Court Procedures Rules 2006 (ACT) rr 502,503, 505, 506

Limitation Act 1985 s 16B(2)

Adam v Shiavon [1985] 1 Qd R 1

Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Balnaves v Armellin [2011] ACTSC 67

Balnaves v Armellin [2012] ACTSC 52

Borsato v Campbell [2006] QSC 191

Brickfield Properties Ltd v Newton [1971] 1 WLR 862

Darlington Building Society v O'Rourke James Scourfield & Mccarthy (A Firm) [1998] EWCA Civ 1664; [1999] Lloyd's Rep PN 33

Golski v Kirk (1987) 72 ALR 443

Hamilton v Australian Capital Territory [2011] ACTSC 45

Meredith v Commonwealth of Australia [2009] ACTSC 168

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Rodgers v Commissioner of Taxation (1998) 88 FCR 61

Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238

Sistrom v Rangott [2004] ACTCA 14

State of New South Wales v Radford (2010) 79 NSWLR 327

Sidaway v Board of Governors of Bethlem Royal Hospital and Maudsley Hospital [1985] UKHL 1; [1985] 1 AC 871

Sion v Hampstead Health Authority [1994] 5 Med LR 170; (1994) EWCA Civ 26

Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

Weldon v Neal (1887) 19 QBD 394

Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409

1. Leave is granted to the plaintiff to file a Further Amended Statement of Claim in the form annexed to the affidavit of Gerard Peter Rees affirmed 20 May 2013.

2. The plaintiff is to pay the defendant's costs of the application and the costs thrown away by reason of the amendment but such costs may not be assessed until judgment in these proceedings or further order.

1. The plaintiff's case is a medical negligence claim which was commenced by originating claim dated 23 November 2011. The plaintiff has applied for leave to file a Further Amended Statement of Claim. That application is opposed.

2. There are three versions of the Statement of Claim that are relevant to this application.

(a) the Statement of Claim as originally filed on 23 November 2011;

(b) an Amended Statement of Claim filed on 20 August 2012 without leave before the close of pleadings pursuant to r 505;

(c) a Further Amended Statement of Claim for which leave is now sought.

3. The present position can best be understood by reference to a chronology of the proceedings to date.

4. The Statement of Claim filed on 23 November 2011 alleged as follows:

4. On or about 10 July 2008 the plaintiff was referred by A/Prof Desmond Yip to the defendant for the purpose of the defendant inserting a Port-A-Cath for the purpose of the plaintiff undergoing chemotherapy.

5. On 20 August 2008 the defendant undertook surgery upon the plaintiff for the purpose of inserting a Port-A-Cath on the right hand side.

6. The said surgery was undertaken by way of an open procedure.

7. The said surgery involved the insertion of the Port into the plaintiff's right subclavian vein.

8. During the course of the said surgical procedure the defendant, in the course of carrying out that procedure, caused disruption of one or more of the plaintiff's lymphatic trunks.

9. In the circumstances pleaded, the defendant was under a duty of care to the plaintiff to exercise all reasonable care and skill as a surgeon in and about the performance of the aforementioned surgery.

(i) Failed to properly identify the position of the plaintiff's lymphatic trunks proximate to the site of the surgery.

(ii) Failed to undertake the said surgery in such a manner as to avoid the disruption of the plaintiff's lymphatic trunks or otherwise cause trauma to those trunks.

11. In consequence of the aforementioned disruption of the plaintiff's lymphatic trunks, she suffered lymphoedema.

5. On 12 December 2011 the plaintiff's solicitors wrote to Professor David Morris seeking his opinion in relation to the treatment of the plaintiff by the defendant.

6. On 9 January 2012 Professor Morris wrote back identifying that there were a number of different methods by which a venous catheter could be introduced into a vein to facilitate the delivery of chemotherapy. He indicated that it would be useful to meet the plaintiff in order to clarify the history. Following a consultation with the plaintiff, Professor Morris was, on 21 March 2012, asked for a report setting out his opinion on a number of questions identified by the solicitors for the plaintiff. On 24 March 2012 he provided a report in which he said "I believe that the use of this open approach to the cephalic vein [the approach used by the defendant] is outmoded and has an excess risk of producing lymphoedema than an ultrasound guided direct puncture or an incision over the internal jugular vein at the base of the neck." He expressed his opinion that the approach adopted by the defendant, which involved a long incision across the front of the chest wall together with a dissection of tissues, produced lymphatic insufficiency in the right arm and that this was avoidable through the use of one of the two alternative techniques that he identified.

7. On 2 May 2012 the solicitors for the plaintiff wrote to the solicitors for the defendant indicating an intention to amend the Statement of Claim by adding certain additional paragraphs. The text of the paragraphs set out in the letter was the same as the text added in the Amended Statement of Claim which I will now describe.

8. On 20 August 2012 an Amended Statement of Claim was filed pursuant to rule 505(1)(a). The Amended Statement of Claim added to the particulars of negligence the following:

(iii) Undertook surgery by way of an open procedure to the cephalic vein rather than an ultrasound guided puncture or an incision over the internal jugular vein at the base of the neck.

(iv) Failed to advise the plaintiff of the relative risks of an open procedure to the cephalic vein rather than an ultrasound guided puncture or an incision over the internal jugular vein at the base of the neck.

[(v)] Undertaking a procedure, namely, an open approach to the cephalic vein which created an excessive risk of producing lymphoedema.

(vi) Failed to advise the plaintiff that the use of an open approach to the cephalic vein created an excessive risk of producing lymphoedema compared to an ultrasound guided puncture or an incision over the internal jugular vein at the base of the neck.

9. In the quote above I have corrected a misnumbering of the paragraphs so as to make later reference to them easier.

10. Not aware that the Amended Statement of Claim had already been filed, on 27 August 2012 solicitors for the defendant wrote to the solicitors for the plaintiff indicating that the defendant would object to the two paragraphs in the proposed amendments which referred to a failure to advise (paragraphs (iv) and (vi) above). That was on the ground that those claims involved a new cause of action and were statute barred. No issue was taken in relation to paragraphs (iii) and (v) which related to the appropriateness of the procedure itself. The letter contended that even if the limitation period commenced on 26 November 2008 or in February 2009 the amendments were still out of time.

11. The Amended Statement of Claim was served on the defendant under cover of a letter dated 30 August 2012. The letter identified that the amendments had been made pursuant to r 505(1)(a).

12. No application was made by the defendant to disallow the amendments made as part of the Amended Statement of Claim pursuant to rule 506 or to take any other action to strike out the pleading.

13. On 29 October 2012 the solicitors for the plaintiff asked Professor Morris if he could provide them with any medical literature which supported his opinion that the open approach adopted by the defendant was outmoded or that either of the other techniques would have been preferable. They particularly asked for any literature to that effect which predated the procedure on 20 August 2008.

14. On 12 November 2012 Professor Morris provided a report to which was annexed a variety of relevant documentation.

15. On 26 February 2013 the solicitors for the plaintiff wrote to the solicitors for the defendant foreshadowing an amendment to the statement of claim which reflected the amendments for which leave is now sought which I set out below.

16. The Further Amended Statement of Claim for which leave is now sought adds additional paragraphs 8A-8E and amends paragraph 9. Those additional paragraphs, showing new material in italics, are as follows:

8A. The Plaintiff was not advised, prior to the carrying out of the said procedure, of the availability of another procedure, namely the use of two dimensional ultrasound guided implant of the Port-A-Cath.

8B. The Plaintiff was not advised, prior to the said procedure, that the use of the procedure referred to in paragraph 8A did not require any surgical cutting or risk to surrounding structures and carried significantly less risk as to adverse outcome than the open procedure.

8C. Had the Plaintiff being given the advice referred to in paragraph 8A and 8B, the plaintiff would not have consented to the carrying out of the subject procedure.

8D. The method used by the Defendant exposed the Plaintiff to damage to proximate structures including her lymphatic system.

8E. If the Defendant had inserted the Port-A-Cath by use of the two-dimensional ultrasound guided system, the Plaintiff would not have been exposed to such damage.

9. In the circumstances pleaded, the defendant was under a duty of care to the plaintiff to exercise all reasonable care and skill as a surgeon in and about the performance of the aforementioned surgery and advising the Plaintiff in respect of the appropriate procedure for the insertion of the Port-A-Cath.

17. Therefore, in summary, the position is as follows. The Statement of Claim pleaded a claim in negligence arising out of the conduct of the surgery. The Amended Statement of Claim added to the particulars of negligence two particulars which raised a failure to advise in relation to the risks of the procedure when compared with other alternative procedures. The Further Amended Statement of Claim for which leave is sought adds material facts relevant to the failure to advise allegations as well as making clear that the duty of care alleged was one which included a duty to advise the plaintiff in respect of the appropriate procedure for the insertion of the Port-A-Cath.

18. Although a defence has not yet been filed, it is clear that the defendant will contend that the limitation period expired on 20 August 2011. That is because that is three years from the date upon which the procedure was undertaken: Limitation Act 1985 s 16B(2)(b). The originating claim was only filed on 23 November 2011. The plaintiff has indicated that if a limitation defence is raised she will plead in reply that the limitation period did not commence to run until 26 November 2008 or February 2009, presumably because it was only on one or other of those dates that the conditions in s 16B(2)(a) were satisfied.

19. The plaintiff submits that the Amended Statement of Claim was correctly filed pursuant to r 505. Therefore the plaintiff submits that there was at that point on foot a failure to advise case even if that case might have been inadequately pleaded. The plaintiff submits that she is not seeking to introduce a new cause of action by adding paragraphs 8A-8E and amending paragraph 9. The plaintiff submits that therefore the amendments now sought to be made are merely amendments necessary to overcome the pleading deficiency in the Amended Statement of Claim.

20. The defendant submits that the Amended Statement of Claim added embarrassing particulars of a failure to advise cause of action which was not raised upon the Statement of Claim. He submits that r 503 covers the field in relation to the pleading of causes of action for which the limitation period has expired. That has the effect that an amendment under r 505 is not possible in relation to such a cause of action. The defendant submits that the failure to advise case is a new cause of action and that leave to make the amendment should be refused. The defendant relies particularly on the decision of the Full Court of the Federal Court in Golski v Kirk (1987) 72 ALR 443. The defendant also relies on Borsato v Campbell [2006] QSC 191.

21. The defendant points to the different issues that would arise in relation to the failure to advise case when compared with the negligent surgery case, in particular: what was discussed between the plaintiff and defendant at her consultations on 23 July and 11 August 2008, what in the circumstances was the nature of the warning that was required, whether it was given, whether the plaintiff would have taken a different course had she been given a proper warning and whether different damages might flow from the failure to warn case as opposed to the negligent surgery case.

22. The defendant also submits that no sufficient explanation has been given by the plaintiff for the late pleading of the failure to advise case and points to the notice that was given pursuant to the provisions of the Civil Law (Wrongs) Act 2002 in May 2009. That notice made it clear that the plaintiff contemplated a failure to advise action. Although the document is hard to read there is an entry in the document as follows:

The claimant alleges that she was not warned that a possible consequence of having a Port-a-Cath inserted could cause a disruption of the local lymphatic drainage.

Written warning. Not warned about lymphoedema. The warnings related to infection generally.

23. In reply, the plaintiff submitted that the Amended Statement of Claim may have been pleaded inadequately but it was not a nullity. She made the submission that, by reason of the single duty on a doctor described in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483, there was, when comparing the Statement of Claim and the proposed Further Amended Statement of Claim, no new cause of action. Finally she submitted that the failure to advise referred to in the notice quoted above was a different one than was now alleged. In the notice, the failure to advise related to the risk of lymphoedema whereas the failure to advise now sought to be pleaded was a failure to advise that there were alternative techniques by which the Port-a-Cath could be inserted.

24. In order to understand these competing submissions it is necessary to set out the terms of rules 502, 503, 505, 506.

(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.

(2) The court may give leave, or give a direction, on application by the party or on its own initiative.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave or a direction under this rule.

Note 2 Rule 6902 (Leave may be given on conditions) provides that, if the court gives leave under these rules, it may give the leave on the conditions it considers appropriate.

(3) 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.

(4) If there is a mistake in the name or identity of a party, the court must give leave for, or direct the making of, amendments necessary to correct the mistake, even if the effect of the amendments is to substitute another person as a party.

(5) This rule does not apply in relation to an amendment of an order.

Note See r 6906 (Mistakes in orders or court certificates) for amendment of orders.

(6) This rule is subject to rule 503 (Amendment - after limitation period).

(1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.

(2) The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if -

(b) the court is satisfied that the mistake sought to be corrected -

(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.

(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if -

(b) the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.

(4) The court may give leave to make an amendment to include a new cause of action only if -

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

1. Amendment - of pleadings before close of pleadings

(1) A party may, without the court's leave, amend the party's pleadings -

(b) as often as necessary before the close of pleadings, with the agreement of all other parties to the proceeding.

(2) This rule does not apply to an amendment for which the court's leave is required.

(1) If a party makes an amendment without the court's leave before the close of pleadings, another party may, not later than 14 days after the day the amendment is served on the party, apply to the court to disallow all or part of the amendment.

Note Pt 6.2 (Applications in proceedings) applies to an application under this rule.

(2) On the application, the court may make any order it considers appropriate.

(3) However, the court must disallow all or part of the amendment if satisfied that, had an application for leave to make the amendment or part been made, it would not have given leave to make the amendment or part.

25. Rule 502 provides the general power to amend documents. It provides that the Court may "give leave" for a party to do so. It is notable that r 502(6) expressly makes the rule subject to r 503. Rule 503 "applies in relation to an application for leave" where a relevant limitation period current at the date the proceedings started has ended. I will assume, for the purposes of the operation of r 503, that the limitation period had not expired at the date the proceedings were started.

26. Where the rule applies, r 503(4) permits the Court to grant leave to make an amendment to include a new cause of action 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".

27. Rule 503 works in combination with rule 502 because rule 503 only applies where "an application for leave" is made. Rule 502 contemplates an application for leave is necessary to be made in order to amend a document. Thus r 503 qualifies the general scope of the power to amend by limiting the circumstances in which that power to amend may be exercised after the expiry of the limitation period that was current when the proceedings were started.

28. Rule 502 permits amendment by leave of originating processes, pleadings, applications or any other document filed in court: see r 502(1), except an order: see r 502(5). Rule 503 does not specify the documents to which it applies because it necessarily picks up the scope of the documents which are referred to in rule 502. Thus it may apply to both an originating a process as well as a pleading.

29. Rule 505, on the other hand, is limited to the amendments to pleadings. It expressly does not apply to an amendment for which the Court's leave is required: r 505(2). It is a power of amendment in relation to a limited class of documents, namely pleadings. It permits the amendment of the pleadings in the circumstances set out in sub-rule (1)(a)-(b), namely, once before the close of pleadings and as often as necessary before the close of pleadings by consent. Having regard to the relationship between rule 502 and 503 outlined above it is clear, in my view, that rule 505 permits an amendment of pleadings after the expiry of a limitation period. That is because the "carve out" from the capacity given by r 505 is an application for an amendment for which the court's leave is required. Plainly enough that carve out does not include cases where r 502 (and hence r 503) applies because that would effectively eliminate the limited exception given by r 505. Instead, the reference in r 505(2) to amendments for which the Court's leave is required contemplates other rules which expressly require the grant of leave in particular circumstances: see for example rr 104(2), 200(3), 231(3), 292(4), 413(2)(b), 467(2), 492(1).

30. The possibility that the power to make an amendment under r 505 may need to be controlled is accommodated by r 506 which permits another party, not later than 14 days after the day the amendment is served on a party to apply to the Court to disallow the amendment. There is a general power in sub-rule (2) to make any order that the Court considers appropriate, but sub-rule (3) says that the Court "must" disallow the amendment if it is satisfied that had an application for leave to make the amendment been made it would not have given leave to make the amendment.

31. Where an amendment is made after the expiry of a limitation period pursuant to r 505(1)(a), the effect of r 506(3) is to permit a party, within a limited period, to agitate the appropriateness of the amendment. As a consequence, the effect of rr 505-506 is to reverse the procedural burden in relation to an amendment made prior to the close of pleadings so that the burden will be on the other party to make an application that the amendment not be permitted rather than on the amending party in the first instance to seek leave and justify the making of the amendment. The rules recognises the reality that often amendments do need to be made and a party should be permitted to do so early in the course of the proceedings subject, of course, to the power of the Court, at the instigation of the other party, to deal with any matter of real controversy in relation to the amendment.

32. If an application under rule 506 is made then, because of sub-rule (3), the amendment needs to be considered in the light of the position that would have applied had the ordinary rule, namely r 502, applied. That would mean that where the amendment was made after the expiry of the limitation period the strictures of r 503 would also be picked up.

33. No application under r 506 has been made either within the time permitted by the rule or at any later time which might be permitted by an order dispensing, pursuant to r 6 of the Court Procedures Rules, with the time requirement in r 506. The only orders that the defendant has foreshadowed in correspondence is an order made under r 425, a foreshadowed application under r 506 having been expressly abandoned.

34. I conclude that r 503 does not cover the field of amendments after the expiry of the limitation period and that it is open to make such an amendment without leave of the Court under r 505. In the absence of an application under r 506 to disallow the amendment, the amended pleading will stand.

35. That means that in the present case, the relevant comparison for the purposes of the application for leave to amend is between the Amended Statement of Claim and the proposed Further Amended Statement of Claim. Pursuant to r 514(1), the amendments made by the Amended Statement of Claim took effect from the date of the Statement of Claim, namely 23 November 2011.

(a) whether the amendments now proposed involve pleading a new cause of action; and

(i) it arises out of the same facts or substantially the same facts as the existing cause of action; and,

(ii) the discretion should be exercised under r 503(4); or,

(c) if they do not, whether the discretion to permit them should be exercised under r 502.

Statement of Claim v Further Amended Statement of Claim

37. Golski establishes that claims in respect of the negligent performance of an operation on the one hand and a failure to give appropriate advice in relation to such treatment on the other involve two different causes of action. It was a case which predated the current form of the rules and hence involved the application of the rule in Weldon v Neal (1887) 19 QBD 394. Thus the critical issue in that case was whether or not the plaintiff sought to plead a new cause of action, not whether the new cause of action arose out of "the same facts or substantially the same facts".

38. Borsato involved not only a similar factual situation, a medical negligence claim relating to negligent surgery being amended to involve a claim of negligent advice, but also a rule in similar form to r 503(4). The real difference in Borsato was that the delays involved in the prosecution of the case were extraordinary, the relevant defendants only having been joined to the case some 11 years after the relevant surgery and the pleading of the failure to warn case against them being some 18 years after the surgery and 7 years after they were joined as parties to the proceedings.

39. McMurdo J reviewed the relevant Queensland authorities and, without referring to the decision in Golski, came to the same conclusion, namely that the failure to warn case involved a new cause of action. His Honour identified the same features as were influential in Golski:

(a) the need to prove a distinct fault necessarily earlier in time than the surgery itself;

(b) the need to prove a sequence of events that would have occurred in response to a proper warning;

(c) the difference in the inquiry in relation to damages arising from negligent surgery as opposed to a failure to warn.

40. His Honour therefore concluded that leave was required under the provision corresponding to r 503(4). He identified that the issues were then whether or not the new cause of action arose out of substantially the same facts and whether it was otherwise appropriate to grant leave. As to the first question, namely whether or not the new cause of action arose out of substantially the same facts the extent of his Honour's reasons was:

The first of those involves again a question of degree. I am not persuaded that it should be answered in the plaintiff's favour.

41. He then went on to give, at some length, reasons why "in any case" he was not persuaded that it was appropriate that the amendment be allowed. It is clear that his Honour's decision was principally based on this exercise of discretion in the light of the unfairness to the defendants because of the lengthy period that had elapsed since 1988 when the surgery occurred.

42. On the basis of Golski I am satisfied that, as between the Statement of Claim and the Further Amended Statement of Claim, a new cause of action was alleged. That is because the plaintiff added a claim of a failure to warn to the existing claim of negligent performance of surgery and Golski determines that the failure to warn claim constitutes a new cause of action.

43. I do not accept the plaintiff's submission that, in the light of the "single comprehensive duty" of a doctor described in Rogers v Whitaker at 483 there was no new cause of action. Although Golski predated Rogers, Golski considered the cause of action issue in the light of the decision in Sidaway v Board of Governors of Bethlem Royal Hospital and Maudsley Hospital [1985] UKHL 1; [1985] 1 AC 871 and, in particular, the dictum of Lord Diplock at 893: see Golski at 451, 455, 458. It is this same passage from Sidaway which was quoted with approval by the High Court in Rogers at 483. As a consequence, the approach to the scope of a doctor's duty of care was the same in both cases and the subsequent decision in Rogers does not provide a basis for a conclusion different to that reached in Golski.

Amended Statement of Claim v Further Amended Statement of Claim

44. The issue then becomes what to make of the Amended Statement of Claim. The plaintiff accepts that the pleading is defective. On the most benevolent interpretation the defects are that it fails to plead the absence of advice about alternative procedures and what would have occurred had that advice been given. Such a benevolent interpretation allows to be awkwardly squeezed into the duty pleaded in paragraph 9 an obligation to provide proper advice relating to the surgery. The only way that could be done is by reading the words "in and about the performance of" as including a duty to provide appropriate advice prior to the performance of surgery or, put somewhat differently, not to undertake the surgery without having given such advice. Having regard to the focus in the antecedent Statement of Claim on the actual surgery (in particular in paragraphs 5 to 8), such a reading is an unnatural one. However, had the Amended Statement of Claim been filed as the original pleading in the case, the extension of the duty as far as advice might, having regard to the single duty of a doctor referred to in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and indeed in Golski, have been a plausible reading of the pleading.

45. On a less benevolent reading of the pleading it is plainly defective because, in addition to the criticisms made on a benevolent reading, the particulars of breach of duty can be characterised as clearly going beyond the scope of the duty alleged. While there was no obligation to plead a specific duty in the terms pleaded, the plaintiff, having done so is stuck with that decision: see Golski at 457-458 per Ryan J, and the particulars are merely embarrassing surplusage.

46. In my view a party does not introduce a new cause of action solely because the amendment to its pleadings corrects an admittedly defective pleading and puts the claim in terms which comply with the pleading rules under the Court Procedures Rules. If that was the case then a plaintiff, starting proceedings within the limitation, period would be caught by r 503 when seeking to correct a technically defective pleading relating a single cause of action. Rather, an amendment can be made to a cause of action that is defectively pleaded so long as it is possible to ascertain that it is the same cause of action. Clearly this has the potential to open up consideration of the often conflicting formulations as to what constitutes a cause of action surveyed in the judgment of Kelly J in Golski. However if the Amended Statement of Claim had been the first pleading it would have been apparent that, although defectively pleaded, it was intended to raise both a negligent surgery as well as a failure to advise claim. Therefore, taking as the starting point the Amended Statement of Claim, it is, in my view, open to the plaintiff to amend it so as to regularise its pleading without being taken to be introducing a new cause of action.

(a) the plaintiff filed the Amended Statement of Claim pursuant to r 505;

(b) the amendment took effect from the date of the Statement of Claim, namely 23 November 2011;

(c) the Amended Statement of Claim, although defectively pleaded, raised both a negligent surgery and failure to advise causes of action;

(d) the Further Amended Statement of Claim regularised the pleading for those two causes of action but did not introduce any new cause of action;

(e) therefore the application for leave to amend is governed by r 502 rather than r 503.

Amended Statement of Claim v Further Amended Statement of Claim: alternative approach

48. When comparing the Amended Statement of Claim with the Further Amended Statement of Claim an alternative approach is to treat the amendments as introducing a new cause of action (that is, a correctly pleaded cause of action as opposed to an incorrectly pleaded alleged cause of action) but then deal with the matter under rule 503 by comparing the facts of the defectively pleaded cause of action with the correctly pleaded cause of action in order to determine whether the correctly pleaded cause of action arises out of substantially the same facts as the previously alleged cause of action. This is an approach consistent with the comments of Staughton LJ in the Court of Appeal in Sion v Hampstead Health Authority [1994] 5 Med LR 170; [1994] EWCA Civ 26. Although made in response to a slightly different argument, his Lordship treated the equivalent rule as referring to "the same facts or substantially the same facts as an alleged cause of action in respect of which relief has already been claimed...". This treats the correctly pleaded cause of action as a new cause of action, not being the same as the defectively alleged cause of action, but then deals with the issue pursuant to the equivalent of r 503 as a cause of action arising out of substantially the same facts. If this approach is adopted then, in my view, for the reasons that I give below, the Further Amended Statement of Claim arises out of substantially the same facts as those defectively alleged in the Amended Statement of Claim and hence the issue is whether or not it becomes appropriate to make the amendment under rule 503(4)(b), an issue equivalent to that which would arise under r 502 if no new cause of action was involved.

49. Whichever of the alternative approaches is adopted in relation to the comparison between the Amended Statement of Claim and the Further Amended Statement of Claim, the result is somewhat unsatisfactory because it turns to a significant extent on the fact that the defendant did not make an application under r 506 to disallow the amendments made in the Amended Statement of Claim. That was notwithstanding the fact that he raised, in correspondence, his objections to the inclusion of the additional paragraphs relating to the failure to warn case. Further, he raised in correspondence the prospect of orders being made under r 506 but then expressly abandoned that contention in correspondence prior to the hearing of the application. It was not clear why an application under r 506 was not pursued. Had an application been made under r 506 then, having regard to the admitted defects in the pleading or, alternatively, the raising of a new cause of action, the defendant would have been able to contend that the new cause of action sought to be pleaded did not arise out of "the same facts or substantially the same facts" as those identified in the Statement of Claim.

A cause of action arising out of substantially the same facts?

50. In case I am wrong about whether or not the Further Amended Statement of Claim involves, when compared with the Amended Statement of Claim, a new cause of action, I will consider whether or not the failure to advise cause of action pleaded in the Further Amended Statement of Claim arises out of the same facts or substantially the same facts as a cause of action for which relief is claimed in either the Statement of Claim or, on the assumption that it did not effectively raise the failure to advise cause of action, the Amended Statement of Claim. That involves deciding whether the failure to advise claim is sufficiently closely related to the negligent surgery claim to conclude that it "arises out of ... substantially the same facts as a cause of action for which relief has already been claimed".

51. The starting point is that, as Golski clearly identifies, the failure to advise case involves different factual questions relating to the advice that was given, the course that would have been adopted had proper advice been given and a different inquiry as to damages. That was held to be sufficient to characterise the failure to advise claim as a different cause of action but does not address the question that then arises under the current rules and which only arises where, ex hypothesi, there is a new cause of action.

52. Unfortunately the authorities "do not provide precise guidance" on how to apply the statutory language: State of New South Wales v Radford (2010) 79 NSWLR 327 at [66]. In applying the statutory language there have been decisions which give a broad scope to the phase "substantially the same facts" and others which give narrow scope to that phrase.

53. A useful overview of the authorities is given in the decision in Meredith v Commonwealth of Australia [2009] ACTSC 168 at [29]- [33]. Whether or not the test is satisfied is essentially "a matter of impression": Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409 or a matter of "degree and impression": Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 at [24] or "a question of degree": Borsato at [17].

54. The tests to be applied have been variously articulated: whether "[t]he same - or substantially the same - set of facts falls to be investigated" in relation to the two claims: Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 873 per Sachs LJ, whether "the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action": Brickfield at 880 per Cross LJ, "whether the overlap between the essential facts on which each cause of action depends is so great that the two causes of action can be said to arise out of substantially the same facts": Radford at [72].

55. Three of the cases referred to in Meredith provide examples of the situations that can be covered.

56. Brickfield involved permitting a new cause of action relating to negligent design of buildings in addition to negligent supervision of their construction. Adopting the tests set out above, the Court of Appeal permitted the amendment notwithstanding that the alleged faulty design was at least in part antecedent to the alleged negligent supervision.

57. Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 involved a claim pleading a failure to advise in relation to the exercise of an option and the preparation of a licence agreement in 1979. An amendment was permitted so as to permit allegations that the failure to advise in relation to the option agreement occurred in 1976. This was held to be a new cause of action, arising years earlier than had been previously pleaded (at 238, 239) but arising out of a single transaction occurring over several years and the subject to a single retainer (at 241).

58. In Adam v Shiavon [1985] 1 Qd R 1 an amendment was permitted on the basis that it arose out of substantially the same facts where a cause of action for personal injuries arising out of a motor vehicle accident was added to a claim for property damage. Campbell CJ (with whom the other members of the Full Court agreed) found (at 8) that although the plaintiff's injuries raised a separate issue for determination that did not prevent the new cause of action arising out of substantially the same facts because there was a single accident, one duty of care and one breach of duty.

59. There are other authorities which illustrate how similarly worded rules have been applied.

60. Rodgers v Commissioner of Taxation (1998) 88 FCR 61 involved claims that a number of payments of group tax to the Commissioner were voidable transactions. A Full Court of the Federal Court allowed an amendment after the expiry of the relevant limitation period to include claims relating to further payments. The rule in that case was more specific than that present here in that it required that the "claim arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief". The Full Court permitted the amendment, pointing out that notwithstanding the payments involved separate transactions, the payments were in the same year, formed part of a pattern of regular remittances, and involved allegations identical in form to the earlier claims.

61. In Balnaves v Armellin [2011] ACTSC 67 at [55]- [56] Master Harper found that a new cause of action alleging negligence in the conduct of surgery arose out of substantially the same facts as a cause of action alleging negligence in post operative care. Matters distinguishing the pleadings in that case from this case were that they were improperly extensive in their description of the facts, possibly making it easier to find that the new cause of action arose out of substantially the same facts and that the duty of care pleaded negligence in relation to both surgery and post operative care although the original particulars were directed solely to post operative care. The Master ultimately refused leave to amend for discretionary reasons. Higgins CJ allowed an appeal from the decision on the basis that, having regard to the scope of the pleading the new allegations of breach "raises a new case but not, in my view, a new cause of action": Balnaves v Armellin [2012] ACTSC 52 at [13]. His Honour did not, therefore, need to consider whether substantially the same facts were involved.

62. There are cases which clearly take a narrow view of what amounts to substantially the same facts, particularly where a new allegation of fraud is perceived to be made: Darlington Building Society v O'Rourke James Scourfield & Mccarthy (A Firm) [1998] EWCA Civ 1664; [1999] Lloyd's Rep PN 33; Sistrom v Rangott [2004] ACTCA 14. Similarly, where the material before the court is not sufficient to allow the relationship between the causes of action to be judged a court will not be able to be satisfied of the statutory requirement for the grant of leave: Radford at [72]. However those situations are not present here.

63. The decision of the Master in Balnaves illustrates how the redundant pleading of a broad duty can make it easier to find that a new cause of action arises out of the substantially the same facts as an old cause of action. Hamilton v Australian Capital Territory [2011] ACTSC 45, where the Amended Statement of Claim "could not be said to be the finest example of the pleader's art", is another example of a case where a broad statement of the negligence and a pleading which went significantly beyond material facts made it easier for a plaintiff to satisfy the test in r 503(4). In my view, parties should be encouraged to plead the case that they, based on the material available to them, actually want to run rather than, for fear of being locked into a case which turns out to be the wrong one, plead in generalities so as to preserve their capacity to accommodate new material or advice which becomes available to them.

64. In the present case, in assessing whether the failure to advise cause of action arises out of substantially the same facts as the existing cause of action the following matters appear to me to be significant.

(a) Clearly enough there will be a significant overlap between the facts that (to adopt the words of Sachs LJ in Brickfield) need to be investigated for the purposes of the two causes of action. That is particularly so given the amendments, to which no objection was taken, relating to whether or not the procedure was an appropriate one (paragraphs (iii) and (v)). The issue raised by these particulars is inextricably linked to the failure to advise question. The allegations raise the question of whether or not the procedure was an appropriate one. The answer to that question is likely to be significant, and possibly determinative, of whether or not the failure to advise cause of action can succeed.

(b) In the present case there is, as Rogers v Whitaker makes clear, a single duty of care even if the Statement of Claim appears to limit the duty alleged to a duty in relation to surgery.

(c) Both the old and the new causes of action "arise out of" the transactions between doctor and patient resulting from the referral from Associate Professor Yip pleaded in paragraph 4 even if the scope of the duty pleaded in the Statement of Claim focuses only on the performance of the surgery. In reality the relationship in this case (cf the position of the third and fourth defendants in Borsato: see Borsato at [4]-[5]) involved both advice and treatment.

(d) While it may be that the advice in fact occurred prior to the surgery and hence the two allegations of breach of duty occurred at different times as well as involving different subject matters, on the plaintiff's case the failure occurred up until the point when surgery took place.

65. Having regard to the facts that underlie both causes of action I am satisfied that the two causes of action "arise out of" substantially the same facts for the purposes of r 503(4). In so finding I distinguish the decision in Golski on the basis that that decision relates only to whether or not there is a new cause of action and does not address the question of whether that different cause of action arose out of substantially the same facts. Implicit in my conclusion is that if Golski had been decided under the current rules the new cause of action would have arisen out of substantially the same facts and that the result would have been different. So far as Borsato is concerned, I treat that decision as being based on the discretionary refusal to grant leave to amend and hence I treat the brief statement as to whether or not the new cause of action involved substantially the same facts as being obiter dicta.

66. As a consequence I am satisfied that even if I were to ignore the Amended Statement of Claim or treat the amendments in it as embarrassing surplusage, the new cause of action pleaded in the Further Amended Statement of Claim arises out of substantially the same facts as the Statement of Claim and it is open to the Court to grant leave to make the amendment under r 503(4).

67. Whether or not there is a new cause of action, in my view it is appropriate to grant leave to make the amendment. To be more specific, I consider it appropriate for the purposes of r 502 or 503(4) to grant leave to make the amendment. My reasons are as follow.

(a) I draw the inference from the evidence that the amendment in the Amended Statement of Claim and the proposed Further Amended Statement of Claim are a result of obtaining the advice of Professor Morris. This expert evidence provides a proper basis for the making of the claim of negligent advice. Having regard to the nature of the briefing letters I am prepared to draw the inference that such advice was not previously available to the plaintiff.

(b) While the notice of claim did refer to a failure to advise, it was a different failure to advise, namely a failure to advise in relation to the risk of lymphoedema rather than a failure to advise in relation to alternative surgical techniques. Therefore I am not satisfied that there was a deliberate forensic choice not to make the claim now sought to be made. It is not unusual for expert opinion to change the complexion of a case and where that occurs at a reasonable point in the litigation process it is appropriate to accommodate such a change.

(c) Notwithstanding that proceedings have now been on foot since November 2011 no defence has yet been filed. The proceedings are therefore, at least in a procedural sense, at a relative early stage. It is not, therefore, a case such as Balnaves where significant prejudice will arise from the manner in which the case has been prepared and run to date or where it could be said, consistent with the principles in Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, that the plaintiff should not be permitted leave to amend.

(d) No specific prejudice in making the amendment is identified and, while I accept that there is some prejudice to be presumed, that is likely to be minor having regard to the fact that the new cause of action arises out of substantially the same facts, the existence of notes and records which were in evidence about the dealings between the plaintiff and the defendant and the fact that the appropriateness of the surgical technique adopted will be in issue in any event as a consequence of the particulars of negligence to which no objection was taken. In so finding I have taken into account the personal prejudice to the defendant arising from the alteration of the case against him but not found that to be significant given the scope of the proceedings already on foot.

68. For these reasons the orders that I will make are:

1. Leave is granted to the plaintiff to file a Further Amended Statement of Claim in the form annexed to the affidavit of Gerard Peter Rees affirmed 20 May 2013.

2. The plaintiff is to pay the defendant's costs of the application and the costs thrown away by reason of the amendment but such costs may not be assessed until judgment in these proceedings or further order.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.