Renowden v McMullin

Renowden v McMullin - [1970] HCA 24 - HCA 1970 case summary — Zoe

[29]

Where it is sought to strike out a statement of claim on the ground that it asserts a claim not included in the writ or to amend a statement of claim the indorsement of the writ governs or determines whether the statement of claim should be struck out or amended as the case may be. The right given to the plaintiff by O. 20, r. 2, of the Victorian Rules does not in our opinion require any modification of that statement. The alteration, modification or extension of the claim pursuant to this rule must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the Rules for variation in the statement of facts, or the extent of the remedy or relief sought. "A plaintiff may amend his statement of claim once without leave by which I understand that he may widen it or lessen it or express it in better terms, so long as he keeps it in substance consistent with what he claims in his writ" per Dowse B. in Moore v. Alwill [1] . Notwithstanding the terms of O. 20, r. 2, a defendant, in our opinion, could properly object to an amended statement of claim which was sought to be justified by reference to that Rule, if it transcended the area of claim notified by the indorsement of the writ by bringing in a new and independent cause of action: see judgment of Palles C.B. in Moore v. Alwill. Such a conclusion is, in our opinion, quite in conformity with the liberalisation in procedure which the introduction of the Judicature Act system is generally claimed to have intended and to have effected. A plaintiff whose statement of claim is struck out as exceeding the indorsement is not thereby deprived of the right to issue another writ. He could have no complaint if his statement of claim had asserted a claim which was outside the indorsement and was statute barred at the date of the delivery of the statement of claim, for as Lord Esher pointed out in Weldon v. Neal [2] he could not employ his writ inadequately indorsed to cover the claim which had become statute barred.

[48]

The basic step in the reasoning of the Full Court in accepting this submission of the respondents that the appellant must be taken to have abandoned part of the indorsement on the writ seems to us to have been "that it is a natural consequence" of the terms of O. 20, r. 2, "that a statement of claim entirely supersedes the statement of the nature of the plaintiff's claim and the cause thereof and the relief or remedy regarded, so that any cause of action raised by the indorsement but not included in the statement of claim must be treated as abandoned or discontinued". In our respectful opinion, such a conclusion does not logically follow from the terms of the rule. We have already indicated our view of the scope and purpose of the rule, the object of which is really to allow what Morris L.J. called a "new explanation" of the complaint denoted by the indorsement on the writ: See Graff Brothers Estates Ltd. v. Rimrose Brook Joint Sewerage Board [1] . That case does not, in our opinion, lend any support to the respondents' submission. Further, the reasoning in Moore v. Alwill [2] and, particularly, the insistence upon the continuing importance of the indorsement on the writ, would refute the submission: See also Cave v. Crew [3] . It does not follow, in our opinion, that because to ascertain the specific issues in an action, resort must be had exclusively to the pleadings, all issues which could properly be raised within the scope of the indorsement, but are not reflected in the statement of claim, have necessarily to be regarded as abandoned. It seems to us that the Full Court gave far too little weight to what we will call the "purview of the writ" principle, illustrated in Cave v. Crew [1] and that too much was inferred from the scant note of an undefended application in Large v. Large [2] , a case which Palles C.B. in Moore v. Alwill [3] called "a very blind case". As we have indicated the basic importance of the indorsement on the writ in determining the possible extent of the issues which can be raised by the pleadings cannot be overlooked in the resolution of this case.

[74]

We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so. In my opinion their Honours were right in thinking that in the light of O. 20, r. 2, and of a number of authorities to which they referred, it was to the statement of claim that regard should be had in determining what were the claims which the plaintiff wished to litigate although, if no question of the Limitation of Actions Act had arisen, it might well have been that the amendments sought would have been granted. But I agree with their Honours that in a case in which an amendment to a statement of claim is sought which raises a cause of action of a kind different to that which is alleged in the statement of claim and it appears that at the date when the amendment is sought that cause of action would be statute barred if a writ were then issued, the amendment should not be allowed except perhaps in what Lord Esher had described as "very peculiar circumstances" and no one has suggested that any such circumstances existed in the present case. The reasons which led their Honours to refuse the proposed amendment were that although the indorsements on a writ may be wide enough to cover a number of causes of action, if the statement of claim omits to rely upon one of them the cause of action so omitted is to be taken to have been abandoned; and if in such circumstances the plaintiff later seeks the leave of the Court to amend his statement of claim in order to re-introduce into the proceedings the cause of action which he has thus abandoned he will not, except in "very peculiar" circumstances, be allowed to do so if, at the date when he seeks to re-introduce it, a writ issued in respect of that cause of action would have been statute barred. 1. (1887) 19 Q.B.D., at p. 395.

[76]

Where a plaintiff in his statement of claim omits part of what he claims in his writ, he will be deemed to have abandoned that part (Harries v. Ashford [1] , following Cargill v. Bower [4] ), and he may be refused leave to amend the statement of claim to restore his earlier claim (Cellular Clothing Co. Ltd. v. G. White & Co. Ltd. [5] . In my opinion the passages which I have quoted and the cases cited therein support the view which the Full Court took that the plaintiff was to be regarded as having dropped his claim for breach of contract by omitting it from his statement of claim. They considered also that to allow him to re-introduce it by amendment at a time when it would have been statute barred had he then begun an action to enforce it would not be a proper exercise of their discretion. This view is, to my mind, amply supported by authorities which are directly in point and I need refer only to some of them. The first is Harries v. Ashford [1] . In that case the facts were that on 9th August 1944 one H was killed in an accident as the result of a collision between a car in which he and his wife were travelling and another vehicle. In the collision his wife suffered personal injuries. On 7th August 1945 a writ was issued in which H's widow and another person, described in the writ as the administratrices of H's estate, and H's widow in her personal capacity were joined as plaintiff's, the administratrices claiming damages under the Fatal Accidents Acts 1846-1908 U.K. in respect of the death of H and the widow claiming damages under the same Acts as well as for her personal injuries. At all material times s. 3 of the Fatal Accidents Act of 1846 was in force. It required that every action brought to recover damages under that Act should be commenced within twelve months after the death of the deceased and it was not until the passing of the Law Reform (Limitation of Actions) Act in 1954 that s. 3 of the Act of 1846 was amended to extend the period of limitation from twelve months to three years. In 1946 the statement of claim was delivered and it limited the claim under the Fatal Accidents Acts to that made by the administratrices, omitting the widow's claim to recover under those Acts and limiting her claim to damages for her personal injuries. It appeared that letters of administration in the estate of H had not been granted until 9th August 1945, two days after the issue of the writ. In December 1949 the plaintiffs applied (a) to strike out the names of the administratrices from the action on the ground that they had been improperly joined since at the date of the writ letters of administration had not been granted, and (b) to amend the statement of claim by adding a claim by the widow under the Fatal Accidents Acts. By this time, of course, more than twelve months had elapsed since H's death. The Court held that an amendment to enable the widow to claim under those Acts should not be allowed. The judgment of Asquith L.J. proceeded on the basis that, since the statement of claim had omitted the widow's claim to recover under the Fatal Accidents Acts, that cause of action must be taken to have been abandoned and that, having regard to the time which had elapsed between the delivery of the statement of claim and the application for leave to amend, the application should be refused. His Lordship made no express reference to the fact that the statutory period of limitation had expired at the time of the application to amend, but Roxburgh J., the other member of the Court, plainly based his decision on it. What he said was, The effect of the statement of claim in this case was to abandon the claim which it is now sought to restore to the statement of claim. If that claim has been abandoned, this application must be an application to raise the claim de novo, and I should hesitate long before allowing someone to raise a claim de novo by amendment if at that time he could not successfully raise that claim by an original action. [1] In a more recent case, Hall v. Meyrick [2] , the facts were that the plaintiff and a man named Hall, whom she later married, had instructed the defendant, a solicitor, to prepare their wills, each intending to confer benefits on the other. This he did. The solicitor had been informed by them that they might marry but he did not advise them that the marriage would revoke the wills. After they had married Hall died, and, not having made another will after his marriage to the plaintiff, he died intestate. The plaintiff sued the solicitor for damages for negligence. The indorsement on the writ stated that the defendant had failed "to use reasonable skill and diligence as solicitor for the plaintiff" and this appears to me to be a clear enough statement that she had retained the defendant as her solicitor. The statement of claim, however, alleged a joint retainer of the defendant by the plaintiff and by Hall and this claim was rejected by the trial judge. The plaintiff thereupon applied for leave to amend the statement of claim by alleging that she had retained the defendant but at the date of her application to amend the period set by the statute of limitations had expired. Nevertheless the amendment was allowed by the trial judge and judgment was given by him for the plaintiff. On appeal it was held that the amendment should not have been allowed since the amended cause of action was one which would have been statute-barred had a writ been issued at the time when the amendment was sought. In dealing with that question, Hodson L.J. said [3] : That depends on how this case was pleaded. The writ as endorsed was for damages for negligence "and failure to use reasonable skill and diligence as solicitor for the plaintiff"; but, when the statement of claim was delivered, the form of action was made plain, and according to the provisions of Ord. 20, r. 4, in my opinion, from that moment the statement of claim, and the statement of claim only, is the document to be looked at in order to see what it was that the plaintiff was claiming. Order 20, r. 4 of the English Rules then in force corresponded with O. 20, r. 2 of the Victorian Rules. 1. [1950] 1 All E.R. 427. 2. (1878) 10 Ch. D. 502, at p. 508. 3. (1907) 24 T.L.R. 64. 4. [1950] 1 All E.R. 427. 5. (1878) 10 Ch. D. 502. 6. (1952) 70 R.P.C. 9. 7. [1950] 1 All E.R. 427. 8. [1950] 1 All E.R., at p. 429. 9. [1957] 2 Q.B. 455. 10. [1957] 2 Q.B., at p. 476.

[77]

The effect of that amendment is to substitute the allegation that there was a separate retainer of the solicitor by the plaintiff as an alternative to the joint retainer which had originally been alleged. The point at once emerges that, if a separate contract is alleged between the plaintiff and the solicitor, that is an entirely new contract, a different contract from that which was originally pleaded, and, having regard to the lapse of time, the defence of the Statute of Limitations is, on the face of it, available to the defendant if he so chooses. And he added [2] : The general rule is quite clear, that the plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have been barred by the Statute of Limitations. That principle was declared in no uncertain terms by Lord Esher in Weldon v. Neal. For these reasons he held that the amendment should not have been allowed. Parker L.J. took the same view, saying [3] : once it appeared that the new claim was statute-barred, and the defendant objected to the amendment on that ground, I think the judge was bound, in the proper exercise of his discretion, to refuse the amendment. And Ormerod L.J. said [4] : I agree that this appeal should be allowed on the ground that the original instructions having been separate and independent, as the judge, in my view, has properly found, the case as originally pleaded could not stand. I agree, for the reasons which have already been given by my brothers, that it was a wrongful exercise of his discretion for the judge to allow the pleadings to be amended in such a way as to cause to be pleaded a cause of action which was, at the time of the amendment, statute-barred. I think it necessary to refer only to one other case, which was decided by the Full Supreme Court of New South Wales, and which appears to me to be in point notwithstanding the fact that in New South Wales a writ need not mention any cause of action. As Jordon C.J. pointed out in Horton v. Jones [No. 2] [5] , however, that fact makes no difference to the rule that has been applied in proceedings under the Judicature Act with regard to the allowance or otherwise of amendments to a plaintiff's pleading in cases to which the principles laid down in Weldon v. Neal [1] applies. The case to which I refer is O'Grady v. Botany Wools (Australia) [2] . There the plaintiff had issued a writ for damages against the defendants, which contained no statement of any cause of action. The plaintiff declared in negligence and, after the lapse of a period of three years, he sought leave to amend his declaration by adding a count based upon a breach of statutory duty. If a writ had been issued at the date of the application for amendment, the cause of action sought to be added would have been statute barred by certain provisions of the Workers' Compensation Act. The amendment was allowed by the judge to whom the application was made and an appeal was successfully brought to the Full Court where the principal judgment was delivered by Walsh J. His Honour summed up the position in a passage with which, with respect, I entirely agree. He said [3] : For the purposes of deciding whether an amendment should be refused because at the time it is sought the statutory time limit has expired, then the plaintiff is treated as having already commenced his action in respect of the claims contained in the declaration, and those claims only, and he is not permitted to introduce new claims by amendment, for this would be regarded as being in substance, although not in form, the bringing of a new action for claims which are already barred by statute. I would only add that I do not find any injustice in applying what Lord Esher described as "the settled rule of practice". A statement of claim or, in New South Wales, the plaintiff's declaration identifies the case that the defendant is called upon to answer. He is entitled to assume that any other and different claim which is not included in the plaintiff's pleading but which the writ is wide enough to cover has been dropped from the action and if, at some later date, the plaintiff seeks to re-introduce it he ought not in fairness to the defendant be allowed to do so if by that time the claim would have been statute barred had an action then been begun to enforce that cause of action. 1. [1957] 2 Q.B., at p. 477. 2. [1957] 2 Q.B., at p. 479. 3. [1957] 2 Q.B., at p. 481. 4. [1957] 2 Q.B., at p. 482. 5. (1939) 39 S.R. (N.S.W.) 305. 6. (1887) 19 Q.B.D. 394. 7. (1964) 64 S.R. (N.S.W.) 359. 8. (1964) 64 S.R. (N.S.W.), at p. 367.

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Judgment (77 paragraphs)

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