Murdoch v Lake[2014] QCA 216

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have had the advantage of reading the reasons for judgment prepared by Boddice J.  Similarly, I have the advantage of reading the draft reasons prepared by Peter Lyons J.

2. I am content to adopt what has been said in paragraphs [63] – [93] in the reasons of Boddice J, dealing with the nature of the case presented to the court.  The central issue agitated on appeal was whether a proposed new statement of claim pleaded new causes of action and, if so, whether those causes of action arose out of the same or substantially the same facts as had been previously pleaded.

3. On the question of whether the proposed pleading introduced new causes of action, I am in agreement with the reasons of Peter Lyons J.  I wish to add a few comments.

4. The existing pleading sought relief based upon misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) (TPA).  What was pleaded was that the respondent and others had made secret arrangements which involved the shares in, and future conduct by, a company in which the appellant was then interested, namely GBST Holdings Pty Ltd (GBST).  The facts not revealed, according to the pleading, were as follows:

1. that the respondent was the beneficial owner of certain shares in GBST, namely convertible preference shares, class B (CPSB);^[1]

2. that the respondent had made a loan to one Sundell, and used the loan to purchase or hold shares in GBST;^[2]

3. that another company (Crown) was the trustee of CPSB shares for the respondent;^[3]

4. that the other officers and directors of GBST (the respondent, Sundell and one Puttick) had made an arrangement whereby GBST would  pay a dividend to extinguish in whole or part shareholder loans, and pursue an initial public offering.^[4]

5. It was pleaded that these facts were kept from the appellant when he entered into a deed of settlement with all the other relevant parties and thereby compromised proceedings which he had brought concerning GBST, including for relief again oppression, construction of documents relating to dividends and bonuses, and for unfair dismissal. Thus, it was contended, the failure to disclose the relevant facts constituted misleading or deceptive conduct within the meaning of the TPA.  By that conduct, it was pleaded, the appellant had suffered loss because he entered into the settlement deed, whereas he would have pursued another course of action had he known the truth.

6. The elements of the cause of action were relevantly simple. First, a contravention of s 52 had to be established, by proving conduct that was misleading or deceptive, or likely to mislead or deceive.  As pleaded, that was the failure to reveal the truth to the appellant.  Secondly, it had to be established that loss had been suffered as a result of that conduct.  This was pleaded to be the entry into the settlement deed, and the losses that flowed from that.

7. At the heart of the alleged misleading or deceptive conduct, the pleaded case was that three essential facts were kept from the plaintiff. They were:

• that the respondent held CPSB shares, either legally or beneficially, and if the latter, that Crown was the trustee of those shares for the respondent;

• that the respondent had undisclosed shareholdings in GBST;

• and that there was an arrangement to cause GBST to issue dividends and pursue an IPO.

8. In the proposed pleading, the essential features of the case have remained the same. Relief is still sought under the TPA for a contravention of s 52, by reason of withholding relevant information from the appellant.  The pleading continues to assert that the facts withheld included:

1. that the respondent had made arrangements with Crown, by which he acquired a beneficial interest in CTSB shares;^[5]

2. that an agreement or arrangement was reached between the respondent, Sundell and Puttick, to the effect that GBST would pay dividends to extinguish a shareholder’s loan, and pursue an IPO.^[6]

9. One factor which seems to have been given less consideration than it should, is the fact that the appellant has been attempting to plead an arrangement of which he was not party, and about which he knew nothing. It is not surprising, therefore, that as further information or documents came to light the appellant might discover more information about the true nature of the agreement, its parties, and its terms.

10. True, it is, that the proposed pleading introduced CapX as a party to that agreement, and made amendments as to what the agreement entailed. Specifically that was that the dividends were to extinguish only Puttick’s shareholder loan, and not all shareholders’ loans; and further that the dividends would facilitate Crown buying the rest of the CPSB shares, and converting them. However, those matters do not change, in my view, the essential nature of the pleading.  In terms of pleading a cause of action, the contravention of s 52 of the TPA is the same, namely the failure to reveal the respondent’s interest in CPSB shares (and who held them for him) and the intended future conduct of GBST (as to issuing dividends and following an IPO).

11. I therefore agree with Peter Lyons J that the proposed pleading does not include a new cause of action.

12. In any event, were that conclusion to be wrong, I agree with what Boddice J has said in paragraphs [101] – [107] of his reasons, namely that if the proposed pleading raised a new cause of action, it arises out of the same loss or substantially the same facts as previously pleaded.

13. As to the disposition of the appeal, I agree with what Boddice J has said in paragraphs [108] – [109] of his reasons, but the difficulties identified may be overcome by the parties if they are able to reach agreement as proposed in the approach in paragraph [61] of the reasons of Peter Lyons J.  There is good reason to permit the parties the chance of avoiding the costs of another hearing.  I therefore agree with the approach and orders set out in paragraphs [59] – [62] of the reasons of Peter Lyons J.

14. PETER LYONS J:  I have had the advantage of reading in draft the reasons for judgment of Boddice J.  I agree with much that his Honour has written.  However, I have reached a different conclusion as to whether the reference to CapX in the proposed pleading has the consequence that a new material fact has been included in that pleading, resulting in the inclusion of one or more new causes of action; and consider it necessary to deal with some other matters.

15. The respondent having abandoned reliance on the third amended statement of claim,^[7] the application was to be determined by reference to the further amended statement of claim and the proposed pleading.^[8]

Rule 376 and a new cause of action based on misleading conduct

16. Rule 376 makes it necessary to enquire whether a proposed amendment, made after the expiry of the limitations period, results in the inclusion of a new cause of action. The submissions of the parties treated this as a matter of bare assertion, without identifying how an amendment might be tested, to see if it introduced a new cause of action, where there was some change to the way facts were alleged in a pleading.

17. A cause of action is the combination of facts which gives rise to a right to sue.^[9]  In Bruce v Odhams Press Ltd^[10] Scott LJ identified material facts as those necessary for the purpose of formulating a complete cause of action, the omission of one having the consequence that a statement of claim is bad.  However, his Lordship also noted that it is often difficult to distinguish between a material fact, and a particular piece of information which it is reasonable to give to the defendant, in order for the defendant to know the case to be met.^[11]  His Lordship also noted the common practice of including in a pleading, facts which are not material facts.^[12]  It follows from these observations that, if an amendment introduces a new material fact, then a new cause of action is introduced, even if the cause of action is of the same type or category as one pleaded before the amendment.  However, if the material facts remain the same, then no new cause of action is introduced.  That is consistent with the general approach taken by courts to the application of limitations statutes.  A new cause of action does not arise simply because some relevant fact occurred after the cause of action accrued.  A common example, in a case of negligence, is further loss occurring after some loss was first suffered.

18. For reasons which will become apparent, it is sufficient to focus on the claim for relief made under s 87 of the Trade Practices Act 1974 (Cth) (TPA).  One of the circumstances in which relief may be granted under s 87 is that a party has suffered loss or damage by conduct of another person that was engaged in, in contravention of a provision of Part V of the TPA.  It is apparent from the pleadings that the provision of Part V relied upon by the appellant is s 52, which proscribes misleading conduct (I shall use this expression to refer to conduct which is misleading or deceptive, or which is likely to mislead or deceive).  Thus, amongst the things which must be established by a person who is seeking relief under s 87 against another person are that the other person engaged in misleading conduct, and that, by that conduct, the first person suffered loss.  These are both material facts for a cause of action created by s 87 of the TPA.

19. In McKellar v Container Terminal Management Services Ltd^[13] Weinberg J said, “A cause of action for misleading and deceptive conduct is not established unless the statement of claim sets out the circumstances which gave the representation its deceptive and misleading character at the time it was made.”  That was a case where damages were claimed under s 82 of the TPA, but nevertheless it seems to me that it is relevant where compensation is claimed under s 87, on the basis of misleading conduct.  In a case where the conduct is said to be misleading by reason of a nondisclosure, I would adapt his Honour’s statement as requiring the statement of claim to set out the circumstances which gave the defendant’s conduct, including the non-disclosure, its deceptive and misleading character at the time the conduct occurred.

20. However, his Honour’s statement follows discussion of earlier authorities relating to the need to plead material facts; the insufficiency of pleading a conclusion based on unstated facts; and the inadequacy of a pleading which repeats the words of a statute and baldly asserts contravention of it. The last may be regarded as a case where material facts were not pleaded, because the conduct itself was not pleaded: it may in the present case be disregarded. In some cases, the relevant conclusion may itself be one of fact; and that conclusion may be a material fact for the cause of action. An example is, in an action based on fraudulent misrepresentation, the defendant’s knowledge that the representation was untrue. It seems to me that the defendant’s knowledge that the representation is untrue is the material fact; though if that is to be proven as a conclusion from other facts, those facts must be pleaded. It follows that a change in the facts pleaded as the basis for concluding that a material fact existed at the relevant time does not inevitably mean that a new material fact has been pleaded, and a new cause of action included. It seems to me therefore that some care must be taken when considering whether facts which give conduct its misleading character are themselves material facts which are essential to the cause of action. However, I consider that, where a pleading introduces new facts which substantially change the way in which conduct is misleading, then a new cause of action is introduced. It will therefore be necessary to focus on the effect which any change in the way the circumstances are pleaded, has on the allegation that the defendant’s conduct was misleading.

21. Relief can only be granted where a plaintiff has suffered loss or damage “by” the defendant’s misleading conduct. Accordingly this must be alleged in the statement of claim. It is convenient to deal with questions of loss and damage, and causation, later in these reasons.

22. Before considering whether a new cause of action would be included by the proposed pleading, some other submissions should be considered.

A different interest in CPSB?

23. It was submitted for the respondent,^[14] and found by the learned primary Judge,^[15] that the allegation in paragraph 3(e) of the further amended statement of claim that Crown was the trustee of CPSB on behalf of the respondent, could not refer to the allegation that the respondent acquired the beneficial interest in the CPSB alleged in paragraph 17 of the proposed pleading.  The submission and finding were supported by references to paragraphs 21.5(a), 21.5(b), 21.6, 21.7, 21.8, 21.10 and 21.12 of the proposed pleading.  The appellant submitted, with respect to paragraph 17 of the proposed pleading, that the only relevant new allegation was the reference to CapX.

24. In paragraph 2(g) of the further amended statement of claim it was alleged that, at all material times, the respondent was the beneficial owner of CPSB; and in paragraph 3(e) it was similarly alleged that Crown was the trustee of CPSB for and on behalf of the respondent. By reference to paragraphs 1(a) and 19 of the same pleading, it can be seen that the period leading up to 20 September 2004 was a material time.  Paragraph 2(h) alleged that the respondent had made a loan to Sundell Holdings and used that loan to purchase or hold undisclosed shareholdings in GBST.  In paragraph 19, amongst the things which it was alleged the respondent had failed to disclose, were the matters alleged in paragraphs 2(g), 2(h) and 3(e).  It seems to me that, whatever might be the precise effect of paragraph 2(h), the further amended statement of claim alleged that the respondent had a beneficial interest in CPSB, of which Crown was the legal owner, in the period leading up to, and including, 20 September 2004.

25. Paragraph 17 of the proposed pleading alleges that the respondent acquired a beneficial interest in the CPSB; and that he did so through advances or monetary contributions “to an arrangement with Crown”. These things are alleged to have occurred in 2001 and 2002. The particulars commence with an allegation that on about 10 July 2001, the respondent paid $1,000,000 to Sundell Holdings, said to be recorded in its financial statements as an interest bearing liability. There is then an allegation that on about 5 October 2002 the respondent paid $300,000 to Crown or alternatively to CapX. It is then alleged that there was an agreement that Crown would hold 20 per cent of the CPSB on trust for the respondent, resulting in Crown holding 20 per cent of those shares for him. It is implicit in the proposed pleading that the respondent held a beneficial interest in CPSB until at least December 2004.^[16]

26. Paragraphs 21.5(a) and (b) of the proposed pleading allege that on 13 December 2002, the respondent asked Sundell (for Crown) whether Crown would sell him CPSB; and Sundell refused to enter into an arrangement to do so. Paragraphs 21.6, 21.7 and 21.8 set out allegations relating to the fact that Crown only paid 20 per cent of the purchase price of the CPSB at the time of their issue.  Paragraph 21.10 alleges that the respondent was under a duty to disclose the payment of $300,000 to Crown.

27. What seems to have been overlooked by the respondent’s submission, and the learned primary Judge, was that the conduct pleaded in paragraph 21 including that pleaded in paragraph 21.5(a) and (b), is alleged in paragraph 21.12 to be intended to conceal the respondent’s interest in the CPSB. As I read the proposed pleading, it is intended to convey that the conduct alleged in paragraph 21.5(a) and (b) did not reflect the true position. That reading is also consistent with the allegations in paragraph 17.

28. The allegation in paragraph 21.6 did not appear in the further amended statement of claim, but it is consistent with the allegation in that pleading that in 2005 GBST called up amounts unpaid in respect of CPSB.^[17] The allegations in paragraphs 21.7 and 21.8 are similar in character to that in paragraph 21.6.  Paragraph 21.10 is irrelevant to the question whether a different trust relationship was involved.  In my view, these paragraphs do not provide an adequate basis for the respondent’s submission, nor for the finding of the learned primary Judge.

29. I therefore would not uphold the finding of the learned primary Judge that the respondent’s interest in CPSB alleged in the further amended statement of claim was different to that alleged in the proposed pleading.

Introduction of references to CapX

30. To determine the significance of the references to CapX, it seems to me to be necessary to pay some attention to the cause of action pleaded (or, perhaps, attempted to be pleaded)^[18] in each pleading.  The further amended statement of claim claims damages and/or compensation (in alternative amounts) under ss 82 and 87 of the TPA.  The proposed pleading claims (unspecified) compensation pursuant to s 87 of the TPA.  The omission of any reference to s 82 in the proposed pleading was not the subject of submission, and may be ignored.  The elements of a cause of action under which compensation might be awarded under s 87 include (to the extent relevant for this appeal) misleading conduct on the part of the defendant, resulting in loss or damage to the plaintiff.

31. There are a number of differences in the way in which the allegations relevant for present purposes were pleaded in the further amended statement of claim and the proposed pleading, that were not relied upon by the respondent in the present appeal. A difference which was relied upon, however, was the inclusion of references to CapX. It is therefore necessary to examine the circumstances in which it was introduced into the proposed pleading. Since there is a lack of clarity in both the further amended statement of claim and the proposed pleading, when discussing these pleadings, I have set out the manner in which I consider each should be read, rather than repeat the language which appears in them.

32. In the further amended statement of claim, it was alleged that the respondent had made a loan to Sundell Holdings, used to purchase undisclosed shareholdings in GBST, and he had become the beneficial owner of some of the CPSB, which were held in trust by Crown.^[19]  I shall refer to these as the shareholding allegations.

33. It was also alleged that there was an understanding reached prior to 20 September 2004 between the respondent on behalf of himself as an officer of GBST and as a shareholder of that company; Sundell on behalf of himself as a director of GBST and on behalf of Crown as a shareholder of that company; and Puttick on behalf of himself as a director of GBST, on behalf of himself as a shareholder of GBST, and on behalf of himself as a trustee of the Puttick Family Trust, which was also a shareholder of GBST.  The understanding was that they would cause GBST to pay a dividend to shareholders (to extinguish shareholder loans), and thereafter to pursue the IPO.^[20]  I shall refer to this understanding as the IPO understanding.

34. The failure by GBST and Crown to disclose the IPO understanding and the shareholding allegations was alleged to constitute misleading conduct, to which the respondent was a party, or in which he was knowingly concerned, within the meaning of those expressions in s 75B of the TPA.^[21]

35. In the proposed pleading, the relevant conduct is described as the issue of the CPSB to Crown and the entry into the Deed of Settlement, said to be misleading by reason of a number of matters identified in that pleading.^[22]  Those matters include that in 2001 and 2002, the respondent had paid money “to an arrangement with Crown” by which he acquired a beneficial interest in the CPSB “whether directly or through CapX”;^[23] and an arrangement was reached prior to 20 September 2004 between the respondent (on behalf of himself, GBST and CapX), Sundell (on behalf of GBST, Crown and CapX), and John Puttick (described as another director and shareholder of GBST) that GBST would pay dividends to extinguish Puttick’s shareholder loan, and to facilitate Crown’s purchase of the balance of the CPSB and their conversion into ordinary shares; and that GBST would pursue the IPO^[24].  Again the conduct is said to be that of GBST and Crown, in which the respondent was involved, under s 75B of the TPA.^[25]

36. In the proposed pleading it is alleged that the directors and shareholders of CapX were the respondent and Sundell.^[26]  However, the more significant allegations relating to CapX in the proposed pleading are found in the paragraphs referring to the acquisition by the respondent of a beneficial interest in the CPSB; and in the arrangement relating to the payment of dividends by GBST, and the pursuit of the IPO.

37. As a result of the introduction of CapX, it is alleged in the proposed pleading, as an alternative to the allegation that the respondent held a beneficial interest in CPSB directly from Crown, that CapX held the beneficial interest directly from Crown, and that the respondent held this interest “through CapX”. This amounts to an allegation that CapX held, on trust for the respondent, the beneficial interest in CPSB of which Crown was the trustee.^[27]  That a beneficial interest may be held on trust is well established.^[28]

38. The change to the allegations relating to the IPO understanding is, for present purposes, that the respondent and Sundell are alleged to have acted on behalf of CapX, as well as others, when reaching the agreement or arrangement.

39. So far as the shareholding allegation is concerned, it seems to me that what is relevant to the allegation that the respondent’s conduct was misleading was the fact that he had an undisclosed interest in CPSB.  The fact that he achieved this by means of a trust does not, it seems to me, have any bearing on the misleading nature of his conduct; but even if that view were wrong, I consider that the introduction of CapX as a sub-trustee has no effect on the allegation that his conduct was misleading.

40. The appellant’s case in relation to the IPO understanding is, essentially, that the IPO increased the value of the shares;^[29] and that, had he known of the IPO understanding, he would not have executed the Deed of Settlement.  Given the limited interest that CapX had in shares in GBST, and the absence of any suggestion that its involvement in the IPO understanding had any other relevance, it cannot be said that the allegation in the proposed pleading that CapX was a party to the IPO understanding had any effect on the allegation that the conduct relied upon by the appellant was misleading.  The appellant’s submission that the allegations relating to the IPO understanding were, effectively, the same in both pleadings, should be accepted.

41. Accordingly, I am of the view that the introduction of references to CapX in the proposed pleading does not result in the pleading of any new material fact, or the inclusion of any new cause of action.

Related submission: introduction of a new agreement

42. The respondent submitted that the allegation in the proposed pleading of a secret arrangement or agreement by which he would acquire an interest in the CPSB, found in paragraph 17, was not found in the further amended statement of claim. The learned primary Judge had found that the arrangement was “the foundation for a new misleading or deceptive conduct case, which does not arise out of substantially the same facts” as the cause of action pleaded in the further amended statement of claim.^[30]

43. However, paragraph 17 pleads the circumstances in which the respondent came to have an interest in the CPSB, which were issued to Crown. That, in substance, is the allegation made in paragraph 17; and is the conclusion to which the matters pleaded in the Particulars are directed.^[31]  Other paragraphs of the proposed pleading confirm that it was the respondent’s interest in the CPSB, non-disclosure of which rendered the relevant conduct misleading.^[32]  Paragraph 17 does not introduce a new material fact, by alleging an agreement by which the respondent came to hold CPSB.

Allegations of causation

44. It is convenient at this point to note one matter relevant to the pleading of causation. The respondent’s submissions relied upon findings of the learned primary Judge, said to be that there was no causative link alleged in the proposed pleading between the alleged misleading conduct, and the compensation claimed.^[33]  The learned primary Judge found that there were no facts pleaded in the proposed pleading in support of a causative link between the nondisclosure of the matters pleaded in paragraph 17, and the relief the appellant could have sought in the earlier proceeding had he been aware of those matters.^[34]  Her Honour also found that it was inexplicable how the agreement pleaded in paragraph 19 of the proposed pleading “could have affected (the appellant’s) decision to compromise the earlier proceeding by executing the deed of settlement”.^[35] 

45. Consistent with his notice of appeal,^[36] the appellant submitted that the submissions and findings overlook paragraph 22 of the proposed pleading.^[37]  That paragraph alleges that, had the appellant known of the respondent’s beneficial interest in the CPSB, and of the arrangement to use dividends to extinguish Mr Puttick’s loan and to pay the outstanding amount due from Crown in respect of the CPSB, and to pursue the IPO, then he would not have executed the Deed of Settlement, and would have continued with the earlier proceedings which led to the execution of that Deed.

46. It might be observed that damage for a cause of action under s 87 of the TPA may be constituted by the detriment suffered by being bound to a contract unconscionably induced;^[38] or the entry into legal relations from which a party would otherwise have abstained.^[39]  In some actions for damages where the suffering of damage is an element of the cause of action, it is possible that there will be separate incidents of damage, giving rise to separate causes of action.^[40]  This, however, is generally limited to actions in nuisance.^[41]  On the other hand, while substantial economic loss may be suffered at a later point in time than the initial damage, that is usually not decisive.  What is critical is when measurable damage first occurs.^[42]  Thus, in Wardley Australia Ltd v Western Australia,^[43] Brennan J said that where a misrepresentation induces a plaintiff to enter into a contract in which it suffers loss, the loss is suffered once the plaintiff becomes bound by the transaction; and what follows can be viewed as evidence proving the extent of the loss suffered.  This view was adopted by Handley JA in Scarcella v Lettice.^[44]  In determining whether a cause of action has accrued prior to the expiry of a period of limitation, the question is determined by reference to the substance of the matter, and not simply on the basis of allegations in a pleading.^[45]  Given that r 376 deals with the inclusion of a cause of action after the expiry of a period of limitation, it seems to me that the same approach is to be taken when determining whether an amendment includes a new cause of action.

47. On the appellant’s case pleaded in the proposed pleading, the cause of action under s 87 accrued on his execution of the Deed of Settlement,^[46] a matter clearly alleged in paragraph 22 to be a consequence of the fact he did not know the matters which, in paragraphs 17, 19 and 21, the respondent had a duty to, but did not, disclose to him.  Not only is this an agreement from entering into which he would otherwise have abstained, it is clear that he alleges that he suffered financial disadvantage as a result of entering into it.^[47]  In my view, the pleading adequately alleges that the appellant suffered loss or damage “by” the conduct of the respondent.  The proposed pleading thus properly pleads a cause of action.

48. The respondent’s submission fails to pay attention to the provisions of s 87 of the TPA.  It would appear that the provision on which the appellant’s claim is based is s 87(1A) of the TPA.  Relevantly, it permits an application by a person who has suffered loss or damage; and gives the Court power to make “such order or orders as the Court thinks appropriate … if the Court considers that the order or orders concerned will … compensate (the plaintiff) in whole or in part for the loss or damage or will prevent or reduce the loss or damage…”.  The section does not require a causal nexus between the misleading conduct and compensation.

49. The learned primary Judge did not explain the relevance of the finding that no facts are pleaded in the proposed pleading in support of a causative link between non-disclosure of the matters pleaded in paragraph 17, and relief which the appellant could have sought in the earlier proceedings, but for the non-disclosure. In my view, it is not relevant to the question whether the proposed pleading included the necessary elements for the cause of action on which the appellant would rely.

50. Nor did the learned primary Judge explain her finding about the absence of a relationship between what I have referred to as the IPO understanding, and the appellant’s decision to enter into the Deed of Settlement. It may be assumed that her Honour was referring to absence of knowledge by the appellant of the IPO understanding.^[48]  The proposed pleading clearly raised the prospect that the IPO would considerably enhance the value of the appellant’s shares,^[49] a prospect which in any event is not surprising.  Establishment of the link alleged in paragraph 22 of the proposed pleading would depend on the appellant’s evidence, but there was no basis for concluding that such evidence could not be accepted.  I would therefore not uphold her Honour’s finding.

51. Apparently in support of the submission that the learned primary Judge correctly held that the proposed pleading included new causes of action which did not arise out of substantially the same facts as those pleaded in the further amended statement of claim,^[50] it was submitted that the proposed pleading “encompassed … a substantially different factual basis for the allegation of causation and a substantially different factual basis for the allegation of an entitlement to compensation”.^[51]  The submission was supported by references to Borsato v Campbell;^[52] Wolfe v State of Queensland;^[53] Pianta v BHP Australia Coal Ltd;^[54] and Hughes.^[55]  It might be observed that the submission relating to the different factual basis for the allegation of causation seems to be at odds with the submission that the proposed pleading did not allege a causal nexus between the misleading conduct, and the compensation claimed.

52. The appellant submitted orally that the amount of compensation to be awarded was “a matter of evidence and a matter of assessment”.^[56]

53. Insofar as the respondent submits that the proposed pleading introduces a new cause of action because it includes a substantially different factual basis for the allegation of an entitlement to compensation (being matters relevant to the amount of compensation sought by the appellant), the submission does not reflect the language of s 87. The section gives a court the power to make a range of orders, including orders which will compensate the plaintiff “in whole or in part for the loss or damage”. It is therefore unlikely that allegations relied upon by a plaintiff in support of the amount of compensation it seeks, are allegations of material facts which are of the gist of its cause of action.

54. It is convenient to consider in greater detail the relevant allegations in both pleadings; to consider the submissions relating to the factual basis in support of the claim for compensation; and then to consider the submissions on the question of causation.

55. In the further amended statement of claim, the appellant alleged that, but for the misleading conduct, he would not have entered into the Deed of Settlement; would have retained his shares in GBST; would have sought cancellation of the CPSB in the earlier proceedings; would have received the dividend; and would have sold his shares consequent on the IPO.^[57]  The pleading then alleged matters generally relevant to the calculation of quantum, consequent on these allegations.^[58]  In the proposed pleading, the differences are that it is alleged that, in the earlier proceedings, the appellant would have pursued allegations of breaches of director’s duties and fiduciary duties; and would have attempted to have his shares bought by the other parties at a value reflective of the IPO.^[59]  It is subsequently expressly alleged that the appellant lost the opportunity to follow that course;^[60] and some other matters are raised as relief which might have been obtained at the trial in the earlier proceedings, including a declaration that the issue of the CPSB was void ab initio.

56. I have previously mentioned that entry into an agreement from which a party would otherwise have abstained is sufficient loss and damage to constitute a cause of action under s 87 of the TPA.  Both pleadings allege this form of loss and damage.  Other changes to the allegations of loss and damage are relevant to the Court’s decision as to what compensation, if any, is to be awarded.  It follows that the proposed pleading does not include a new cause of action by reason of any change to the allegations as to loss and damage.

57. In any event, both pleadings also allege injury to the appellant’s economic interests, based on the inadequacy of the payments made under the Deed of Settlement;^[61] though there are some differences in the alleged measures of that inadequacy.  If economic loss were an essential ingredient of the cause of action, it was, on the pleadings, suffered when the appellant entered into the Deed of Settlement.  In each pleading, relief is sought in respect of the same interest.^[62]  Changes to the way in which it is alleged that the payment made under the Deed of Settlement was inadequate do not affect the nature of the loss.  It follows that no new cause of action is included by these changes.^[63]

Conclusion

58. I have concluded that the learned primary Judge erred in finding that the proposed pleading included a new cause of action. Accordingly, I would allow the appeal.

59. I would set aside Orders 1, 2 and 3 made on 2 October 2013.

60. The appellant has not pressed paragraph 18 of the proposed pleadings. There are cross-references to it which should also be omitted from the pleading, for example, in paragraphs 20, 21, 22 and 24. There may be other allegations which relate solely to paragraph 18. We have not heard submissions about these matters. Likewise, the appellant sought amendments to the claim which have not been the subject of submissions before us.^[64]

61. If, within seven (7) days after publication of these reasons, the parties were able to agree about the amendments to the claim, and about a form of order which would give effect to these reasons, then I would make orders for the amendment of the claim and statement of claim accordingly. Otherwise, I would order that the appellant’s application be remitted to the Trial Division, to be determined in light of these reasons.

62. As Boddice J has noted, the parties indicated that they wished to make further submissions with respect to costs. If either party seeks an order for costs in its favour, whether of the proceedings at first instance or of the appeal, his written submissions should be filed within seven (7) days after publication of these reasons; and any submissions in reply within a further seven (7) days.

63. BODDICE J:  On 22 April 2013, the Appellant filed an application for leave to amend his claim and statement of claim in terms of a document headed “Fourth Amended Statement of Claim” (“the proposed pleading”).  In response, the Respondent filed an application to strike out parts of the third amended statement of claim, and for summary judgment or, alternatively, for dismissal for want of prosecution.

64. On 2 October 2013, the primary judge refused the Appellant’s application for leave to amend his claim and statement of claim, and granted the Respondent’s application for dismissal of the proceeding for want of prosecution. The Appellant appeals those orders. At issue is whether the proposed pleading pleaded new causes of action and, if so, whether those causes of action arose out of the same or substantially the same facts as the previously pleaded cause of action such that leave to amend could be given notwithstanding expiry of the limitation period. A further issue is whether the power to dismiss the proceeding for want of prosecution was enlivened and, in that event, properly exercised in the circumstances.

Background

65. The Appellant was formerly a director and shareholder of GBST Holdings Pty Ltd (“GBST”).  The Respondent was GBST’s chief executive officer.  In 2003, the Appellant brought proceedings in the Supreme Court claiming damages and other relief from the Respondent, GBST and other named defendants.  That relief was claimed on the grounds of oppression, unfair dismissal and associated behaviour.  Those proceedings were subsequently compromised by a deed of settlement, entered into on 20 September 2004.

66. The present proceedings were commenced by the Appellant on 17 September 2010. Those proceedings claimed damages for misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth).  They were not, however, served by the Appellant until 31 January 2012.  The Respondent filed a notice of intention to defend on 22 March 2012.  Thereafter, the Appellant filed an amended statement of claim on 26 April 2012, a further amended statement of claim on 30 April 2012, and a third amended statement of claim on 6 March 2013.

67. The third amended statement of claim was filed following orders being made on 9 October 2012, requiring the Appellant to provide further particulars of his allegations of misleading conduct, and striking out his pleaded loss and damage.  The Appellant was given leave to re-plead loss and damage.

68. Subsequent to the filing of the third amended statement of claim, the Appellant retained new legal representation. Those new legal representatives prepared and delivered the proposed pleading. It made wholesale changes to the previously delivered pleadings. So substantial were those changes, the proposed pleading provided that it replaced “in its entirety” the third amended statement of claim filed on 6 March 2013.

The proceeding

69. The Appellant alleged he compromised his earlier proceedings in circumstances where, unbeknown to him, the Respondent and other board members of GBST had reached a secret understanding that GBST would pursue an initial public offering (“IPO”). The failure to disclose this understanding, and other specified matters, was alleged by the Appellant to be misleading and deceptive conduct by GBST and one of its corporate shareholders, Crown Financial Pty Ltd (“Crown”). The Respondent was alleged to be knowingly concerned in this misleading and deceptive conduct.

70. The Appellant claimed damages for this misleading and deceptive conduct. The damage was said to arise because if the Appellant had been told of the understanding, and other specified matters, he would have refused to enter into the Deed of Settlement and remained a shareholder of GBST, thereby benefiting from the IPO.

71. The further amended statement of claim pleaded the understanding in these terms:

“9.Prior to 20 September 2004 the defendant as CEO and board member of GBST (not including the plaintiff) had an understanding to cause GBST to pay a dividend to shareholders and thereafter pursue an Initial Public Offering (the ‘understanding’).

Particulars

The understanding was oral and made between Sundell (on behalf of himself as a director of GBST and Crown as a shareholder of GBST), the defendant (on behalf of himself as an officer of GBST and as a shareholder of GBST) and Puttick (on behalf of himself as a director of GBST and as a shareholder and representative of the Puttick Family Trust also as shareholder of GBST) in face to face meetings, by telephone and written communications none of which were disclosed to the plaintiff.

10. The material terms of the understanding were, that:

1. GBST would pay a dividend to extinguish in whole or part shareholder loans.

2. GBST would pursue an Initial Public Offering.”

72. Those other specified matters had been pleaded in paragraphs 2 and 3 of the further amended statement of claim in the following terms:

“2.The defendant was at all material times:

…

7. the beneficial owner of Convertible Preference Shares Class B in GBST (‘CPSB’);

8. had made a loan to Sundell Holdings Pty Ltd and used such loan, whilst Chief Executive Officer of GBST, to purchase or hold undisclosed shareholdings in GBST.

…

3. Crown at all material times:

…

5. was the trustee of CPSB in GBST for and on behalf of the defendant;”

Proposed pleading

73. The proposed pleading pleaded the understanding (termed “an agreement or arrangement”) in the following terms:

“19.Prior to 20 September 2004 the defendant (on behalf of himself, GBST and CapX) and Sundell (on behalf of GBST, Crown and CapX) together with John Puttick (another director and shareholder of GBST) reached an agreement or arrangement to the effect that:

19.1GBST would pay dividends, such dividends being used:

1. to extinguish Puttick’s shareholder loan; and

2. to facilitate Crown to purchase the balance of the CPSB share issue and to convert the same into ordinary shares;

19.2GBST would pursue an Initial Public Offering and become listed on the Australian Stock Exchange.”

CapX was CapX Limited, a company controlled by the Respondent and Mr Sundell.  CapX had not been referred to in the statement of claim, amended statement of claim, further amended statement of claim or third amended statement of claim.

74. The acquisition of CPSB, the loan arrangement between the Respondent and Sundell, and the ownership of the CPSB shares by Crown, was pleaded in the following terms:

“17.The defendant had in 2001 and 2002 provided advances or otherwise had contributed monies to an arrangement with Crown, by which the defendant, was to acquire and did acquire a beneficial interest in the CPSB share issue, whether directly or through CapX.”

The particulars of that allegation included reference to a payment by the Respondent to Sundell, a payment by the Respondent to Crown, or alternatively to CapX, and an oral agreement by the Respondent with Crown, through Sundell, for Crown to hold 20 per cent of the CPSB shares on trust for the Respondent.  The particulars alleged an inference ought to be drawn that Crown held 20 per cent of its CPSB shares on trust for the Respondent or CapX, and that this had been agreed between the Respondent and Sundell.

Primary judge’s findings

75. The primary judge found the arrangement pleaded in paragraph 17 of the proposed pleading had not previously been pleaded, and was the foundation for a new misleading and deceptive conduct case which did not arise out of substantially the same facts as the cause of action for which relief was claimed in the further amended statement of claim. It was not in dispute the limitation period for any such new cause of action had expired by that time.

76. The primary judge further found that whilst the allegations in paragraph 19 of the proposed pleading bore some resemblance to what had previously been pleaded by way of the secret understanding, the alleged involvement of CapX was a new element which distinguished it from the previously pleaded very simple case. The Appellant now relied on both direct communications and inference, whereas the previously pleaded case disavowed any reliance on inference.

77. The primary judge found paragraph 19 constituted more than a particularisation of the secret understanding pleaded in the further amended statement of claim. It raised a different understanding, one involving CapX. That constituted a new cause of action which did not arise out of substantially the same facts as the understanding pleaded in the further amended statement of claim. Again, expiry of the limitation period for any such new cause of action was not in dispute.

78. In respect of the pleaded loss and damage, the primary judge found there were no facts pleaded in the proposed pleading in support of a causative link between the defendant’s non-disclosure of the matters alleged in paragraph 17, and the relief the Appellant could have sought in the earlier proceedings had he been aware of those matters. The primary judge noted the Appellant no longer relied on an allegation he would have participated in the IPO.

79. The primary judge also gave consideration to the contents of paragraph 18 of the proposed pleading. It pleaded reliance on conduct by the Respondent, as CEO of GBST, to create a cash deficiency. The Appellant conceded this to be a new cause of action but submitted at the hearing before the primary judge that it arose out of the same or substantially the same facts as previously pleaded. That allegation was not accepted by the primary judge. The Appellant does not challenge that finding on appeal, and does not press for retention of paragraph 18 of the proposed pleading.

80. The primary judge concluded that as paragraphs 17 and 19 gave rise to new causes of action pleaded outside of the limitation period, which did not arise out of substantially the same facts as the causes of action previously pleaded, leave to amend should be refused. As there was no suggestion those causes of action could be reformulated so that they could be re-pleaded in a way that would not be out of time, the primary judge also refused leave to re-plead.

81. The primary judge found that in delivering the proposed pleading, the Appellant had abandoned the previously pleaded causes of action. The refusal of leave to file and serve the proposed pleading therefore left the Appellant in a position similar to not having filed a statement of claim in support of the claim. As the Appellant had now had several attempts at pleading his claim, it should be taken the proposed pleading represented the best case the Appellant was able to propound. The primary judge ordered the claim be dismissed for want of prosecution on the ground the plaintiff was unable to plead a cause of action which was not statute barred.

Appellant’s submissions

82. The Appellant submits the primary judge erred in finding that paragraphs 17 and 19 pleaded new causes of action, and in further finding those new causes of action did not arise out of substantially the same facts as the previously pleaded causes of action. The Appellant submits the primary judge also erred in finding the use of a clean pleading constituted an abandonment of his previously pleaded case.

83. In support of these contentions, the Appellant submits the introduction of CapX, although “a new element”, merely amounted to an additional factual matter to be relied upon as the basis for an inference of the existence of the agreement or arrangement which remained the same, namely to pay a dividend to extinguish shareholder loans and to pursue an IPO. In the alternative, the Appellant submits that if CapX was properly to be viewed as giving rise to a new arrangement, the primary judge should have simply disallowed the references to CapX.

84. The Appellant submits the primary judge erred in finding the proposed pleading had abandoned the allegations in the further amended statement of claim. The references to CapX were merely further particulars of its existing case. Even if it gave rise to a new cause of action, that alternate cause of action arose out of the same or substantially the same facts.

85. In respect of loss and damage, the Appellant submits the revised pleading in respect of loss and damage occurred in circumstances where the Appellant had been ordered to re-plead the claimed loss and damage. The proposed pleading was consistent with that earlier order.

86. Finally, the Appellant submits the primary judge erred in finding that as the Appellant had effectively abandoned the previously pleaded causes of action and was not able to advance new causes of action which were within time, the discretion to dismiss the proceeding for want of prosecution was enlivened and properly to be exercised.

Respondent’s submissions

87. The Respondent submits the primary judge correctly determined that the proposed pleading pleaded new causes of action which did not arise out of substantially the same facts. The further amended statement of claim pleaded a specific single oral understanding. It contained no reference to CapX. The proposed pleading sought to replace that single oral understanding with three separate arrangements, two of which involved CapX. The third arrangement was to be proved by inference.

88. Further, the proposed pleading abandoned reliance upon an allegation the Appellant had lost the opportunity to participate in the IPO, pleading instead a loss based on the Appellant’s inability to prosecute an amended claim alleging breach of fiduciary and director duties, and recovery on the basis of the proper value of a buy-out of his shareholding in GBST. This new pleading gave rise to a substantial factual enquiry which was new and did not arise out of substantially the same facts.

89. The Respondent submits the Appellant has not identified any error by the primary judge, in accordance with the principles in House v The King,^[65] in exercising the discretion to refuse leave to amend.  The decision to dismiss for want of prosecution was a decision properly made within the exercise of the primary judge’s discretion in the particular circumstances of the case.

Rule 376

90. Relevantly, r 376 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides:

“376 Amendment after limitation period

(1)This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

…

(4)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.”

91. The effect of r 376(4) was considered by Philip McMurdo J in Borsato v Campbell and Ors:^[66]

“8.The term ‘cause of action’ was defined in Cooke v Gill (1873) LR 8 CP 107 at 116 as being ‘every fact which is material to be proved to entitle the plaintiff to succeed’, a definition which many judgments have employed in the context of this rule or its equivalent:  see eg Allonnor Pty Ltd v Doran [1998] QCA 372 at [3] per McPherson JA.  But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4).  So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland [2001] QCA 336 at [19] subsequently endorsed as a ‘fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended’.  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.  Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Sawmilling No 1 Pty Ltd & Ors v State of Queensland [2003] QCA 311.”

92. In considering whether the requirements of r 376(4) are met, the relevant inquiry is focused on whether the new cause of action was reasonably apparent from the party’s previous pleadings, rather than upon an analysis of whether all of the material facts which must be established by the plaintiff to succeed in the new cause of action have already been pleaded.^[67]

93. However, a plaintiff cannot rely upon broad allegations in an initial statement of claim, which might have comprehended a great variety of facts, to satisfy this requirement. The insertion in a pleading of a vague allegation raising no identifiable cause of action does not satisfy the conditions in r 376(4)(b) that the proposed new cause of action arises out of the same or substantially the same facts as any cause of action for which relief had already been claimed.^[68]

Discussion

A new cause of action?

94. Prior to the delivery of the proposed pleading, the Appellant’s pleaded case was a claim for damages for misleading and deceptive conduct, with the misleading and deceptive conduct said to be the failure to disclose the existence of a secret understanding and the acquisition by the Respondent of certain shares in GBST, which were held on trust for the Respondent.

95. The secret understanding was pleaded as having been entered into orally between the Respondent, Mr Sundell and Mr Puttick, the latter being directors of GBST. The understanding was pleaded to be that they would cause GBST to pay a dividend to shareholders, and thereafter pursue an IPO. The dividends were to be used to extinguish, in whole or part, shareholder loans. The understanding was said to have been entered into by the defendant on his own behalf, and as a shareholder of GBST, by Mr Sundell on his own behalf and on behalf of Crown as a shareholder of GBST, and by Mr Puttick on his own behalf, and as a shareholder and representative of the Puttick Family Trust as shareholder of GBST.

96. In respect of the acquisition of shares, the previous pleading alleged the Respondent was the owner of ordinary shares and convertible preference shares class A in GBST, and the beneficial owner of CPSB shares in GBST. The Respondent was alleged to have made a loan to Sundell, and used such loan to purchase or hold his undisclosed shareholdings in GBST.

97. The proposed pleading pleaded the understanding (now termed “agreement or arrangement”) as having been entered into prior to 20 September 2004 by the Respondent, Mr Sundell and Mr Puttick. The effect of the understanding was that GBST would pay dividends which would be used to extinguish Mr Puttick’s shareholder loan, and to facilitate Crown purchasing the balance of the CPSB share issue and convert the same into ordinary shares with GBST to then pursue the IPO. The agreement or arrangement was said to have been entered into by the Respondent on behalf of himself, GBST and CapX, by Mr Sundell on behalf of GBST, Crown and CapX and by Mr Puttick as a shareholder of GBST.

98. Whilst the terms of the arrangement pleaded in the proposed pleading bore similarities to the terms of the understanding pleaded in the previous pleading, the inclusion of CapX in the arrangement was an entirely new material fact.  It was essential to the plea.  It was an additional fact which was not simply a further particular of a previously pleaded cause of action.  The primary judge correctly concluded the pleading in paragraph 19 of the proposed pleading constituted a new cause of action.

99. The acquisition of shares was also pleaded in a distinctly different manner in the proposed pleading. Whereas the previous pleading made reference to beneficial ownership of the CPSB shares by the Appellant, paragraph 17 of the proposed pleading specifically pleaded that in 2001 and 2002 the Respondent had provided advances or otherwise contributed monies to an arrangement with Crown, by which the Respondent was to acquire or did acquire a beneficial interest in the CPSB share issue, whether directly or through CapX.

100. The particulars of that paragraph rely on facts not previously alleged, including recordings in the financial and other accounts of CapX, and rely upon an inference to be drawn from those facts as to ownership of the CPSB shares, held in the name of Crown. The introduction of CapX was a material fact not previously pleaded or relied upon by the Appellant. It was not new further particularisation. The primary judge correctly concluded paragraph 17 constituted a new cause of action.

Out of the same or substantially the same facts?

101. Although the primary judge concluded that neither of the new causes of action in paragraphs 17 and 19 arose out of the same or substantially the same facts, little consideration was given to what those facts were in the context of the test for whether a new cause of action arose out of the same or substantially the same facts.

102. The factual matrix relied upon in the original pleading was the non-disclosure of two matters prior to entry into the Deed of Compromise. First, that the Respondent, Mr Sundell and Mr Puttick had reached a secret understanding for GBST to pay dividends so as to allow the extinguishment of shareholder loans, and for GBST to participate in an IPO. Second, that CPSB shares, held in the name of Crown, were in fact beneficially owned by the Respondent.

103. The factual matrix in support of the new causes of action also relies upon the non-disclosure of those matters. The difference between the two is that the proposed pleading asserts that these arrangements were undertaken by the Respondent, Mr Sundell and Mr Puttick, not only on their own behalf and the other entities, but on behalf of  a new entity, CapX.  The acquisition of shares by the Respondent also pleads the involvement of CapX, either directly or indirectly.  The introduction of CapX is a new material fact, which must be proven.

104. However, the fact that a new material fact is alleged does not mean the new causes of action do not arise out of substantially the same facts. The understanding is still said to have been reached by the same three individuals, the Respondent, Sundell and Puttick, albeit now on their own behalf and on behalf of other entities. The involvement of CapX in the understanding is pleaded to have occurred by the conduct of the Respondent and Sundell acting on its behalf. Similarly, the acquisition by CapX was through advances by the Respondent. Advances by the Respondent had been relied upon in the previous pleading.

105. Whilst the new causes of action do not arise out of the same facts previously pleaded, the new causes of action do arise out of substantially the same facts as the previously pleaded cause of action. The addition of the new material facts in relation to CapX does not involve such a material change to the factual matrix at the heart of the previous pleading as to take the proposed new causes of action out of the purview of r 376(4). The primary judge erred in concluding to the contrary.

106. The primary judge’s finding that the new causes of action did not arise out of substantially the same facts formed the basis for the primary judge’s refusal of leave to amend the pleading. The error in that finding infected the decision to refuse leave. The decision to refuse leave must be set aside.

107. The primary judge’s finding that the new causes of action did not arise out of substantially the same facts also formed the basis for the primary judge’s conclusion that the Appellant was unable to formulate any claim which would be within the limitation period. That conclusion was the foundation for the primary judge exercising the discretion to dismiss the Appellant’s claim for want of prosecution. That decision must also be set aside.

Should leave to amend be given?

108. The difficulty in exercising afresh the discretion in respect of leave to amend is that the Appellant does not now seek to advance in its entirety the proposed pleading. The Appellant accepts the primary judge’s finding in respect of paragraph 18 of that pleading. Further, whether the primary judge erred in finding there was no causal connection between the loss and the claimed arrangement can only be determined having regard to the terms of that pleading.

109. It is wholly unsatisfactory for this Court to be asked to exercise afresh a discretion to grant leave to amend pursuant to r 376(4) of the UCPR in respect of causes of action admitted to be pleaded outside the limitation period when that grant of leave is in respect of a pleading which is different to that propounded below.  The interests of justice require that the question of any leave to amend be properly considered on what is contended to be the Appellant’s proposed new pleading.

110. That course is best achieved by allowing the appeal, setting aside the orders below and remitting the hearing of the Appellant’s application for leave to amend, and the Respondent’s applications to strike out, for summary judgment and dismissal for want of prosecution, afresh.

Orders

111. I would order:

1.The appeal be allowed.

2.The orders below be set aside.

3.The Appellant’s application for leave to amend, and the Respondent’s applications to strike out, for summary judgment and for dismissal for want of prosecution, be remitted to the trial division for further hearing.

112. At the hearing of the appeal, the parties indicated an intention to make further submissions in respect of costs. I would further order the parties file and serve any written submissions in respect of costs within seven days.