PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COURT SUPERVISION – AMENDMENT – ORIGINATING
PROCESS, PLEADINGS ETC
– where the plaintiffs have filed an application under r 376(4) of
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –COURT SUPERVISION – AMENDMENT – ORIGINATINGPROCESS, PLEADINGS ETC– where the plaintiffs have filed an application under r 376(4) ofthe Uniform Civil Procedure Rules 1999 (Qld) and s 16 CivilProceedings Act 2011 (Qld) for leave to file and serve a further amendedstatement of claim – where the application is made after the expirationofthe limitation period – where the proposed amendments fundamentallyconcern the addition of a cause of action in publicnuisance arising out of thesame or substantially the same facts as the claim in negligence – wherethe essential questionposed by r 376(4) is whether the new cause of action is
fundamentally bad in law and ought not be allowed – where the amendment
is
made late but the matter is not yet ready for trial – where there is no
particular prejudice – whether the plaintiffs
should be granted leave
Civil Liability Act 2003 (Qld), s 36
Civil Proceedings
Act 2011 (Qld), s 16
Personal Injuries Proceedings Act 2002
(Qld), 59
Uniform Civil Procedure Rules 1999 (Qld), r
376
Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for
Orchid 17 CTS 11906 [2025] QSC 260
Brodie v Singleton Shire Council
[2001] HCA 29
(2001) 206 CLR 512
Devine Constructions Pty Ltd v Heinrich
Constructions Pty Ltd [2024] QSC 285
Hamcor Pty Ltd v Queensland
[2014] QSC 224
Leichhardt Municipal Council v Montgomery [2007] HCA 6
(2007)
230 CLR 22
McFadzean v Construction Forestry Mining and Energy Union
[2007] VSCA 289
(2007) 20 VR 250
Menegazzo v Pricewaterhousecoopers (a firm) [2016]
QSC 94
Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227
(2024) 115 NSWLR
489
Wolfe v The State of Queensland [2008] QCA 113
[2009] 1 Qd R 97
Judgment (83 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC - where the plaintiffs have filed an application under r 376(4) of the Uniform Civil Procedure Rules1999 (Qld) and s 16Civil Proceedings Act 2011 (Qld) for leave to file and serve a further amended statement of claim - where the application is made after the expiration of the limitation period - where the proposed amendments fundamentally concern the addition of a cause of action in public nuisance arising out of the same or substantially the same facts as the claim in negligence - where the essential question posed by r 376(4) is whether the new cause of action is fundamentally bad in law and ought not be allowed - where the amendment is made late but the matter is not yet ready for trial - where there is no particular prejudice - whether the plaintiffs should be granted leave
R J Douglas KC with B J Stringer for the plaintiffs/applicants
[16]
McInnes Wilson Lawyers for the plaintiffs/applicants
[17]
[1] This is an application by the first and second plaintiffs for leave to amend the statement of claim to add a further cause of action. A proposed further amended statement of claim was provided to the defendants for their consideration prior to listing the application but the defendants did not consent to the grant of leave. Accordingly, leave is required pursuant to r 376 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"). In the alternative the plaintiffs seek leave pursuant to s 16 of the Civil Proceedings Act2011 (Qld) ("CP Act"). In the circumstances of this case nothing turns on the difference as to whether leave is granted under the UCPR or the CP Act.
[2] Lengthy written submissions were filed on behalf of all the parties prior to the hearing.
[3] A summary of the factual matters which are not in dispute is as follows.
[18]
[4] On 6 June 2020, the first plaintiff was riding his bicycle along a pathway (the Path) in Virginia when he sustained serious injuries when he collided with what is described as a Lock Rail (the Lock Rail) installed on the Path. I will return to the location of the Lock Rail shortly.
[5] The first and second plaintiff, the second plaintiff being the first plaintiff's wife, commenced an action against the Brisbane City Council and the State of Queensland pursuant to the provisions of the Personal Injuries Proceedings Act 2002 (Qld) ("PIPA"). The claims were commenced in negligence.
[6] The limitation period in respect of both claims expired on 6 June 2023.
[7] Prior to the expiration of that limitation period, certain steps were taken to preserve the limitation period by the grant of an order pursuant to s 59 of PIPA.
[8] On 15 November 2023, the parties participated in a compulsory conference in compliance with s 36 of PIPA.
[9] The plaintiffs filed their claim and statement of claim on 19 December 2023.
[10] A mediated conference was held on 8 August 2024 and neither matter was resolved.
[11] On 14 May 2025, the plaintiffs gave notice of a proposed amendment to include a new cause of action in nuisance. It can fairly be accepted that at the point in time at which the plaintiffs first gave notice of the proposed amendment to include the new cause of action, the original limitation period had expired by almost two years. The opposition to the grant of leave to include the new cause of action however, is not based on the mere effluxion of time. Effectively the defendants oppose the grant of leave on three bases. First, that the cause of action in nuisance is not a viable one. The defendants contend that even had the cause of action been pleaded within time, it would have been liable to be struck out and as such it is futile to now grant leave. Second, although with considerably less enthusiasm, the defendants argue that the amendment does not arise out of substantially the same facts. Third, on discretionary grounds the defendants submit that the delay is not properly explained.
[19]
[12] There is no genuine dispute as to the applicable principles to be applied. The court has a wide discretion to make an order under r 376 of the UCPR. The court must carry out a fair reading of the existing pleading,[1] with the essential question posed by r 376(4)(b), being whether the new cause of action arises out of substantially the same facts as a cause of action for which relief has already been claimed.[2]
[13] When considering whether it is appropriate to allow an amendment within the meaning of r 376(4)(a), the principles include that leave to amend the pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to the payment of costs by way of compensation.[3] Equally, there needs to be an adequate explanation or justification for including the amendment, including any explanation for the delay. The interests of justice require considerations of prejudice if the amendment is allowed.
[20]
[14] I deal with the argument that the defendants contend the cause of action in nuisance is not viable first, although some of what I say about this also goes to the question of whether it arises out of the same or substantially the same facts.
[15] When I refer to the pleading below, I refer to the amended statement of claim filed in October 2024.
[16] Both parties accept, for the purposes of this proceeding, I can proceed on the basis that the first plaintiff was travelling in a southerly direction along Sandgate Road towards the intersection of Toombul Road when the first plaintiff was directed by road signage on Sandgate Road to move onto a Path parallel to Sandgate Road. The signage consisted of directions "Bicycles Must Exit" and "No Bicycles" being the signs that directed the first plaintiff, as a cyclist, on to the Path parallel to Sandgate Road.
[17] I make particular reference to para 1(d) of the amended statement of claim which pleads that the first plaintiff, "was directed, by road signage created on Sandgate Road mandating directional passage, by cyclists, on to a path parallel to the Road (the Path)". That description was given, definitionally, the description of "the Path". Those facts are admitted on the pleadings.
[18] The amended statement of claim then pleads at para 1(db) that the first plaintiff cycled on to and along the Path towards the Downfall Creek and the commencement of Whitfield Street. At para 1(dd), the plaintiffs plead that the first plaintiff collided with the Lock Rail, consisting of two vertical posts across which was a fixed and locked horizontal bar, described as the Lock Rail, which was erected "at the commencement of Whitfield Street".
[19] Both defendants admit the facts as alleged contained in para 1(dd).
[20] At para 1A the plaintiffs plead:
[21]
(a) The Path joined the Bikeway a short distance north of Whitfield Street, but only after a veer to the west;
[22]
(b) Whitfield Street continued south, in the same direction as the Path as it met the Bikeway;
[23]
(c) The Bikeway had a concrete sealed surface, was light in colour and traversed the Path, east-west, at close to a right angle;
[24]
(d) The Path, as it approached the Bikeway, and Whitfield Street, respectively had a bitumen (or like) sealed surfaced and was dark in colour;
(f) The Path was within the road reserve of Sandgate Road;
[27]
(ii) alternatively a "local government road" within the meaning of the TIA;
[28]
(h) Pursuant to s.28 of the TIA the State of Queensland, by its Departmental Executive, in respect of an SC Road in a local government area, could exercise all the powers that the local government may exercise for a local government road in an area;
[29]
(i) Any power exercised by a local government in respect of an SC Road was regulated by s.45 of the TIA, with the relevant local authority enjoying a power of direction as to work to be undertaken , by the first defendant, to such road;
[30]
(j) Further or in the alternative, the State of Queensland could contract with the relevant local authority, or alternatively direct it to carry out, or refrain from carrying out, work to land it owned adjacent to, or on, any State controlled road."
[31]
[21] The plaintiffs plead at para 7 of the amended statement of claim that between about November 2009 and November 2013, the Path was altered and the Bikeway (being the definition of the Downfall Creek Bikeway) was designed and constructed, and new features so designed and constructed included the installation of the Lock Rail, "perpendicular to the direction of travel with the gap between the left of the Lock Rail and the gutter of Whitfield Street being around 1.8 metres".[4] The first defendant's defence to the allegations in para 7 of the amended statement of claim includes an allegation that the Lock Rail was "on Whitfield Street" and was not installed on the Bikeway.
[22] In respect of the same allegations in the amended statement of claim, the second defendant in its amended defence purported to admit an allegation which in my view is not actually made by the plaintiffs. At para 7(d), the second defendant admitted that the Plans (also a defined term) included the installation of the Lock Rail at the end of Whitfield Street in circumstances where the plaintiffs had not on the pleading made an allegation that the Plans included such an installation. Rather the plaintiffs' pleaded case at para 7 was, as I have said, that the installation of the Lock Rail was perpendicular to the direction of travel of the first plaintiff with the gap around 1.8 metres between the Lock Rail and the gutter of Whitfield Street.
[23] At para 7A, the plaintiffs pleaded that as a result of the works pleaded in para 7 and the infrastructure around the works, by mid-morning in the month of June on an ordinary sunny day, the area of the Path approaching the Bikeway and the Lock Rail was caused to be in shadow or alternatively dappled in shadow.
[24] At para 7D, the plaintiffs pleaded that the design and state of the Bikeway and the Path was such that:
[32]
(a) there was no facility for a southbound cyclist, such as the first plaintiff, to safely access Toombul Road beyond the Toombul Road roundabout such that any cyclist taken by whatever route adopted from the Path being taken to such roundabout;
(b) the Lock Rail was in the path of travel for such a cyclist proceeding south and endeavouring to access Toombul Road;
(c) Whitfield Street was the observable apparent route for such a cyclist;
(d) the design and construction adopted did not discourage or prevent a cyclist from using Whitfield Street as an available route to continue to south to access Toombul Road;
(e) the Lock Rail was not readily visible by such a cyclist but in particular when in shadow.
[33]
[25] Variously, but in conjunction with the other particulars that I have set out, these were described in the pleadings as, "the Unsafe Design Features of the Bikeway and Path".
[26] The plaintiffs then plead at para 7E, that neither before the design or the construction of the Bikeway or the alteration of the Path did any of the first defendant's servants or agents do a number of things including: conduct an audit to determine whether the Bikeway construction or the Path alterations were necessary, consider safety risks that users of the Bikeway and the Path including cyclists faced, conduct any risk assessment or audit before installing the Lock Rail, and numerous other failings which are pleaded at para 7E. Similar but not identical allegations are made against the second defendant. Other aspects of the alleged nuisance include allegations about the failings of the DMR Works Review System (para 7H), the DMR's Review Process (para 7K), and the Signage (paras 8 - 8D).
[27] By the proposed further amended pleading, the plaintiffs do not seek to make any alterations to those parts of the statement of claim to which I have already referred. The proposed amendments to the pleading arise out of the amendments inserting paras 10A, 10B, 11A, 11B and 12:
[34]
"10A. By reason of the breaches pleaded above in paragraph 10, the first plaintiff suffered the injuries pleaded below in paragraph 12.
[35]
10B. Further or in the alternative to paragraphs 10 and 10 A:
[36]
(a) In the premises of the matters pleaded above in paragraphs 1, 1A, 5, 7 to 7G and 9(a);
[37]
(i) The Lock Rail, in the context of the Unsafe Design Features of the Bikeway and Path (pleaded above in paragraph 7D), constituted a substantial and unreasonable interference with the use of the Path by the first plaintiff;
[38]
(ii) The first defendant knew, or ought reasonably have known of such interference had it undertaken the BCC Design and Review Process;
[39]
(iii) The first defendant created, maintained, adopted and, or in the alternative, did not remove such interference;
[40]
(b) By reason of the first plaintiff's bicycle colliding with the Lock Rail, he sustained particular damage, namely the injuries pleaded below in paragraph 12 and consequent loss and damage;
[41]
(c) In the premises of this paragraph, such interference constituted a danger:
[42]
(i) To cyclists using the Path, in respect of the Relevant Risk (pleaded above in paragraph 3(b));
[43]
(ii) Which caused (because of the matters pleaded above in paragraph 9A(a)) the first plaintiff to suffer injury loss and damage.
[44]
In failing to undertake the DMR Works Review System, the DMR Review Process and, or alternatively, the DMR Signage Process, the second defendant breached its duty of care owed to the first plaintiff, and its employees involved also breached their duty.
[45]
11A. By reason of the breaches pleaded above in paragraph 11, the first plaintiff suffered the injuries pleaded below in paragraph 12.
[46]
11B. Further or in the alternative to paragraphs 11 and 11A:
[47]
(a) In the premises of the matters pleaded above in paragraphs 1, 1A, 4, 5, 7 to 7D, 7H, 7I, 7K to 8C and 9A(b):
[48]
(i) The Lock Rail, in the context of the Unsafe Design Features of the Bikeway and Path (pleaded above in paragraph 7D), constituted a substantial and unreasonable interference with the use of the Path by the first plaintiff;
[49]
(ii) The second defendant knew, or ought reasonably have known of such interference had it undertaken the DMR Works Review System, the DMR Review Process and, or alternatively, the DMR Signage Process respectively;
[50]
(iii) The second defendant created, maintained, adopted and, or in the alternative, did not remove such interference;
[51]
(b) By reason of the first plaintiff's bicycle colliding with the Lock Rail, he sustained particular damage, namely the injuries pleaded below in paragraph 12 and consequent loss and damage;
[52]
(c) In the premises of this paragraph, such interference constituted a danger:
[53]
(i) To cyclists using the Path, in respect of the Relevant Risk (pleaded above in paragraph 3(b));
[54]
(ii) Which caused (because of the matters pleaded above in paragraph 9A(b)) the first plaintiff to suffer injury loss and damage.
[55]
As a result of the first defendant's failures conduct and, or alternatively second defendant's failures conduct, each pleaded above, the first plaintiff sustained personal injuries, being including:
[56]
[28] The effect of the proposed amendments is to include a claim purporting to make out a private right of action against each of the defendants in the tort of public nuisance.
[29] While there are a number of ways in which an action for public nuisance at common law may be commenced, the only one which is relevant to the circumstances of this proceeding, is where the individual can demonstrate that he has suffered substantial particular damage beyond that suffered in common by all other members of the public affected by the nuisance.[5]
[30] In their joint submissions, the defendants contend that the plaintiffs seek to make out a private right of action against each of the defendants in the tort of public nuisance, the public nuisance being the Lock Rail "and its position on Whitfield Street" that is alleged to constitute a substantial and unreasonable interference with the use of the Path.
[31] The defendants contend that a private right of action in the tort of public nuisance is "entirely misconceived" because insofar as claims against highway or road authorities are concerned, the tort of public nuisance in fact no longer exists or, if it still exists, no longer remains distinct from the tort of negligence, the former having been absorbed by the latter.
[32] The defendants rely upon Brodie v Singleton Shire Council,[6] where at 570, Gaudron, McHugh and Gummow JJ said:
[57]
"The time has now come, by parity with the reasoning in Burnie Port Authority v General Jones Pty Ltd, to treat public nuisance, in its application to the highway cases, 'as absorbed by the principles of ordinary negligence'. In any event, as has been indicated above, the intrusion of nuisance into this field in the mid nineteenth century lacked any firm doctrinal basis."
[58]
[33] Those remarks were followed by Gleeson CJ and Hayne J (with each of whom Crennan J agreed) in Leichhardt Municipal Council v Montgomery,[7] where Hayne J said at [150]:
[59]
"But there is a further aspect of the decision in Brodie and Ghantous that is of critical importance. The court held that the time had come 'to treat public nuisance, in its application to the highway cases, 'as absorbed by the principles of ordinary negligence'. It follows that if any principle of non-delegable duty is now to be applied to highway authorities, it must now find its roots elsewhere than in the law of public nuisance."
[60]
[34] It follows, as the defendants contend, that the only cause of action that the plaintiffs have against each of the defendants is in the tort of negligence and therefore it is not appropriate to allow the amendment, either by r 376 of the UCPR or s 16 of the CP Act, as the proposed amendment seeks to add a cause of action which does not exist or which has been absorbed by the cause of action in negligence that is already pleaded. On that basis alone, the defendants contend that the plaintiffs' application must be dismissed because it would be futile to add a cause of action which cannot be sustained, or which is bad in law.
[35] Unsurprisingly, there is no difficulty with the proposition that the court would not give leave to make an amendment to the statement of claim if the cause of action sought to be added was bad in law or futile.
[36] But I do not take the cases to demonstrate that the tort of nuisance does not continue to apply to other than "highway cases". In fact, the submissions made on behalf of all of the parties seem to accept that the tort still exists in relation to a range of other cases.
[37] While I accept the proposition made by the defendants that the "highway case" principles will not apply to tort of public nuisance, that is only so if the defendants are able to demonstrate that, unarguably, the case as pleaded falls into the category of the "highway cases". But if the nuisance as pleaded is not in fact a part of the highway, or might be found at the conclusion of the proceeding not to be part of the highway, it seems to me that the defendants' primary argument against the amendment falls away, and the plaintiffs would not be deprived of the opportunity to argue that cause of action.
[38] The defendants strenuously press that this is a "highway case" and therefore the tort of public nuisance is not available to be pleaded separately to the alleged negligence. Specifically, the defendants maintain that despite the pleading by the plaintiffs that the Lock Rail was erected "at the commencement of Whitfield Street",[8] that it in truth was and remains on Whitfield Street. Put another way, the defendants cavil factually before me with the allegation in amended statement of claim para 1(dd) which is admitted on the pleadings.
[39] It seems far from clear to me that on an interlocutory application such as this, I could safely conclude that the location of the Lock Rail was on Whitfield Street or, perhaps more importantly, that whatever its surveyed position (of which there is no evidence), I could be satisfied the position of it was such that it was necessarily caught by the principle set out in case.
[61]
"The Respondent [Brisbane City Council] understands the "bikeway" previously operated as a roadway and was converted to a bikeway at some point in the past. This conversion is assumed to have occurred when the Sandgate Road/Toombul Road interchange was upgraded to include grade separation ... It should be noted that the Sandgate Road/Toombul Road interchange is not a Council asset. Exact construction dates of this interchange should be obtained from the Queensland Government/Department of Transport and Main Roads.
[62]
The Respondent maintained asset records showing the bridge over Downfall Creek on the bikeway was constructed in 1923. It is assumed the bikeway (originally a road) may have been constructed at the same time (1923), however, construction details are not available for the pathway component of the bikeway. No records are available showing the exact date of the design and construction of the bikeway."
[63]
[44] Then in response to a question as to the involvement of any other party in the design and construction of the Bikeway, Mr Douglas deposed:
[64]
"The Queensland Government Department of Transport and Main Roads (DTMR) own and manage Sandgate Road and the Sandgate Road/Toombul Road interchange. Design and construction of the bikeway may have involved DTMR, particularly as it relates to the construction of the Sandgate Road/Toombul Road interchange and conversion of former roadway into the "bikeway", however, this cannot be confirmed."
[65]
[45] Based on the combination of the admissions on the pleadings, and the evidence to which I have referred above, it is far from clear to me that:
[66]
(a) the location of the point of the accident at the Lock Rail is a location captured by the "highway case" exclusion;
(b) the Bikeway, the Path, the Lock Rail and the combination of them (or some of them) are locations captured by the "highway case" exclusion;
(c) The Unsafe Design Features of the Bikeway and Path (which give rise the to pleaded nuisance) are features which would be captured by the "highway case" exclusion; or
(d) DMR Works Review System (para 7H), the DMR's Review Process (para 7K), and the Signage (paras 8 - 8D), are features which would be captured by the "highway case" exclusion.
[67]
[46] As a factual contention, the defendants might ultimately be right about the issue that the location of the nuisance is found to be on an area governed by the 'highway cases' principle, but it is not an issue which the court can resolve on an interlocutory basis and certainly not without hearing evidence in relation to it.
[47] I do not accept as submitted on behalf of the defendants that the position is so clear that the cause of action is one which cannot possibly be sustained, such that the grant of leave is futile.
[48] It seems to me, an additional basis to allow the amendment is that, the case to be pleaded by the proposed further amended statement of claim is not just, as the defendants seem to suppose, that the public nuisance was created by the Lock Rail itself, but rather by the combination of the Signage and of the Unsafe Design Features of the Bikeway and Path, such that the nuisance as pleaded has occurred over a continuum but not at one particular location. This means that only after hearing all the evidence, will the court need to consider whether, and at what points, the "highway cases" exclusion might apply. That is because that which constituted the substantial and unreasonable interference with the use of the Path, might not merely be the position of the Lock Rail itself, whether on Whitfield Street or otherwise.
[49] Put another way, the defendants' assertions that this is unequivocally a "highway case" as set out in their further joint submissions might well transpire to be matters which the facts will be found, after a trial, to demonstrate. Currently however they are mere assertions, and certainly not admitted facts on the state of the pleadings. To the extent that the facts are revealed by the current state of the pleadings, I would conclude in any event that the admitted facts suggest that the case may well not be a "highway case". It does not however fall to me to decide the issue one way or the other, but that review of the pleadings causes me to consider that the case which is raised by the plaintiffs is fairly arguable, not one which is futile, or bad in law, and one which ought to be determined upon the factual findings made after a trial.
[50] That is enough to determine the application in the plaintiffs' favour.
[51] Even if on the pleadings and the current state of the evidence there was greater doubt than that which I currently consider that there is, I turn to consider whether, even in a more marginal case, it would be appropriate to grant leave to amend.
[68]
Arising out of the same or substantially the same set of facts
[69]
[52] It seems to me plain that the proposed further amended pleading arises out of the same or substantially the same set of facts. The very detailed pleadings particularising the Unsafe Design Features of the Bikeway and the Path pleaded between paras 7 and 8D as the same factual matrix for the basis of the nuisance claim.
[53] It is difficult to envisage any new or fresh approach to the case that is not currently comprehended by those paragraphs which are not the subject of the proposed amendments. Although the defendants maintain that the court would not be satisfied that the purported cause of action arises out of the same or substantially the same facts, I am entirely so satisfied.
[70]
The court considers it appropriate to grant leave to amend
[71]
[54] The defendants submit that the plaintiffs have failed to provide a reasonable and adequate explanation for the delay in bringing forward the proposed amendment. I do not accept the submissions on this issue.
[55] The solicitor on behalf of the plaintiffs has deposed in her affidavit that it was not until she was advised by senior counsel, who was engaged well after the filing of the statement of claim, that there may have been an argument available to her client arising out of authority in New South Wales that might give rise to the cause of action in the tort of nuisance.
[56] The solicitor was not required for cross-examination. In the circumstances I accept her evidence that she was not previously aware of the authorities which senior counsel discussed with her which opened the possibility of the claim in public nuisance. In my view that is an entirely adequate explanation.
[57] Whilst the submission was made that the original statement of claim was settled by counsel, and the court would infer that a conscious decision was made at that point not to plead a claim in nuisance, in fact the converse inference is open, being that counsel must not have discussed the alternative cause of action with Ms Billiau, otherwise she would have known of it at an earlier time. I am entirely satisfied that there has been an adequate explanation for the delay.
[58] In addition to that, I note that there is no decision in Queensland concerning whether s 36 of the Civil Liability Act 2003 (Qld) ("CLA") might apply to a cause of action in nuisance. Indeed, the only Queensland decision relating to the scope of s 36 of the CLA was a decision of Dalton J (as her Honour then was) in Hamcor Pty Ltd v Queensland,[9] construing s 36 of the CLA as applying only to a cause of action for damages for breach of statutory duty. The solicitor on behalf of the plaintiffs, who I accept is an experienced practitioner, deposes that senior counsel advised her of the decision of the New South Wales Court of Appeal in the matter of and that the issue was raised with her first by senior counsel sometime after that decision was handed down.
[72]
[62] In the event of the application being allowed, the plaintiffs ask that costs be reserved.
[63] The defendants however seek that the plaintiffs pay the costs of the application even if the plaintiffs are successful. This is put on the basis that firstly, it is an indulgence for the plaintiffs to ask for leave to amend when the limitation period has already expired, and secondly, that where the issues are significant, and not straightforward, it might be appropriate in any event for the plaintiffs to pay the costs of the application even where the application for leave is successful. The defendants submit that the ordinary order for costs therefore is that the plaintiffs pay the defendants' costs on the standard basis.
[64] Whilst there might well be circumstances in which it is appropriate to order the plaintiff to pay a defendant's costs even where the application for leave is successful,[11] this is not such a case. That is because on 14 May 2025 the plaintiffs' solicitors wrote to the defendants seeking consent to the amendment to the statement of claim. A copy of the proposed further amended statement of claim was enclosed with that correspondence. The basis for the amendment was carefully articulated. The defendants did not reply and on 4 June 2025 the plaintiffs followed up for a response. On 6 June 2025, the solicitors for the defendants advised that they would consider the position after the plaintiffs had filed and served their material. Additionally, the defendants expressed that they would seek advice from counsel.
[65] On 10 July 2025, the solicitors for the State of Queensland further advised that they would consider their position after receipt of the plaintiffs' material. On 8 August 2025, the plaintiffs filed and served this application. The matter was placed on the civil list after being transferred from the applications list. The hearing proceeded on 25 November 2025. By that stage the defendants had had the draft of the proposed further amended statement of claim for almost six months and an explanation for the basis for it. It seems to me that that was ample time for the defendants to consider that it was appropriate to consent to leave being given to amend the statement of claim. It ought to have been apparent in my view that the substantial issues, which I accept are complex, could only properly be determined at a trial.
[11]Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906[2025] QSC 260.
Parties
Applicant/Plaintiff:
White
Respondent/Defendant:
Brisbane City Council [2025] QSC 318
Legislation Cited (5)
Civil Procedure Rules 1999
Proceedings Act 2011
Liability Act 2003
Injuries Proceedings Act 2002
Infrastructure Act 1994
Cases Cited (4)
(2001) 206 CLR 512
(2007) 230 CLR 22
(2007) 20 VR 250
(2024) 115 NSWLR 489
Brodie's
[40] Exhibited to the affidavit of Mr Daniel McCormack, solicitor on behalf of the first defendant, is a statutory declaration provided by Mr Dallas Lee of the Brisbane City Council. Mr Lee was at the time of the statement an engineer with the Council. By reference to a set of plans from 2008, at which time the Downfall Creek Bikeway was yet to be constructed, Mr Lee described that Whitfield Street appeared to be a "disused road that now functions as a Bikeway". His statutory declaration goes on to identify that in terms of maintenance responsibility, Sandgate Road is a state controlled road and the Sandgate Road carriageway, including the bike lane, is the responsibility of the Department of Transport and Main Roads, whilst the Downfall Creek Bikeway, the Path from Sandgate Road to the Whitfield Street bridge, the bridge and the remainder of Whitfield Street, was the responsibility of the Brisbane City Council.
[41] I pause to note that maintenance responsibility does not equate necessarily with whether the area in question is a road or a footpath for the purposes of the application of the "highway case" principles.
[42] Elsewhere it is identified in an affidavit of Mr Steen Hansen, principal engineer at the Brisbane City Council, that the Lock Rail is located "on Whitfield Street" and is positioned on the road. Mr Hansen was not required for cross examination, but his evidence is arguably inconsistent with admission on the pleadings of para 1(dd) of the amended statement of claim.
[43] In a further affidavit from Ms Rose Edmondson, solicitor of McInnes Wilson Lawyers, Ms Edmondson produced a statutory declaration of Mr James Douglas, senior transport planner with the Brisbane City Council. In response to the question, did the Brisbane City Council construct and design the Bikeway where the incident occurred, Mr Douglas responded:
[59] But in any event having considered that the circumstances in this case are ones which so squarely arise out of the same or substantially the same facts, that is a powerful factor in favour of the grant of leave, such that it would in my view outweigh even a less compelling explanation for the delay. There is however, no such less compelling explanation in this case.
[60] In any event, the defendants do not generally suggest that there is any particular prejudice as a consequence of the delay. The Brisbane City Council's own evidence in the affidavit of Ms Edmondson, producing the statutory declaration of Mr Hansen, is that prior to the date of the plaintiff's accident and at all times since the installation of the Lock Rail, the Lock Rail has not been the subject of any complaints or other incidents. In the circumstances, it is difficult to discern what prejudice would arise in the way contended by the defendants.
[61] Finally, it seems to me that the discretion to allow an amendment to plead a new cause of action which arises out of the same or substantially the same facts is a broad one, and in circumstances where I conclude that it so clearly arises out of the same facts, when weighing that against the unparticularised prejudice, I would in any event consider that the proposed amendment was one which ought to be allowed.
[66] It might well transpire that the defendants' position prevails, and the amendment has been a waste of time and resources. That will only become apparent after the trial. But in my view, notwithstanding that the plaintiffs' required leave to amend, the defendants had ample opportunity to consider whether they ought not to oppose such leave. They chose to so oppose, as was their right, but their position was not vindicated. In the circumstances, the costs ought to be reserved.