Downes v Affinity Health Pty Ltd [2013] QDC 51

A helpful review of the authorities and rules when seeking leave to amend pleadings after the request for the trial date.

Long SC DCJ

[29] Although not expressed in direct reference to the application of UCPR 380, the observations made in Hartnett v Hynes are equally apposite to the application of that rule and all the more so, because UCPR 380 is directed at situations that will occur after the filing of a Request for Trial Date.

[30]      It can be noted that those observations begin:

“Justice is the paramount consideration in determining an application to amend pleadings”.19

Both the decisions in State of Queensland v J L Holdings Pty Ltd20 and Aon Risk Services Australia Limited v Australian National University21 are cited as authority and the reasons in Hartnett v Hynes then proceeds to an examination of the effect of the Aon decision, in conjunction with recognising that the obligations imposed on litigants under UCPR 5, serve as qualifications of the rights of litigants to amend under the rules and in determining the justice of such applications, where objection is taken or leave is necessary.

[31]      The following summary of principles which were identified as assuming importance in the determination of that case, may also be usefully repeated here:

  1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
  2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.
  4. The Court should not be seen to accede to applications made without adequate explanation or justification.
  5. The existence of an explanation for the amendment is relevant to the Court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment.”
  6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
  7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
  8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
  9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
  10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
  11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  12. The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”22

[35]    However the provision of further and better particulars falls into a different category to the material facts necessarily to be contained in pleadings. As White J observed in Ballesteros v Chidlow & Anor No 2:27

“The function of pleadings  is  to  state with sufficient clarity the case that must be met, Gould v Mt Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517. The Rules of Court exist to bring that  about  and  r 166(4) in particular  has  been beneficial  in  achieving that  object.  Pleadings define the issues and make clear that which is in issue for proof at trial. Nonetheless, the overriding philosophy of the UCPR set out in r 5 must not be overlooked – “the rules are to be applied with the objective of avoiding … technicality and facilitating the purpose” of the rules. …”

[36] Although it is only because of the absence of specificity and pleading of material fact, accompanying the description of “the incident” in par 5(f) of the existing pleading, it is at least not clear that the facts upon which the InterSafe report was based, fall outside the parameters of that existing pleading. For the reasons that have already been given, that was a situation which the respondent allowed to continue until it proposed its amended defence at the end of November 2012. In this regard, it is also of some significance to note that on the hearing of this application, the respondent expressly conceded that there was no necessity to be concerned with UCPR 376(4) on the basis that it was not contended that the proposed amended statement of claim included any new cause of action. This is because the distinction recognised by Applegarth J in Hartnett v Hynes,28 after reference to the observations of McMurdo J in Borsato v Cambell & Ors,29 was:

“Amendments that amount to “the refashioning or redesignation or further particularisation of a claim on the basis of facts already pleaded” will not involve the inclusion of a new cause of action. The situation is otherwise where the “new case” made by an amendment is one “varying so substantially from what has previously been set up that it would involve investigation of matters of fact or questions of law, or both, different from what have already been raised and of which no fair warning has been given.”30

19             [2009] QSC 225 at [12]

20             (1997) 189 CLR 146 at 155

21              [2009] HCA 27 at [30], [98]

22              [2009] QSC 225, at [27]

26              See par [18] above

27              [2005] QSC 285 at [35]

28              [2009] QSC 225, at [24]

29            [2006] QSC 191, at [8]

30            Of Hartnett v Hynes [2010] QCA 65, at [34] –[35]

Brisbane Barrister – David Cormack

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