Rules of the Supreme Court O21 r5(1), (2) and (5).

Bradshaw v Hair Transplant Pty Ltd (1986) 87 ALR 503

Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1

Cropper v Smith (1884) 27 Ch D 700

State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Sterman v E W & W J Moore [1970] 1 QB 596

Zoneff v Elcom Credit Union Ltd (1990) ATPR 41-058

In my opinion, this appeal should be dismissed for the reasons to be published by Owen J with which I am in agreement.

I have had the benefit of reading in draft the reasons to be published by Owen J, with which I am in agreement. I would therefore dismiss this appeal.

This is an appeal against a decision of a Judge of the District Court of Western Australia refusing the appellant leave to amend his statement of claim in an action for damages for injuries suffered in a work related accident.

During 1990, the appellant was employed by the respondent at mine sites in Collie. In the period from January 1990 to 12 October 1990, the appellant was employed to drive a truck on mine roads. The appellant says that the roads and the vehicle were of such construction that the vehicle was subjected to violent physical shocks, resulting in jolting which was transmitted to his body through the driver's seat. He alleges that he suffered a back injury as a consequence.

On 9 September 1994, the appellant filed a generally endorsed writ claiming damages for personal injuries suffered as a result of negligence, breach of statutory duty and breach of contract by the respondent on or about 12 October 1990. The appellant filed a certificate of notifiable causes under s6(1) of the Workers' Compensation and Rehabilitation Amendment Act 1993. The certificate gave the date of the cause as 12 October 1990.

On 8 May 1995, the appellant filed a statement of claim alleging that "on or about 12 October 1990 in the course of his employment [the appellant] was driving a 120 Haulpak vehicle --- on mine roads of such nature and construction that the vehicle was subjected to violent physical shocks --- [and] jolting was transmitted to [his] body through --- [the driver's seat] and [he] thereby suffered personal injury".

On 18 October 1995, the appellant applied to amend the statement of claim so as to allege that he had driven the vehicle on mine roads between January 1990 and December 1992 and had been exposed to constant jolts during that period and had been injured as a result. In September 1996, a District Court Judge refused the appellant leave to make the amendment because the proposed pleading was too uncertain. However, leave was reserved to make a further application.

During 1997, the appellant filed a fresh minute of proposed amended statement of claim. The amendments particularise the cause of the injury in these terms:

"Throughout the period between January 1990 and 12 October 1990 the [appellant ] drove [the vehicle] over --- mine roads ---. Throughout that period the [appellant ] drove the vehicle over the mine roads 5 days per week, 6.5 hours per day. Over the whole of the period while driving the vehicle over the mine roads the [appellant] was subject to jolting which caused the personal injuries [complained of]."

The matter came before a Deputy Registrar, who refused leave to amend. It then went to another Judge (to whom I will refer as "the trial Judge") on appeal from the Deputy Registrar. The trial Judge rejected the appeal. The appellant then sought, and obtained, leave to appeal from that decision, and it is this appeal with which the court is now concerned. In the interests of economy of language, I will refer to the proposed amendments the subject of this appeal as "the amendments".

By August 1997, when the amendments were being debated, the limitation period for commencing an action based on a tort or torts said to have been committed at some time or times between January 1990 and 12 October 1990 had expired.

What is essentially in issue in this appeal is whether the cause of action which the appellant seeks to advance by way of the amendments is a fresh cause of action from that alleged in the original pleading. Implicit in this issue is whether the cause of action recited in the minute arises substantially out of the same facts as those pleaded in the statement of claim. These points are raised in the first two grounds of appeal.

A further issue is whether the court has power to permit an amendment to add a new cause of action after the expiration of the limitation period otherwise than strictly in accordance with O21 r5(5) of the Rules of the Supreme Court. This is the issue raised by the third ground of appeal.

It is convenient to deal with the first two grounds of appeal together. It is very difficult to interpret the statement of claim in its original form as anything other than an allegation of an injury arising from a single journey in the vehicle. The essence of the claim in the amendments is a whole series of repeated events over a series of roads in a period of some nine or ten months. There is a real difference between the two versions. The first alleges an incident or a series of incidents of jolting on the one day (12 October 1990) which caused or accumulated to a cause of injury. The second refers to a series of incidents which occurred over a period of nine to ten months and which accumulated to a cause of injury. So far as concerns the second version, each incident in the series is a separate act of negligence occurring on each of various days. In effect, it is the addition of further acts of negligence over and above that or those said to have been committed on 12 October 1990.

For these purposes, it can be taken that a "cause of action" is the fact or combination of facts which gives rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 245; Judamia v State of Western Australia, unreported; FCt SCt of WA; Library No 960114; 1 March 1996 , per Malcolm CJ at 35.

I agree with the comment of the trial Judge that questions such as whether a claim is "new" or whether it arises substantially from the same facts are largely and often questions of degree. This is essentially a matter of impression and, unless it can be shown that the trial Judge misdirected himself or failed to take relevant factors into account, an appellate tribunal will be slow to interfere: Welsh Development Agency v Redpath Dorman Long Ltd [1994] 4 All ER 10 at 19. It is no objection that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arises are peculiar to it. It is enough if 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 Properties Ltd v Newton [1971] 1 WLR 862 at 880; Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 240-41.

Counsel for the appellant referred to Stone James (supra) in support of the proposition that the fact that the negligence occurred over a period did not constitute it as a separate and new cause of action. In that case, in November 1976, solicitors advised a client in relation to an agreement for an option to take up a quarry licence in relation to part of a "lot" within the meaning of the Town Planning and Development Act 1928. The term of the arrangement the subject of the option agreement was 10 years with an option to renew for a further 10 years. In February 1979, the client instructed the solicitors to exercise the option and to prepare a licence agreement. In the absence of Town Planning Board approval, an agreement for such a term was, arguably, illegal and unenforceable under the terms of the legislation. When the client was denied the benefit of the agreement, it sued the solicitors for negligence. In September 1982, the client issued a writ alleging negligence by the solicitors in the advice given in February 1979 in relation to the exercise of the option. Subsequently, leave was sought to amend the statement of claim to allege breach of contract and negligence in the giving of advice in November 1976. This was outside the limitation period. The court held that the proposed amendment arose substantially out of the same or substantially the same facts as alleged in the statement of claim and that the amendment should be allowed.

I think that Stone James (supra) can be distinguished on the facts. The negligence alleged in the original pleading was that the quarry licence agreement was entered into without the approval of the Town Planning Board. All of the material facts which were relevant to the entering into of the option agreement in 1976, and the exercise of the agreement in 1979, had been pleaded. The only thing that the proposed amendment did was to add, in relation to the exercise of the option, the necessity to obtain the prior approval of the Town Planning Board. The original pleading went on to allege the advice to enter the agreement, notwithstanding that it was illegal and unenforceable because the requisite approval had not been obtained. In these circumstances, the conclusion that the amendment arose out of the same or substantially the same facts is not surprising. The very act of negligence sought to be advanced in the amendment underpins the course of dealings between the parties and in respect of which the damage was suffered.

It seems to me that this is a different case. The impugned conduct attributed to the respondent in the original claim existed quite separately from that sought to be advanced in the amendments. Looked at in this way, the amendments involve the advancement of a new cause of action based on the various and additional acts of negligence. Counsel for the appellant submitted that this was not the appropriate way to address the issue because the cause of action did not arise until the damage had been suffered, in this case the appearance of the back injury. However, I think it is more appropriate to say that the allegation is of an injury that occurred and was then aggravated over the period. Counsel also pointed out that the impugned conduct involved the same injury arising from the same cause, namely the appellant driving the same vehicle over the same roads in the course of the same employment. Save for an argument about cause (whether aggravation involves different causation arguments from a single act), that is undoubtedly so. However, it does not get around the problem that the original statement of claim involved a single incident or a series of incidents on one day. On the other hand, the amendments sought to bring into consideration an entire course of conduct over an extended period. That seems to me to involve different facts and an expanded range of issues.

I have not been persuaded that the trial Judge misdirected himself or failed to take relevant factors into account. In this case, I think the "question of degree" to which the trial Judge referred resolves itself in favour of it being described as a fresh cause of action in the sense of a "new claim on a new basis": Bill Discount Services Pty Ltd (In Liquidation) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987 , per Burt CJ at 3. There is undoubtedly some overlap between the facts out of which the cause of action originally propounded arises, namely the driving of the vehicle on 12 October 1990, and the facts relevant to a cause of action based on the driving of the vehicle over the ten month period referred to. The trial Judge concluded that the degree of overlap was not sufficiently substantial to bring it within the test as explained in the authorities. In my opinion, as a matter of impression, the greater range of facts and circumstances which it would be necessary to canvass if the amendment were to be permitted justify that view.

I think the allegation of negligence arising from the driving of the vehicle in the period between January 1990 and 12 October 1990 involved the addition of a fresh cause of action. I also think that it was a fresh cause of action that did not arise from the same or substantially the same facts as those alleged in the original statement of claim. Accordingly, grounds (i) and (ii) of the grounds of appeal have not been made out.

The Extent of the Discretion to Permit Amendments

The appellant contended that even if the amendments did not arise from the same or substantially the same facts, the court still had a discretion to permit the addition of a new cause of action outside the relevant limitation period. This is the matter raised in the third ground of appeal. It involves the proper construction of the Rules of the Supreme Court.

"(1) Subject to --- the following provisions of this Rule, the Court may --- allow --- any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph ---(5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in the paragraph if it thinks it is just to do so.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

The argument advanced by the appellant is that there is a broad discretion conferred on the court by O21 r5(1) and it is not one that is confined by the combined wording of O21 rr5(2) and (5). Put in a slightly different way, when confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute-barred, the court has a two-fold discretion. The amendment can be allowed under O21 r5(5) if the conditions set out in that rule are satisfied. Even if those conditions are not satisfied, the court can permit the amendment under the general discretion conferred by O21 r5(1) if it is in the interests of justice so to do. This is a question which was discussed (but left open) both in Brickfield (supra), at 873, 879 and 881, and in Stone James (supra) at 240, 242 and 249.

The starting point for this discussion is the rule in Weldon v Neal. In Weldon v Neal (1887) 19 QBD 394 , Lord Esher MR said, at 395:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice 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."

Order 21 r5 is in substantially similar terms to O20 r5 of the English Rules. Prior to the comprehensive review of the Rules of the Supreme Court in 1971, there was no equivalent provision to that which now appears in O21 r5. It is generally accepted that the English Rules were amended to alleviate the strict application of the rule in Weldon v Neal and that the adoption of similar provisions in our rules in 1971 was for the same purpose. The question which now arises is the extent of the changes intended by the new rule.

Prior to 1980, there were competing lines of authority in England as to the appropriate answer to this question. One line is exemplified by Heavan v Road and Rail Wagons Ltd [1965] 2 QB 355, Braniff v Holland & Hannan and Cubitts (Southern) Ltd [1969] 1 WLR 1533 and the views of Edmund Davies LJ and Cross LJ in Brickfield (supra) to the effect that the discretion is limited to the circumstances specifically provided for in O21 r5(5). The other line is that espoused by Lord Denning MR in Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 5 and Sterman v EW & WJ Moore [1970] 1 QB 576 and by Sachs LJ in Brickfield (supra). In Sterman (supra), Lord Denning MR explained his view in these terms, at 5:

"Since the new rule, I think we should discard the strict rule of practice in Weldon v Neal ---. The Courts should give O20 r5(1) its full width. They should allow an amendment whenever it is just to do so, even though it may deprive the defendant of a defence under the Statute of Limitations."

In England the controversy has been settled by an amendment to the Limitation Act 1980 (UK) which disavows the more expansive approach advocated by Lord Denning and restricts the discretion to the circumstances specified in O20 r5(5).

There are divergent lines of authority in Australia as well. This is not surprising in view of the fact that the relevant rules in the various jurisdictions are in slightly different forms.

In New South Wales, the power to amend has been interpreted to be of wide import: see, for example McGee v Yeomans [1977] 1 NSWLR 273. However, there is a specific provision to the effect that the equivalent to r5(5) of our rules is without prejudice to the equivalent to r5(1). The Queensland rules are, for all practical purposes, the same as the rules in this State. In Adam v Shiavon [1985] 1 Qd R 1 at 7, the court followed McGee (supra) but without referring to the difference in wording of the rules. In any event, the case was decided under the equivalent to r5(5). My research did not unearth a case in which the exact question had arisen in Victoria or Tasmania.

In South Australia, the issue has developed over a period. Karasaridis v Kastoria Fur Products (1984) 37 SASR 345 raised similar issues to those under consideration in this appeal. The writ alleged personal injury arising from a specific incident at work. After the expiry of the limitation period, the plaintiff sought to amend the statement of claim to allege that she sustained the injury because of cumulative muscular strains. Zelling J held that the amendment should be allowed under the equivalent to r5(5). His Honour did not need to deal with the width of r5(1). Jacobs J found that the proposed amendment did not involve a new cause of action. Had it done so, his Honour would have been prepared to allow the change under r5(5). King CJ dealt with the precise question that is raised by the third ground of appeal in this matter. His Honour said, at 351:

"I do not think --- that [O21 r5] carries the present application any further. Subrule (1) is expressed to be subject to the following provisions of the rule. The authority expressly conferred by subrule (2) to grant leave to amend after the expiration of the time limit, is expressed to exist only in the circumstances mentioned in subrules (3), (4) and (5). The amendment sought in the present case is not of the type provided for in either subrule (3) or (4). Nor do I think that subrule (5) can apply. That subrule appears to be designed to permit an amendment raising a new cause of action in the sense of a new legal categorisation of the facts in respect of which relief has already been claimed. That is not the purpose of the present application. The amendment sought raises a new cause of action, not by way of legal categorisation of the facts already pleaded, but by adding a claim in respect of a different injury alleged to be caused by different facts. There is a new cause of action precisely because the new claim is not based on the same or substantially the same facts."

I think that the reference in this passage to a "different injury" is to the cumulative or aggravating effect over time as opposed to trauma arising from a specific incident. Once this is understood, it seems to me, with respect, that his Honour's reasoning is compelling and (notwithstanding that it was a dissenting judgment) I adopt it. To the extent that the conclusion reached by Zelling and Jacobs JJ may seem to support the contentions advanced by the appellant in this appeal, I can only make the obvious comment that each case depends on its own facts and on the pleadings that are in issue. In any event, I find the analysis of King CJ, at 349, concerning the nature of an injury arising from cumulative and repetitive happenings, once again, to be compelling. Later decisions in South Australia show a tendency to support the views expressed by King CJ in Karasaridis; see, for example, Brook v Flinders University of South Australia (1988) 47 SASR 119 at 131; Cliff v Quinn (1990) 54 SASR 151 at 161-62, and Swietlik v Central Linen Service [1992] SASC 3024; (1991) 56 SASR 569 at 572-73.

Until 1994, the Federal Court Rules contained only a provision in similar terms to O21 r5(1) without the subsequent subrules: see O13 r2(1). The relevant Federal Court decisions proceeded on the assumption that the rule in Weldon v Neal applied, notwithstanding the wide power of amendment in O13 r2(1). The authorities are collected in Halsbury's Laws of Australia, Vol 20, para 325-3020, note 7, and I do not need to discuss them. This position was confirmed by Toohey J (with whom Deane J agreed) in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 545, 561-62. In 1994, both the Federal Court of Australia Act 1976 (C'th) and the Federal Court Rules were amended to overcome the rule in Weldon v Neal consequent upon the decision of the High Court in Wardley. Order 13 r2 is now in substantially similar terms to O21 r5, save that there is an additional subrule that mirrors the provisions of O21 r7(1). This is not material for present purposes.

So far as I am aware, there are only two reported cases in which O13 r2, in its amended form, has been considered. In Harris v Western Australian Exim Corporation (1994) 56 FCR 1 , the statement of claim contained a claim under s52 of the Trade Practices Act 1976 (C'th). The plaintiff sought to amend to add a claim under s10 of the Fair Trading Act 1987 (WA), but the limitation period in s79(2) of that Act had expired. Hill J allowed the amendment, relying on O13 r2(3), which is the equivalent of O21 r5(2). No reference is made in the judgment to the provisions that are equivalent to O21 rr5(1) and (5). Nor is there mention of the issue that arises under ground (iii) in this appeal or of any of the authorities that I have canvassed, other than McGee (supra), and then in another context. Of course, s10 of the Fair Trading Act is in identical terms to s52 of the Trade Practices Act, and the causes of action under each are quite similar. Hill J remarked (at 10) that the factual matters relied on for the State based claim were identical to those already pleaded for the Trade Practices claim, save in two respects. As to those two matters, his Honour remarked that they added "little to the overall factual dispute between the parties". The discretion to permit the amendment can therefore be seen as coming within O21 r5(5).

In Grundy v Lewis (1995) 62 FCR 567 , Keifel J allowed an amendment to a cross-claim under O13 r2(3). In so doing, her Honour adverted expressly to the equivalent of O21 r5(5) and held that the proposed claim arose substantially out of the same facts as had already been pleaded. Again, there is no discussion in the judgment of the precise question that this appeal raises. I can see nothing in either Harris or Grundy that is contrary to the view to which I have come as to the proper construction of O21 r5.

In light of the authorities, and as a matter of construction, I think the effect of the rules is that the rule in Weldon v Neal continues in force in truncated form, being qualified only to the extent that O21 r5 allows some amendments out of time for certain limited purposes. Relevantly, when confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute-barred, the court has a discretion to allow the amendment under O21 r5(5) if the conditions set out in that rule are satisfied. The general discretion in O21 r5(1) is limited to that extent.

It seems to me, therefore, that once the trial Judge had decided that the amendments did not come within O21 r5(5), that was an end to the matter. His Honour was correct in deciding that O21 r5(1) does not confer on the court a general and further discretion to permit amendment, despite the expiry of the relevant limitation period. Ground (iii) has not been made out.

In my view, the proposed amendment seeks to advance a new cause of action. It cannot be said to be a new cause of action arising from the same or substantially the same facts as already pleaded. For these reasons, I would dismiss the appeal.