McQueen v Mount Isa Mines Ltd [2017] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION: McQueen & Anor v Mount Isa Mines Ltd & Ors; CMA Assets Pty Ltd & Anor v Mount Isa Mines Ltd & Ors [2017] QCA 259

PARTIES: In Appeal No 12902 of 2016: / SHAUN WILLIAM McQUEEN / In Appeal No 12910 of 2016: / CMA ASSETS PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 112 821 735 (first appellant) LEE WHALE (second appellant) v MOUNT ISA MINES LIMITED ACN 009 661 447 (first respondent) SHAUN WILLIAM McQUEEN (second respondent) IPA PERSONNEL PTY LTD ACN 060 472 666 (third respondent)

FILE NO/S: Appeal No 12902 of 2016 / Appeal No 12910 of 2016 / SC No 9066 of 2013

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeals

ORIGINATING COURT: Supreme Court at Brisbane – [2016] QSC 260 (Flanagan J)

DELIVERED ON: 3 November 2017

DELIVERED AT: Brisbane

HEARING DATE: 15 May 2017

JUDGES: Fraser and McMurdo JJA and Brown J

ORDERS: In Appeal No 12902 of 2016: / In Appeal No 12910 of 2016:

CATCHWORDS: LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – where Mount Isa Mines Ltd (MIM) brought an action against various defendants (the appellants) alleging breaches of contract and negligence – where MIM filed and served an amended statement of claim without first seeking leave to do so – where the appellants allege that the amended statement of claim added new causes of action which were out of time and for which leave was required – where the appellants applied to have various paragraphs of the amended statement of claim struck out with no liberty to re-plead – where the primary judge refused the application – whether the primary judge erred – whether the amended statement of claim pleaded new causes of action – whether “cause of action” has a different meaning under the Limitations of Actions Act 1974 (Qld) than under the Uniform Civil Procedure Rules 1999 (Qld) / LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – TORTS – GENERALLY – where the amended statement of claim pleaded additional loss – where the appellants contend that the causal link between the alleged tortious breach and the consequential loss was first pleaded in the amended statement of claim – where the appellants contend that the amended statement of claim added a new cause of action by pleading a different case on causation – whether the statement of claim pleaded material facts of the causal connection between the alleged negligence and the consequential damage – whether the additional facts pleaded in the amended statement of claim constitute new causes of action – whether the primary judge erred in finding that the amendments were particulars of causes of action already pleaded by the statement of claim / Civil Proceedings Act 2011 (Qld), s 16, s 16(2)(c), s 16(4) / Limitation of Actions Act 1974 (Qld), s 10 / Uniform Civil Procedure Rules 1999 (Qld), r r 375, r 376(1), r 376(4), r 765(2) / Allonnor Pty Ltd v Doran [1998] QCA 372, considered / Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited / Borsato v Campbell [2006] QSC 191, considered / Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited / Harris v Raggatt [1965] VR 779; [1965] VicRp 100, not followed / Murdoch v Lake [2014] QCA 216, cited / Sands v South Australia (2015) 122 SASR 195; (2015) 327 ALR 273; [2015] SASCFC 36, cited / The Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, cited / Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, considered / Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, cited

COUNSEL: In Appeal No 12902 of 2016: / S Couper QC, with M S Trim, for the appellants / T P Sullivan QC, with S J Armitage, for the first respondent / D A Savage QC, with J J Baartz, for the second and third respondents / In Appeal No 12910 of 2016: / D A Savage QC, with J J Baartz, for the appellants / T P Sullivan QC, with S J Armitage, for the first respondent / S Couper QC, with M S Trim, for the second and third respondents

SOLICITORS: In Appeal No 12902 of 2016: / Clyde & Co for the appellants / Carter Newell Lawyers for the first respondent / Moray Agnew Lawyers for the second and third respondents / In Appeal No 12910 of 2016: / Moray Agnew Lawyers for the appellants / Carter Newell Lawyers for the first respondent / Clyde & Co for the second and third respondents

FRASER JA: I agree with the reasons for judgment of Brown J and the orders proposed by her Honour.

McMURDO JA: I agree with Brown J.

BROWN J: This is an appeal from the decision of the Supreme Court on 15 November 2016 dismissing an application to strike out various paragraphs of an amended statement of claim (“ASOC”).¹

The first respondent, Mount Isa Mines Limited (“MIM”) filed the ASOC without first seeking leave to do so in proceedings BS9066/13 (“the proceedings”). The appellants, Shaun William McQueen (“McQueen”), IPA Personnel Pty Ltd (“IPA”), CMA Assets Pty Limited (Administrators Appointed) (“CMA”) and Lee Whale (“Whale”) are the defendants in the proceedings. The defendants all applied, inter alia, to have [26] to [29] of the ASOC struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) with no liberty to re-plead. Separate applications were filed on behalf of IPA/McQueen (“IPA appellants”) and on behalf of CMA/Whale (“CMA appellants”).²

The defendants contended that [26] to [29] of the ASOC added new causes of action which were out of time and for which leave had not been granted pursuant to UCPR r 376(4). MIM opposed the application and submitted that the amendments did not add new causes of action and therefore leave was not required. In the event that the court determined otherwise, MIM sought leave pursuant to UCPR r 376(4). The defendants opposed any such grant of leave pursuant to UCPR r 376(4) on the basis that the new causes of action did not arise out of the same facts or substantially the same facts as pleaded in the original statement of claim (“SOC”). Further, if the court determined that the new causes of action did arise out of the same or substantially the same facts, the defendants submitted it was otherwise inappropriate for the court to grant leave in the exercise of its discretion.

The primary judge found that [26] to [29] of the ASOC did not add new causes of action and that therefore MIM did not require leave to file the ASOC. His Honour further stated that even if he was wrong in this conclusion he would otherwise have granted leave to MIM to file the ASOC pursuant to UCPR r 376(4), on the basis that the amendments arose out of the same or substantially the same facts.³ His Honour was satisfied that it was appropriate to grant leave.

Although separate notices of appeal and submissions were filed by the appellants, the grounds of appeal do not differ significantly. At the hearing the CMA appellants were content to rely on the oral submissions of the IPA appellants. In simple terms, the appellants submit that the decision at first instance should be overturned and that [26] to [29] of the ASOC should be struck out on the basis that:

The learned primary judge erred in finding that the amendments were particulars of causes of action already pleaded. The appellants contend that the amendments added a new cause of action after the expiration of limitation periods;

The learned primary judge erred in concluding that, if the amendments added new causes of action, they arose out of the same facts or substantially the same facts in any event; and

The learned primary judge erred in concluding that leave would have been appropriate and failed to give sufficient weight to the general prejudice caused by delay, including MIM’s delay in commencing proceedings and briefing experts.⁴

Background

The facts underlying the proceedings were set out in the judgment below and are uncontentious for the purposes of this appeal.⁵ CMA entered into a contract with MIM to undertake certain works at the Mt Isa Mines lead, zinc and silver processing plant. McQueen was performing oxyacetylene cutting as part of the contractual works being undertaken by CMA at the processing plant. IPA hired McQueen to CMA for the purposes of CMA providing those contractual services to MIM. Whale, who was an employee of CMA, was nominated as a spotter, whilst McQueen was to carry out the oxyacetylene cutting in connection with contractual works. On 28 September 2007, the oxyacetylene cutting carried out by McQueen ignited a rubber lining in a feeder chute and hopper. Whale was not present in the immediate vicinity of the area where McQueen was carrying out this cutting. The fire spread to other parts of the surrounding infrastructure including conveyors 12, 55, 60, 65 and 801 and their supporting structures.

The SOC was filed by MIM on 25 September 2013, just prior to the expiration of the limitation period.

The SOC set out, inter alia:

that the business carried on by MIM included, inter alia, mining ore containing zinc, lead and silver, producing zinc and silver concentrates and refined zinc and selling the products and by-products;⁶

that MIM was in the process of undertaking a mine upgrade project known as the “Zinc Lead Concentrator No 2 Revamp Project”, referred to as “the Revamp Project” on the Site;⁷

that MIM’s mining and production processes were conducted on the Site. Those processes included transportation of ore to the Heavy Medium Plant where it was processed to recover lead and zinc in pre-concentrate form. The pre-concentrate lead and zinc was transported to the zinc/lead concentrator to extract lead, silver and zinc concentrates and to the lead smelter to be processed to produce lead bullion and lead dross by-product respectively;⁸

The likely consequences of significant damage being caused to the mining infrastructure used in the transportation, processing and production of lead concentrate, silver concentrate, zinc concentrate,⁹ lead bullion and lead dross bi-product which included:

the necessity to make good the damage caused;

the reorganisation of the mining transportation, processing and production systems whilst the damage was made good;

disruption to the mining, transportation, processing and production systems;

prevention or delay of normal maintenance programmes and planned optimisation projects; and

prevention of, or reduction in, the processing and production of the lead concentrate, silver concentrate, zinc concentrate, lead bullion and lead dross by-product and associated pecuniary losses.

That MIM had entered into an agreement with CMA in September 2007 in connection with the Revamp Project;¹⁰ and

The consequences of the fire in terms of the damage which it caused.

Paragraphs [23] to [25] of the SOC pleaded damages in the form of costs associated with the rectification of physical infrastructure.

Paragraphs [26] and [27] of the SOC identified three categories of damages alleged to have been caused by the fire, characterised by MIM as:

Loss associated with the adverse effect on ore throughput rates and metal production in MIM’s lead, zinc and silver processing plants until normal production was restored after certain reinstatement work was completed;

Loss associated with the adverse affect on ore throughput rates and production by prevention or delay of implementing normal maintenance programs and optimisation projects; and,

Loss associated with mitigation measures that were undertaken by MIM.

The appellants dispute that the loss referred to in subparagraph (b) above was adequately pleaded.

Paragraph [28] rather inelegantly set out the “overall result”.

The amount originally claimed by MIM was pleaded in the following terms:

“29 MIM has suffered loss and damage in consequence of the matters pleaded in [26] to [28], the proper measure of which it estimates to be not less than $61.25 million.

Particulars

The methodology by which MIM has estimated its loss has been to calculate the net present value of the net revenue of the mine over the life of production (i.e. to 2026) had no Fire Incident occurred and to deduct a calculation of the net present value of the net revenue of the mine over the life of production having regard to the disruption to production caused by the Fire Incident.

The proper valuation of the amount of loss and damage suffered by MIM is a matter for expert opinion evidence. MIM will provide further particulars of the manner of calculation of its loss when its expert opinion evidence is finalised.”

The pleading alleged breaches of contract by CMA which included breaches of implied warranties arising out of the Trades Practices Act 1974, negligence by Whale and McQueen and negligence by IPA. Damages were therefore claimed for breaches of both contractual terms and tortious duties of care. The damages sought against the various defendants were the same.

ASOC

The key complaint of the appellants in this appeal is that the amendments made to [26] to [29] added a new cause of action by pleading a different case on causation, which was not referred to in [28] of the SOC. In particular it is contended that the allegation that MIM was prevented or delayed from carrying out works necessary to achieve a commercial aim of increasing zinc/lead ore throughput by the second half of 2008 is a new allegation and a different case on causation.¹¹ The IPA appellants frame the argument slightly differently, contending that the SOC did not plead any material facts in relation to the alleged causal connection between the fire and the claimed consequential loss and the pleading of those facts in the ASOC necessarily constitutes a new cause of action.¹²

It is appropriate to set out, at least in part, some of the key amendments in the ASOC.

Paragraph [9(d)] was amended to provide:

“(d) prevention, disruption or delay of normal maintenance programmes, repairs, improvements and planned optimisation projects including the Revamp Project;”

Paragraphs [26] to [29] of the ASOC were substantially amended. They provide as follows:

“26. The damage to the mining infrastructure caused by the Fire Incident and the need to carry out the Reinstatement Works to make good the damage also had the result that:

ore could not be fed via the conveyor transportation system incorporating conveyors 12, 55, 60, 65 and 801 to the HMP;

ore feeding from the HMP to the grinding circuit (including rod mills) via the conveyor transportation system incorporating conveyors 12, 55, 60, 65 and 801 was prevented;

ore feeding from the HMP and grinding mills to the concentrator via the conveyor transportation system incorporating conveyors 12, 55, 60, 65 and 801 was prevented;

(ca)the SAG Mill circuit was unable to be operated on 28 and 29 September 2007;

(cb)the ability to feed Black Star and excess crushed George Fisher ore to the HMP was prevented, or alternatively, significantly impeded between 28 and 29 September 2007 and 2 November 2007 because the means of transporting the the [sic] zinc/lead concentrate generated from the HMP to the rod and ball mill grinding circuits via the conveyor transportation system incorporating conveyors 60 and 801 was damaged and not able to [be] operated;

(cc)the feed capacity of the zinc/lead concentrator was reduced to:(i)the throughput which could be fed through the SAG Mill circuit between 30 September and 2 November 2007;(ii)limited quantities of ore beneficiated through the HMP and transported to the rod and ball mill grinding circuits by alternative means;

(cd)it was necessary to process solely George Fisher ore between 28 September and 2 November 2007 in order to maximise the limited production opportunities available during that period by the utilisation of the SAG Mill and limited operation of the HMP;

(ce)normal production capability of the zinc/lead concentrator was not restored until 12 November 2007, allowing for a ramp up of production over a period of nine days following completion of the Reinstatement Works on 2 November 2007;

ore throughput rates and metal production were adversely affected due to:

disruption to the Site, limited availability of the production/processing plant and mining operations between 28 September 2007 and 12 November 2007 (being from the occurrence of the Fire Incident until the restoration of normal production capability);

Further, and in addition to the adverse effect pleaded in sub-paragraph (d)(i) above, prevention, disruption and, or alternatively, and delay of normal maintenance programmes, repairs and improvement optimization projects (including those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) for a period of at least 35 days.

26AThe prevention, disruption and, or alternatively, delay of normal maintenance, repair and improvement programmes and optimization projects (and, in particular, those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) for a period of at least 35 days pleaded in [26(d)(ii)] above occurred by reason of the following matters:

(a) between January 2007 and 27 September 2007, the overall performance of zinc/lead concentrator throughput and metal production was affected by the following adverse operational and plant performance issues:

(i) significant periods of unplanned downtime as a result of frequent breakdowns and plant availability due to poor plant design, maintenance and operation affecting many parts of the zinc/lead concentrator and, in particular:

A.the SAG Mill;

B.the HMP;

C.the dewatering section of the zinc circuit incorporating the zinc thickener and zinc filter;

D.the tailings disposal system;

E.the flotation system;

(ii)the absence of sufficient metallurgical data in relation to the technical performance of blended Black Star and George Fisher ore bodies in the Mount Isa zinc/lead concentrator flow sheet process;

(iii)inefficient operation of the zinc/lead concentrator;

(iv)deficiencies in the technical processes and operations necessary to achieve optimal lead/zinc concentrator production capability.

(“the Adverse Operational and Plant Performance Issues”);

(b) as a result of the Adverse Operational and Plant Performance Issues, the zinc/lead concentrator throughput and metal production rates were significantly reduced as follows:

(i) between January – May 2007:

A. the flotation feed rates were 11,500 tonnes per operational day on average in circumstances where they should have been at an average of 13,000 – 16,000 tonnes per operational day;

B. the HMP throughput was 11,800 tonnes per operational day on average in circumstances where it should have been operating at an average of 14,000 – 15,000 tonnes per operational day;

C. the SAG Mill throughput was 4,200 tonnes per operational day on average in circumstances where it should have been operating at an average of 5,000 – 5,500 tonnes per operational day;

D. zinc metal production was 675 tonnes per operational day on average circumstances where it should have been an average of 850 – 950 tonnes per operational day;

E. zinc concentrate production was 1,330 tonnes per operational day on average in circumstances where it should have been an average of 1700 – 1900 tonnes per operational day;

…

(c) further, between January 2007 and 27 September 2007 and, as a result of the Adverse Operational and Plant Performance Issues:

(i) the availability, utilisation and run time rates of the SAG Mill circuit and HMP circuit were inconsistent;

(ii) the SAG Mill circuit and HMP circuit regularly failed to meet operational capacity and targets;

(d) as at 27 September 2007:

(i) significant maintenance, repair, upgrade and investigation works implemented to urgently address the Adverse Operational and Plant Performance Issues had been completed, remained in progress, or alternatively, had been planned;

(ii) a significant proportion of the available MIM personnel resources were engaged in:

A. operating the zinc/lead concentrator;

B. implementing critical maintenance, repairs and improvements to the zinc/lead concentrator plant and equipment in order to urgently improve the overall performance of zinc/lead concentrator throughput and metal production;

C. conducting investigations and collecting metallurgical data in order to identify adjustments to the process flow sheet necessary to improve the metallurgical performance of the zinc/lead concentrator;

(e) immediately following the occurrence of the Fire Incident, a significant proportion of the available MIM personnel resources were redirected to:

(i) assessing the damage caused by the Fire Incident;

(ii) planning and undertaking the Reinstatement Works;

(iii) ascertaining methods of continuing (to the extent reasonably possible) throughput to the zinc/lead concentrator whilst the Reinstatement Works were being undertaken in order to maximise throughput and metal production notwithstanding the operational impact caused by the Fire Incident damage;

(iv) implementing identified alternative methods of achieving the maximum possible throughput to the zinc/lead concentrator whilst the Reinstatement Works were being undertaken, and, in particular, the erection and operation of temporary conveyors to feed the rod and ball mills and, to a limited extent, the HMP;

(f) as a result of the immediate redirection of a significant proportion of the available MIM personnel resources, implementation of critical maintenance, repairs and improvements to the zinc/lead concentrator plant and equipment (and, in particular, those works necessary to achieve the commercial gain of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) was prevented, disrupted and, or alternatively, delayed between 28 September 2007 and, at least, 12 November 2007;

(g) as a result of the necessity to feed only George Fisher ore to the zinc/lead concentrator as a consequence of the Fire Incident damage and immediate redirection of a significant proportion of the available MIM personnel resources:

(i) the conduct of investigations and collection of metallurgical data in relation to the normal processing of blended Black Star and George Fisher ore was prevented and, or alternatively, delayed between 28 September 2007 and (at least) the restoration of normal production capability on 12 November 2007;

(ii)the conduct of numerous operational tests of the zinc/lead concentrator performance under normal processing of Black Star and George Fisher blended ore conditions which were critical for the implementation of the repairs and improvement optimization projects (and, in particular, those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) was prevented, or alternatively, delayed between 28 September 2007 and (at least) the restoration of normal production capability on 12 November 2007;

(h) immediately prior to the Fire Incident, the SAG Mill required critical maintenance and repair works to improve its performance and availability rates;

(i) as a result of the Fire Incident and the necessity to achieve maximum feed to the zinc/lead concentrator in the absence of the HMP, the critical maintenance and repair works to the SAG Mill:

(i) were not able to be undertaken until the conclusion of the Reinstatement Works and the resumption of normal operational capacity;

(ii) were not able to be undertaken until a shutdown of the SAG Mill could be scheduled;

(iii) were undertaken during a shutdown of the SAG Mill which occurred between 18 November 2007 and 4 December 2007;

(iv) in the premises of (i) – (iii) above, were prevented and, or alternatively, delayed;

(j) had the Fire Incident not occurred, MIM would have had the opportunity to undertaken the required critical maintenance and repair works to the SAG Mill prior to the shutdown which occurred between 18 November 2007 and 4 December 2007;

(k) a loss of productivity and availability of the pre Fire Incident MIM personnel resources was experienced from 12 November 2007 until February 2008 due to:

(i) fatigue suffered as a result of working the additional work demands necessitated by the need to undertake the Reinstatement Works as a matter of urgency by maintenance of 24 hour shifts;

(ii) the occurrence of the Christmas holiday period shortly after the restoration of normal production capability on 12 November 2007;

(iii) the necessity of accommodating rest, recreation and leave entitlements owed to a significant proportion of the available MIM personnel resources following the completion of the Reinstatement Works;

(l) the full quota of MIM personnel necessary to undertake normal maintenance programmes, repairs and improvement optimization projects (including those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008), was not re-instated following the Fire Incident until, at least, February 2008.

26B. Between December 2007 and February 2009, the overall performance of zinc/lead concentrator throughput and metal production improved.¹³

…

26C. By reason of the matters pleaded in 26A above and, as a result of the Fire Incident and its consequences:

(a) the achievement of the improvements of the overall performance of zinc/lead concentrator throughput and metal production pleaded in 26B above were disrupted and delayed in circumstances where such improvements would have been achieved at least 35 days earlier had it not been for the Fire Incident;

(b) the HMP and SAG Mill ore throughput required to meet the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008 was disrupted and delayed such that it was not achieved as a matter of routine until, at least, in or about February 2009 in circumstances where the required HMP and SAG Mill ore throughput would have been achieved at least 35 days earlier had it not been for the Fire Incident.

…

27A. Further, in order to mitigate its losses and to ensure sufficient lead concentrate was available to maximise lead smelting operations (to the extent possible) whilst the Reinstatement Works of uncertain duration were being undertaken, MIM purchased a quantity of lead concentrate from third parties.

The overall result was that:

the zinc/lead concentrator throughput was reduced as pleaded in [26(ca)] – [26(d)(i)] above;

the quantity of contained (and recovered) zinc, lead and silver was reduced as pleaded in [26(ca)] – [26(d)(i)] above;

feeding ore from the temporary conveyor installed in the HMP to the rod and ball grinding mills required rehandling;

throughput in the grinding section was reduced;

HMP feed and rod and ball mill grinding circuit feed rates were significantly reduced from 28 September 2007 until completion of the Reinstatement Works and until normal production capability was restored on 12 November 2007 following a ramp up period of nine days following completion of the Reinstatement Works as pleaded in [26(ca)] – [26(d)(i)] above;

MIM incurred additional costs associated with:

The installation, operation and disassembly of the temporary conveyors pleaded in [27] above the previous paragraph;

rehandling of ore fed through the HMP which then had to be stockpiled on the ground as it could not be fed directly to the grinding circuit via the conveyor transport system;

hauling of ore normally fed to the HMP to the semi autogenous grinding mill (also known as the “SAG Mill”);

the necessity to stockpile ore mined but not fed at the usual run of mine rate to the mills;

loss of MIM produced lead concentrate resulted in loss of feed to the lead smelter and, as a consequence, to loss of lead bullion (and dross) production and sales.by reason of the matters pleaded in [26(ca)] – [26(d)(i)] above;

MIM incurred additional costs as a result of the necessity to purchase and smelt lead concentrate from third parties to ensure enable lead smelting was able to be maximised to the extent possible to continue (at a reduced rate) whilst the Reinstatement Works of uncertain duration were being undertaken. as pleaded in [27A] above;

loss of zinc concentrate resulted in a loss of zinc concentrate sales by reason of the matters pleaded in [26(ca)] – [26(d)(i)] above;

the implementation, or, alternatively, completion of normal maintenance programmes, repairs and improvement optimization projects (and, in particular, those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) was prevented, disrupted and, or alternatively, delayed for a period of at least 35 days by reason of the matters pleaded in [26(d)(ii)] and [26A] - [26C] above;

29. MIM has suffered loss and damage in consequence of the matters pleaded in [26] to [28], the proper measure of which it estimates to be not less than $61.25 million$68,875,963.

Particulars

The methodology by which MIM has estimated its loss has been to calculate the net present value of the net revenue of the mine over the life of production (i.e. to 2026) had no Fire Incident occurred and to deduct a calculation of the net present value of the net revenue of the mine over the life of production having regard to the disruption to production caused by the Fire Incident.

The proper valuation of the amount of loss and damage suffered by MIM is a matter for expert opinion evidence. MIM will provide further particulars of the manner of calculation of its loss when its expert opinion evidence is finalised.

(c) Full particulars of the losses and method of calculation of the losses pleaded in [28(a) – (e)], [28(g)] and [28(i) – (j)] are contained in the expert report of Peter Weldon (Weldon Matthews) dated 25 June 2015;

(d) The methodology by which MIM has estimated its losses pleaded in [28(a) – (e)], [28(g)] and [28(i) – (j)] is as follows:

(i) Calculation of the manner in which operating results from the Fire Incident date to the projected end of mine life (2027) were changed by the Fire Incident as a result of alterations to the timing of processing and production by reference to:

A. the projected plant feed that would have been achieved during 2007 after the Fire Incident;

B. the manner in which the zinc/lead concentrator mill feed in 2008 and thereafter would have changed had the Fire Incident not resulted in an (at least) 35 day delay in the implantation, or alternatively, completion of normal maintenance programmes, repairs and improvement optimization projects (and, in particular, those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008);

C. a comparison with the projected feed in the absence of the Fire Incident with the projected actual feed (given the occurrence of the Fire Incident) to ascertain the increase or decrease for any period from the Fire Incident to the expected end of mine life in 2027;

(ii) Deduction of the value of costs saved as a result of the Fire Incident and alterations to the timing of processing and production;

(iii) Calculation of the net present value of the net losses suffered as at the date of the Fire Incident as a result of the alterations to the timing of processing and production caused by the consequences of the Fire Incident;

(e) As a consequence of the Fire Incident:

(i) the throughput of ore fed to the zinc/lead concentrator was reduced by 326,792 tonnes between the date of the Fire Incident and the end of November 2007;

(ii) the quantity of MIM lead concentrate fed to the lead smelter was reduced by 16,728 tonnes between the date of the Fire Incident and the end of November 2007;

(iii) the implementation, or alternatively, completion of the normal maintenance programmes, repairs and improvement optimization projects (and, in particular, those works necessary to achieve the commercial aim of increasing the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum by the second half of 2008) was delayed for a period of (at least) 35 days;

(f) Applying the methodology pleaded in sub-paragraph (d) above and the matters particularised in sub-paragraph (e) above, the net present value of the net revenue loss as at the date of the Fire Incident was in the sum of $60,886,836 calculated as follows:

(i) Loss of lead concentrate revenue $38,892,371

(ii) Loss of zinc concentrate revenue $42,211,031

(iii) Subtotal $81,103,403

(iv) Less: Saved Variable Costs Mining $6,582,752 Concentrator $3,920,814 Smelter$1,534,473 Transportation$6,362,790 Royalties$1,815,738 $20,216,566

Mining $6,582,752

Concentrator $3,920,814

Smelter $1,534,473

Transportation $6,362,790

Royalties $1,815,738

(v) Net Present value of profit loss

as at the date of the Fire Incident $60,886,836

(g) The additional costs incurred as a result of the early purchase of lead concentrate from third parties to ensure lead smelting was able to be maximised to the extent possible whilst the Reinstatement Works of uncertain duration were being undertaken and as pleaded in [28(h)] above was in the sum of $7,111,681. Full particulars of the loss pleaded in [28(h)] above are contained in the expert report of Peter Weldon (Weldon Matthews) dated 25 June 2015;

(h) MIM incurred costs in the sum of $877,445 (excluding GST) in connection with the installation, operation and disassembly of the temporary conveyors pleaded in [28(f)(i)] above as itemised in the schedule annexed to this pleading and marked Annexure AA. The total costs of $877,445 (excluding GST) incurred by MIM were fair and reasonable. MIM relies upon the report of Mr Gary Thompson, Quantity Surveyor (Mitchell Brandtman) dated 19 December 2014.

Preliminary Issue

At the hearing of the appeal, the appellant raised complaints about the inadequacy of the pleading in [29] of the ASOC and also contended it was inconsistent with the expert report of the first respondent.¹⁴ Those complaints were not raised in the court below, nor were they raised in the notice of appeal.¹⁵

An appeal from an interlocutory decision is brought by way of appeal.¹⁶ It is an appeal in the strict sense, the question being whether the judgment at first instance was correct when delivered. The Court of Appeal may only give such judgment as ought to have been made at the original hearing. In the present case, the appellants did not raise any basis upon which this Court should conclude that it is in the interests of justice to consider the additional complaints sought to be raised in respect of [29] of the ASOC. Indeed it would be contrary to the interests of justice to permit the appellants to raise new complaints about the adequacy of the pleading of [29]. If the appellants had raised that complaint in the court below, the first respondent would have had the opportunity to consider such criticisms and if necessary propose an amendment to the pleading to remedy the complaint.¹⁷

I am not satisfied that there is any circumstance warranting a consideration by this court of the additional matters sought to be raised upon appeal in relation to the pleading of [29] of the ASOC and accordingly I decline to do so.

Contentions

The appellants contend that there was no pleading in the SOC of the causal link between the fire and the claimed consequential loss.¹⁸

The appellants point to the following features to support their contention that the amendments in the ASOC plead a new cause of action:

The SOC made no reference in [28] to MIM being prevented or delayed from carrying out works necessary to achieve a previously undisclosed commercial aim of increasing zinc/lead ore throughput of the zinc/lead concentrate to 8 million tonnes per annum by the first half of 2008 for a period of at least 35 days;¹⁹

The SOC in [28(b)] pleaded the “quantity of contained (and recovered) zinc was reduced”, such that there was no allegation of loss of or delay in sales of zinc which is now alleged in the ASOC;²⁰

With respect to both zinc and lead, there were no allegations in the SOC of how long the delay was, how much production was lost, what sales were lost, who the purchasers would have been or at what price the zinc and lead would have been sold or otherwise how the reduced production led to the monetary loss to establish a causal link between the fire and loss alleged in [29] of the ASOC of “not less than $61.25m”;²¹

No material facts were pleaded in [29] to support the loss claimed in terms of the net revenue of the mine over the life of production in the two scenarios particularised in (a) of the particulars to [29];²² and,

Paragraph [29] of the SOC has been essentially deleted and the loss and damage alleged to have been suffered by MIM in consequence of the matters in [26] to [28] of the SOC re-pleaded with a different formulation of loss including by reference to the expert report of Mr Weldon.²³

Counsel for CMA framed the dispute in the following way:

“The heart of the debate is the change in what the appellant’s characterised as the cause or causes of action based upon the change in the plea of causation on the pleading and the change in the plea of quantification of damage.”²⁴

The central plank of the appellants’ argument is that “cause of action” in r 376(4) has a broader meaning than “cause of action” as it is understood in relation to the Limitation of Actions Act 1974 (Qld) by which it is determined whether a cause of action has accrued. They contend it extends to the pleading of new material facts which raise “a new set of ideas”, a different head of loss or new facts which support the claim for relief.²⁵ Thus on the appellants’ argument, the pleading of the loss of silver revenue in [28(b)] as opposed to loss of zinc or lead revenue constitutes a new cause of action.²⁶ Indeed the appellants argued that lost or impeded capacity from the physical damage caused to the infrastructure resulted in different causes of action under r 376(4) UCPR depending on whether the consequent economic loss was referrable to silver production, or lead or zinc.²⁷ In this regard the appellant particularly relied upon the judgment of McPherson JA in Allonnor Pty Ltd v Doran²⁸ and Borsato v Campbell.²⁹

MIM contends that the case pleaded in the SOC and the ASOC remained the same. A fire destroyed or damaged the transportation system within the processing plant which necessitated certain reinstatement works to be undertaken. As a result of those two matters, that is, the physical damage and need to repair the physical damage, there was an adverse effect on MIM’s ability to process ore and a reduction of the production of various products as pleaded in [26(d)(i)] and [26(d)(ii)] of the SOC. That reduction in production of the various products also resulted in MIM suffering further loss. The methodology for calculating the loss in [29] ASOC remains unchanged.³⁰

MIM asserts that, as was found by his Honour at first instance, the additional facts pleaded in the ASOC do not constitute the addition of new causes of action, but rather, further particularise claims that had already been made. MIM submits that no new case as to causation has been pleaded in the ASOC on the basis that the fire is the cause of all the loss claimed.³¹

MIM submits that [26(d)] and [29] of the SOC pleaded the causal link between the fire incident and the necessary reinstatement works and that loss or damage was suffered due to the relevant reduction of materials.³² Thus, there is no new loss claimed by the SOC.

According to MIM, even if the new amendments were taken to have pleaded that new damage and loss were caused by the fire, such amendments would not constitute a new cause of action. MIM contends that an amendment that only pleads additional losses that were also caused by the already pleaded breaches of duty, does not include a new cause of action. In that regard, MIM noted that it had pleaded that consequential economic loss had been suffered by way of mitigation, which was not the subject of any criticism.³³ MIM contends that there is one indivisible cause of action that has been pleaded for negligence and contract, arising out of a series of breaches which remain unchanged.³⁴

MIM relies on the case of Sands v South Australia³⁵ as authority for the proposition that there is one single, indivisible cause of action for each duty and breach of duty pleaded. MIM further submits that the cause of action for negligence arises when damage is first suffered and any further damage suffered does not constitute a “new” cause of action.³⁶ Thus, if amendments are made to a claim for damages altering the amounts claimed or seeking additional damages to the loss said to have been caused by the breach, this does not constitute a new cause of action. In this regard MIM relies on the decision of Bennett v Australian Capital Territories³⁷ and two Canadian decisions, Ozipko v Massey-Ferguson Ltd³⁸ and Western Canadian Place Ltd v Con-Force Products Ltd.³⁹

Thus the pleading of additional loss or even a new head of damage does not in the context of the present action constitute a new cause of action.⁴⁰

New Cause of Action

The success of the appeal largely depends on the appellants’ contention that “cause of action” in r 376(4) bears a broader meaning than that which applies under limitation statutes and in particular in the Limitation of Actions Act,⁴¹ when determining whether a cause of action has accrued and the relevant limitation period has expired. There are two aspects to this argument: first, whether as a matter of construction of r 376(4) that is correct and, second, what is the meaning of “cause of action” in any event.

Cause of action in r 376(4) UCPR

Section 16 of the Civil Proceedings Act 2011(Qld)⁴² provides for the power of the Court to order an amendment be made or to grant leave to make such amendments. It provides that:

“16 Amendment for new cause of action or party

This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

The court may order an amendment to be made, or grant leave to a party to make an amendment, even though—

the amendment will include or substitute a cause of action or add a new party; or

the cause of action included or substituted arose after the proceeding was started; or

a relevant period of limitation, current when the proceeding was started, has ended.

Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.

This section—

applies despite the Limitation of Actions Act 1974; and

does not limit section 103H.”

(Underlining added)

By s 16 of the Civil Proceedings Act, Parliament has provided for an exception to be made, inter alia, to the strict operation of the Limitation of Actions Act.⁴³ That is made clear by s 16(4) of the Civil Proceedings Act and s 16(2)(c) which refers to a relevant period of limitation having ended.⁴⁴ In the present case, the Limitation of Actions Act provides that actions shall not be brought after the expiration of, relevantly in the case of contract and tort, six years from the date on which the cause of action arose.⁴⁵

In accordance with s 16(3) of the Civil Proceedings Act, the circumstances in which the rules of court provide for amendments to be made are set out in UCPR r 375 and r 376.

Rule 375 of the UCPR provides:

“375 Power to amend

At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.

The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.

This rule is subject to rule 376.”

Relevantly r 376(1) and (4) provide as follows:

“376 Amendment after limitation period

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.

…

The court may give leave to make an amendment to include a new cause of action only if—

the court considers it appropriate; and

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.”

While r 376(1) refers to “proceeding” rather than “cause of action” it is plain that the reference to the “relevant period of limitation” is necessarily referring to a “cause of action” which is the subject of the relevant limitation period in the proceeding. This is supported by the fact that r 375(2) refers to the court granting leave to make an amendment, even if the effect of the amendment “would be to include a cause of action arising after the proceeding started.” The rule is subject to r 376 which is specifically directed to amendments by which a new cause of action is sought to be added after the expiry of a relevant period of limitation.

By expressly referring to the power to permit amendments notwithstanding the expiration of a limitation period, it is evident that the legislative intent of s 16 of the Civil Proceedings Act is that “cause of action” in the Civil Proceedings Act has the same meaning as “cause of action” under the Limitation of Actions Act. Consistent with this interpretation, r 376 applies where leave for amendment is sought after the relevant period of limitation has expired.

In support of their contentions, the appellants relied upon the fact that the term “cause of action” may have different meanings in different contexts.⁴⁶ While that may be so, the context in which “cause of action” is used in r 376 makes it clear that it does not refer to a meaning other than that which it has under the Limitation of Actions Act. Nor is any different view supported by authority.

The appellants’ contention is misconceived as it fails to recognise that the limitation on adding a new cause of action in r 376(4) only arises where the time for instituting proceedings in respect of the cause of action has expired.

Meaning of “cause of action”

“Cause of action” is an undefined term. In the context of limitation statutes, the courts have had regard to its meaning at common law.⁴⁷ At common law, a cause of action accrues once the plaintiff is able to issue a statement of claim capable of stating every existing fact which is necessary for the plaintiff to prove to support his or her right to judgment.⁴⁸

The appellants relied particularly upon the decision of PD McMurdo J⁴⁹ in Borsato v Campbell & Ors⁵⁰ (“Borsato”) in support of their contention that it refers to material facts pleaded to claim the relief sought. In Borsato his Honour stated that:⁵¹

“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: see eg Allonnor Pty Ltd v Doran per McPherson JA.” (footnote omitted)

PD McMurdo J further stated at [8], inter alia, of the definition of “cause of action”:

“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). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland subsequently endorsed as a ‘fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended’. 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. Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Saw Milling No 1 Pty Ltd & Ors v State of Queensland [[2003] QCA 311].”

In his analysis, PD McMurdo J stated that:

“[15] Then there is a difference in the new case which is relevant for the assessment of damages. The existing case, that of negligent surgery, involves a loss measured by the difference between the plaintiff’s actual position and that which he would enjoy, had he had the benefit of the surgery but not the detriment from the severance of the nerve. Under the failure to warn case, his loss would be the difference (if any) between his actual position and the position in which he would be, had he been warned. His pleading does not seem to identify a difference. But assuming that his case, notwithstanding the terms of his pleading, is that he would not have gone ahead with the surgery, then his position (with a proper warning) would be that he would have avoided the complication but he would not have had the benefit of the surgery. The new case then is likely to involve a different assessment of damages, because the damage was different.

[16] Accordingly, the new case involves a different breach with a different consequence. In my conclusion it is not a further particularisation of the cause of action previously pleaded; it is a new cause of action. It cannot be pleaded without a grant of leave under r 376(4).”

Neither PD McMurdo J’s comments in Borsato nor the comments of McPherson JA in Allonnor Pty Ltd v Doran support the broader meaning of “cause of action” contended for by the appellants.

Cooke v Gill,⁵² cited by PD McMurdo J in Borsato, was not a case involving a limitation statute however its definition of the term “cause of action” has been adopted in cases dealing with limitation statutes.⁵³ However, as PD McMurdo J noted it has not been applied literally such that the addition of any material facts may be said to bring about a fresh cause of action.⁵⁴ As his Honour in Borsato made clear, there is sometimes an unclear dividing line between facts which involve a new cause of action and those which are simply further particulars of the cause already claimed.

In Borsato, the amendments were analysed by reference to the facts pleaded to support the elements of a cause of action in negligence, not by reference to some broader meaning of “cause of action”. The general duty of care pleaded in the statement of claim did not alter. However, his Honour did not consider that was determinative.⁵⁵ His Honour particularly examined the amendments which pertained to the elements of breach and the consequent damage caused because a different breach was pleaded by the amendments.

In Borsato, PD McMurdo J found that the amended case did plead a new cause of action on the basis that it pleaded a different breach which gave rise to a different assessment of damages,⁵⁶ from that already alleged. The amendments pleaded a breach of the duty to warn as opposed to a breach of the duty of care as to the performance of surgery⁵⁷ which was pleaded originally. His Honour found the amended case involved “a different breach with a different consequence”.⁵⁸ In substance it was such a different case from that pleaded originally involving the negligent performance of surgery that it could not be said that the amendments were merely further particularisation of the case already pleaded. The element of breach is an essential element of an action in negligence. It is unremarkable therefore that a different breach which arose at a different time and gave rise to different damage was characterised as a new cause of action. His Honour did not find that any change in a pleading amending the damages claimed constitutes a new cause of action. The decision provides no support for the appellants’ contention.

McPherson JA did not adopt any different meaning of “cause of action” in his analysis of whether there was a new cause of action in Allonnor Pty Ltd v Doran.⁵⁹

Subsequent authorities have not interpreted Borsato any differently. For example, the Court adopted a similar approach to PD McMurdo J in Wolfe v State of Queensland,⁶⁰ finding that the amendment pleaded a quite different breach of duty from that pleaded in the original statement of claim and that it constituted a new cause of action.

A similar approach was approved in Westpac Banking Corporation v Hughes,⁶¹ where Chesterman JA at [26] and [27] referred with approval to the following passage of the primary judge that:

“Rule 376(4) identifies a test for the grant of leave to amend a pleading where the amendment will add a cause of action which may be described as ‘new’. One of the purposes of this provision is to distinguish between cases where the amendment introduces a ‘new’ cause of action, and those where this does not occur… It seems to me unlikely that the test found in this provision was intended to apply to all cases where the amendment would change the facts alleged: pleadings are primarily concerned with the allegation of material facts. For the purposes of r 376(4), it seems to me that a cause of action is not ‘new’, if it is reasonably apparent from a party’s pleadings, prior to the amendment, that the party sought to raise that cause of action. As the passage from Borsato indicates, a cause of action is not new in this context simply because not all of the material facts which must be established for the plaintiff to succeed have already been pleaded.” (emphasis added)

P Lyons J in Murdoch v Lake⁶² also supported the view that “cause of action” in r 376 has the same meaning as it bears under limitation statutes.

The appellants also referred to Harris v Raggatt⁶³ in support of their contention that a broad meaning of “cause of action” under r 376(4) UCPR should be adopted. That case however was dealing with the application of the rule in Weldon v Neal⁶⁴ which no longer applies in Queensland.⁶⁵ To the extent that his Honour was advocating a broader meaning of “cause of action” from that which has been applied under limitation statutes it should not be followed.

The IPA appellants submit that if the broader meaning of “cause of action” was not adopted under r 376(4) it would have the effect of treating the substantial failure to plead material facts in the SOC as being of no consequence. That proposition is misconceived for two reasons.

First, a party cannot escape the effect of UCPR r 376(4) by pleading broad allegations such that technically any amendment would not add a new cause of action. It is well established that the court, in assessing whether a new cause of action is pleaded, will take account of the “vacuous character” of pleadings and that in its original form the pleadings would have been liable to be struck out.⁶⁶

Secondly, in the event that a statement of claim is substantially amended but a new cause of action is not added, a party who is prejudiced by such amendments is not without recourse. It may apply to disallow those amendments pursuant to r 379 of the UCPR. That provision provides the court with a broad discretion and factors of delay and prejudice will be relevant in considering any such application, consistent with the principles in Aon Risk Services Australia Ltd v Australian National University.⁶⁷

No error

The primary judge rejected the argument that Borsato was authority for the proposition that amendments relevant to a different assessment of damages or new consequences flowing from a breach necessarily constitute the addition of a new cause of action.⁶⁸ His Honour stated that his Honour’s reference in Borsato at [15] to a different assessment of damages was for the purpose of demonstrating that the new duty of care pleaded and the breach of that duty constituted an additional cause of action. That is plainly correct.

Accordingly, I reject the contention that “cause of action” in r 376(4) UCPR bears any different meaning than “cause of action” has in the context of the Limitation of Actions Act⁶⁹ and that any material facts supporting the relief claimed constitute a new cause of action. There was no error by his Honour in finding the amendments did not plead a new cause of action by reference to the meaning of “cause of action” as contended for by the appellants.

As the appellants’ argument was essentially premised on their contention that the amendments constituted a new cause of action by reference to the material facts pleaded to support the relief claimed⁷⁰ the rejection of that contention is sufficient to dispose of the appeal. However, I will turn to the more specific errors raised in the appeal.

Other Errors Contended by the Appellants

The appellants submit that the primary judge erred in considering that the amendments did not alter the alleged causal connection between the breach of contractual and tortious duties and the damages sought and that the amendments were a particularisation of causes of action already pleaded.

In particular the appellants claim that it was not until the ASOC had been filed, that a causal link between the events after the fire incident and the consequential loss was pleaded.

The complaint is only relevant to the pleading of negligence not the pleading of contract.

His Honour properly identified the differing requirements for pleading a cause of action in negligence and tort as the cause of action pleaded against the IPA appellants was in negligence whereas contractual breaches were alleged against the CMA appellants. In the case of negligence his Honour properly identified that the essential elements as being the duty of care, breach of the duty and injury caused by that breach. The cause of action first accrues when damage is caused by the breach whereas in contract the cause of action accrues upon a breach of contract.⁷¹

As his Honour found quite correctly, a cause of action in respect of which causation of loss is an essential element requires the pleading of the material facts which are said to give rise to the causal connection. Negligence is such an action.⁷² An action for breach of contract is not.

The contention of the appellant is that the amendments by which it says the claiming of consequential loss from the fire became apparent added a new cause of action. The appellants place particular reliance on the identification of the Revamp Program as an “optimisation Project” pleaded in [26(d)] of the ASOC. The ASOC pleaded that the commercial aim to increase the zinc/lead ore throughput of the zinc/lead concentrator to 8 million tonnes per annum, by the maintenance programs and optimisation project was prevented, disrupted or delayed, which adversely affected the ore throughput rates and metal production. Although pleaded in greater detail, [26(d)] of the SOC had sufficiently identified those matters and the amendments were rightly regarded by his Honour as particularising the existing claim for loss said to have been caused by the fire. That loss had always been the subject of a claim in [29] of the SOC. There is no error in his Honour’s analysis in [31] – [37] of his reasons.

Even if one was to accept that the SOC had not made a claim for consequential loss due to loss of an optimised level of production and loss of sales of zinc, silver and lead, the pleading of those matters by way of amendment in the ASOC for the first time would not constitute a new cause of action in negligence. It is uncontentious that the pleading of the duty, the alleged breaches and the physical damage said to have been caused by the fire remained the same. The argument that the amended claim pleads a new cause of the consequential loss other than the fire is, as his Honour found, misconceived. The consequential loss is the pleaded result from the physical damage caused by the fire. Thus, even if a claim for consequential loss has been added by way of amendment, it only further particularises the loss already claimed.

In the case of the tortious cause of action for negligence, there needs to be pleaded a duty, breach of duty and that damage has been suffered.⁷³ A cause of action does not accrue until damage has been suffered as a result of the breach of duty. That damage must be measurable. However, once the tortious cause of action accrues, it covers all subsequent loss and damage which is attributable to the same cause, even if that loss and damage is latent or only manifests by stages.⁷⁴

The claim here is for loss consequential upon property damage. There is no claim for pure economic loss which requires different matters to be pleaded to establish a duty of care.

In the present case therefore, the cause of action for negligence, where the breach of duty is said to have resulted in the fire, was complete and time began to accrue when physical damage was suffered by the mine infrastructure as a result of the fire. The fact that consequential damage was suffered for loss of production and sales of zinc as a result of the property damage caused by the fire does not recommence the time at which time begins to accrue for limitation purposes. In the context of the present claim for negligence, there is no separate cause of action by amending the pleadings to claim additional loss arising from the same breach.⁷⁵ Properly characterised the amendments further particularise the loss.

The primary judge’s conclusion that, applying a broad brush comparison test, the additional facts pleaded in the ASOC do not constitute the addition of new causes of action, but rather, further particularise claims that had been previously advanced, was not in error and was supported by his comparison of the pleading. The ASOC claims losses under the same four categories as the SOC. As his Honour found, this is not a case where the amendment sought to allege a different contractual obligation or tortious duty or a different breach. Nor has MIM sought to alter its case that there was a single cause of damage suffered, namely the fire.

Given the above it is unnecessary to discuss each amendment relied upon by the appellants in formulating their argument.

A further complaint was made that the SOC did not sufficiently plead the original causes of action such that the amendments necessarily added a new cause of action as discussed by Pincus JA in Draney v Barry⁷⁶ and Fraser JA in Paul v Westpac Banking Corporation.⁷⁷ The pleading in the SOC was appropriately described as “succinct” but it was not so vague as to be devoid of any ascertainable meaning. His Honour’s finding in this regard was correct.⁷⁸

It is not necessary to consider the appellants’ argument that different causes of injury leading to different damage may give rise to a new cause of action.

Nor is it necessary to consider whether his Honour erred in determining that the new cause of action arose out of the same or substantially the same facts or in determining that he would have granted leave.

Conclusion

I would dismiss the appeal with costs to follow the event.

Footnotes

1. [2016] QSC 260; AB 894. ↩

2. Separate notices of appeal by those parties were filed which are proceedings number CA12902/16 and number CA12910/16 respectively. ↩

3. [2016] QSC 260 at [3]; AB 895. ↩

4. IPA appeal submissions at [2]. ↩

5. [2016] QSC 260 at [4]-[5]. ↩

6. [7(a)] SOC; AB 695. ↩

7. [7] SOC; AB 695. Site is defined in [7(h)] SOC. ↩

8. [8] SOC; AB 695. ↩

9. [9] SOC; AB 695-696. ↩

10. [12] SOC; AB 697. ↩

11. CMA appeal submissions at [15]. ↩

12. IPA appeal submissions at [17]. ↩

13. [26B] was amended at the hearing; [2016] QSC 260 at [18]. ↩

14. T1-15/21-T1-17/35. ↩