UCPR: adding a new cause of action out of time

Bluefin Seafoods Pty Ltd v Fraser Coast Regional Council [2018] QSC 14

Bowskill J

The application concerned whether the plaintiff had pleaded new causes of action in its fourth amended statement of claim for damages against the defendant for misleading and deceptive conduct, negligence and breach of contract.

Relevantly, the plaintiff entered into an agreement in consideration of the defendant providing the necessary infrastructure, the plaintiff would develop an aquaculture facility.

The issues to be determined for Bowskill J were:

  • Whether a pleading in the plaintiff’s further amended statement of claim is a new cause of action;
  • If so, whether they are statute barred; and
  • Whether the new causes of action can be permitted to be added to the proceedings outside the limitation period

New causes of action

As to whether there was a new cause of action in the plaintiff’s pleading, Bowskill J referred to Borsato v Campbell [2006] QSC 191 where McMurdo J (as his Honour then was) stated:

[8] …  The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described. …

Bowskill J noted that McMurdo J’s approach in Borsato had been adopted in a number of subsequent decisions, for example, Wolfe v State of Queensland [2008] QCA 113[2009] 1 Qd R 97, Jetcrete Oz Pty Ltd v Conway [2015] QCA 272 and discussed in McQueen v Mount Isa Mines Ltd [2017] QCA 259 at [44]– [55]. Her Honour continued, finding that the plaintiff’s amended statement of claim pleaded new causes of action that:

[33] … were not causes of action sought to be raised by Bluefin prior to the amendment. That is plainly the case in relation to the cause of action for breach of the allegedly varied Development Agreement, because no such variation had previously been pleaded. It is also the case in relation to the Third Representation because, although there had been earlier references to a representation being made on 25 February and/or 1 March 2010 in the pleadings:

(a) prior to the (third) amended statement of claim filed on 11 September 2017, this was simply part of a broader narrative …

(b) in the (third) amended statement of claim filed on 11 September 2017, a statement made on 1 March 2010 (that Council will proceed with stage 1 of the development as previously discussed) is pleaded and defined as the Third Representation, but there is still no pleading of anything done in reliance on it …

(c) the first time it was alleged Bluefin relied upon the Third Representation in deciding not to bring proceedings in relation to the “initial breaches” was in the (fourth) amended statement of claim filed on 1 December 2017. This is a new case. It is not a particularisation of the cause of action (arguably) previously pleaded; it is a new cause of action.

Her Honour held that:

[34] The mere presence in the earlier versions of the statement of claim of a reference to a person on behalf of the Council saying, on 25 February or 1 March 2010, that Council will proceed with stage 1 of the development as previously discussed, does not enable the conclusion to be reached that the cause of action arising from the Third Representation, as eventually pleaded on 1 December 2017, is not a new cause of action. …

Leave to include a new cause of action?

Finding that the limitation period had expired in relation to the new cause of action, her Honour considered whether rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) applied:

The court may give leave to make an amendment to include a new cause of action only if—

(a) the court considers it appropriate; and

(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.

Her Honour was not satisfied that the new cause of action arose from the same or substantially same facts. Her Honour referred to Keane JA in Zonebar Pty Ltd v Global Management Corporation Pty Ltd [2009] QCA 121 where his Honour (as he then was) stated:

[23] … [t]he substance of the new cause of action is different in terms of the acts or omissions which give rise to it, and the adverse consequences for which damages are claimed.[6]

Consequently, her Honour struck out the entirety of the amended statement of claim, with judgment for the defendant under r 293 UCPR.

David Cormack – Brisbane Barrister & Mediator

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