r 376(4) of the UCPR.
[25] In Borsato v Campbell,[2] McMurdo J provided the following classical explanation of the meaning of "cause of action" as it appears in r 376: