Stimpson v O'Toole[2022] QCA 194

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Ms Stimpson’s de facto partner, Mr Cullen, was struck by a motor vehicle as he was crossing the road on 8 October 2016 (the date of the accident).  He died the following day.  The first respondent was the driver of the motor vehicle and the second respondent is the CTP insurer of the motor vehicle.  Ms Stimpson claims to have suffered psychiatric injury as a consequence of directly perceiving the aftermath and/or hearing about the accident in circumstances where there was a close tie of love and affection between her and Mr Cullen.
2. [2]
   Ms Stimpson gave a notice of accident claim form (non-fatal injury) to the second respondent on 6 September 2019.  As the claim form was not given within the time specified by s 37(2)(b) of the Motor Accident Insurance Act 1994 (Qld) (the Act), the claim set out Ms Stimpson’s excuse for delay as:

“The Claimant did not instruct Shine Lawyers to act on her behalf until 4 September 2019. Prior to this time, the Claimant was in no emotional state to engage lawyers due to the significant nature of her psychological symptoms. The Claimant had also hoped that her symptoms would resolve with time but has come to the realisation that her symptoms are permanent and ongoing.”

3. [3]
   By consent, an order was made by Judge Kent QC on 24 September 2019 giving leave to Ms Stimpson pursuant to s 57(2)(b) of the Act to commence proceedings within 60 days of the occurrence of one of the events specified in the order.  It was common ground on the hearing of the application in this Court that the applicable version of the Act at the date of accident was that which was current as at 15 August 2016.
4. [4]
   Liability for the accident was admitted in full by the second respondent on 22 October 2019.
5. [5]
   Ms Stimpson gave the second respondent a notice of accident claim form (fatal injury) on 15 July 2020 by email, in order to pursue a dependency claim.  Ms Stimpson’s explanation for the delay in lodging this claim form was set out in the claim form and repeated the reason for the delay in lodging the non-fatal injury form and also explained that it was not until Ms Stimpson and her solicitor were conferring on 7 July 2020 with a barrister for the purpose of the compulsory conference in respect of the non-fatal injury claim that the barrister indicated there was also likely to be a claim for loss of dependency arising from Ms Stimpson’s de facto relationship with Mr Cullen.  On 29 July 2020, the second respondent advised Ms Stimpson’s solicitors that it did not consider the fatal injury notice complied with s 37 of the Act, as the notice was lodged three years and nine months after the accident and was outside the limitation period of three years for a dependency claim.
6. [6]
   Ms Stimpson’s claim for damages for personal injuries against the respondents based on the non-fatal injury claim and the statement of claim were filed in the District Court on 10 May 2021 (the proceeding) within the time period for bringing the proceeding specified in the order made on 24 September 2019.  The second respondent’s defence was filed on 17 June 2021 in which the quantum of her damages is disputed, putting in issue the nature and extent of her injuries, her past and future expenditure in respect of medical treatment and medication, her claim for past economic loss and loss of earning capacity and her claim for commercial and/or gratuitous care in the future.
7. [7]
   Ms Stimpson’s solicitors were unable to convince the second respondent that the order made on 24 September 2019 protected the limitation period for all claims made by Ms Stimpson arising from the accident, including the fatal injury claim.
8. [8]
   Ms Stimpson therefore by application filed in the proceeding on 17 September 2021 sought various orders, including a declaration that the order made on 24 September 2019 applied to her fatal injury claim and allowed her to commence a dependency claim in accordance with that order or, in the alternative, for leave to amend the order made on 24 September 2019 pursuant to r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or s 16 of the Civil Proceedings Act 2011 (Qld) (CPA) or to amend the claim in the proceeding to include the dependency claim as a new cause of action on the basis that it arose out of the same facts, or substantially the same facts, as the claim for damages for personal injuries already made in the proceeding.
9. [9]
   The application was supported by two affidavits sworn by Ms Stimpson’s solicitor.  No affidavit was obtained from Ms Stimpson for the purpose of the application.
10. [10]
    On 29 October 2021, the learned primary judge heard the application.  It was conceded on behalf of Ms Stimpson at the hearing of the application that at no time prior to Ms Stimpson’s solicitors conferring with counsel on 7 July 2020 did the solicitors investigate a dependency claim with Ms Stimpson.  The primary judge gave ex tempore reasons for dismissing Ms Stimpson’s application and ordering that her solicitors pay the second respondent’s costs.
11. [11]
    Ms Stimpson applies for leave to appeal against that judgment, including the order for costs.  The second respondent does not oppose the grant of leave, but opposes the appeal.

The reasons

12. [12]
    At the outset of the reasons, the primary judge noted that Ms Stimpson was seeking orders concerning the effect of the order made by the court on 24 September 2019 or, alternatively, that she have leave to amend that order or the claim in the proceeding pursuant to r 376(4) of the UCPR and pursuant to s 16 of the CPA on the basis the fatal injury claim arose out of the same facts, or substantially the same facts, as the cause of action for which the relief had already been claimed in the proceeding.  The primary judge rejected the attempt to rely on those provisions to amend the order made on 24 September 2019.  There is no challenge to that aspect of the decision.
13. [13]
    The primary judge noted that s 57(1) of the Act which had the effect of extending the limitation period for bringing a proceeding based on a claim made under division 3 applies to a proceeding that is based on the claim made and those words “based on the claim” do not mean any claim arising out of the same accident, unless the Act has otherwise been complied with in respect of that other claim.  The primary judge noted that, as the notice in respect of the fatal injury claim was not given within the limitation period, as required under s 57(1) of the Act, the jurisdiction to make an order under s 57(2)(b) of the Act did not arise.
14. [14]
    In respect of the alternative relief based on r 376(4) of the UCPR, the primary judge noted that the precondition in r 376(1) required that, when the proceeding was commenced on 10 May 2021, the limitation period in respect of the proposed new cause of action had not then expired.  The primary judge found that the limitation period for the dependency claim had expired on 8 October 2019 and that the precondition to the operation of r 376 could not be satisfied.
15. [15]
    The primary judge dealt with the question of whether Ms Stimpson had given a reasonable explanation for delay in case the primary judge’s view on jurisdiction under s 57(1) of the Act was in error.  The primary judge accepted the submissions made on behalf of the second respondent that it could be inferred that Ms Stimpson’s solicitors had failed to identify the existence of the dependency claim and that was the explanation for Ms Stimpson’s delay in pursuing the dependency claim.  The primary judge accepted that a dependency claim may be regarded as arising out of substantially the same facts as a psychiatric claim arising out of the same death, but the problem for Ms Stimpson was r 376(1) of the UCPR which could not be satisfied as the proceeding was commenced on 10 May 2021 after the limitation period for the dependency claim had expired on 8 October 2019.
16. [16]
    The primary judge did not give any separate consideration in the reasons to the application to amend the claim in the proceeding based on s 16 of the CPA by any express reference to the jurisdiction conferred by s 16.  After discussing the explanation for delay that could be attributed to Ms Stimpson, the primary judge stated the issues in the following terms which did not suggest any application of s 16 of the CPA:

“It seems to me, though, having mentioned each of those matters, that the real question is simply whether the new claim sought to be added by the applicant is statute barred or whether there is something arising out of a previous order in this Court or the Motor Accident Insurance Act, which means that this statute-barred additional cause of action may be pursued.”

Grounds of appeal

17. [17]
    The grounds of appeal are based on errors of law which Ms Stimpson submits were made by the primary judge.  They can be summarised as:

    1. (a)
       the treatment by the primary judge of the reference to “a relevant period of limitation” in r 376(1) of the UCPR as a reference to the limitation period of three years for the dependency claim rather than the altered period of limitation as a result of the order made on 24 September 2019; and
    2. (b)
       the failure of the primary judge to consider the application pursuant to s 16 of the CPA and give reasons why leave should not be given pursuant to that provision to amend the claim in the proceeding to include the dependency claim.

The “relevant period of limitation” under r 376(1)

18. [18]
    There are two issues raised by the first ground of appeal.  The first is the effect of s 57(2) of the Act on the period of limitation that would otherwise apply to a dependency claim brought by Ms Stimpson in the context of the order made on 24 September 2019.  The second issue is the construction of “relevant period of limitation” in r 376(1) of the UCPR.
19. [19]
    Section 37(1) of the Act required the claimant to give written notice of the motor vehicle accident claim to the insurer before bringing the proceeding in a court for damages for personal injury arising out of the accident.  Under paragraph (a) of s 37(1), the notice of claim must contain a statement of information required under a regulation.  The information required in a claim form for a non-fatal injury differs from the information required in a claim form for a fatal injury.
20. [20]
    Subsections (1) and (2) of s 57 of the Act as at the date of the accident provided:

3. “(1)
   If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

3. (2)
   However, the proceeding may only be brought after the end of the period of limitation if it is brought within—

1. (a)
   6 months after the notice is given or leave to bring the proceeding is granted; or

2. (b)
   a longer period allowed by the court.”

21. [21]
    The definition of “motor vehicle accident claim” was set out in s 4 of the Act:

“motor vehicle accident claim means a claim for damages based on a liability for personal injury arising out of a motor vehicle accident and, for a fatal injury, includes a claim on behalf of the deceased’s dependants or estate.”

22. [22]
    The definition of “personal injury” was also found within s 4 of the Act:

“personal injury includes—

1. (a)
   fatal injury; and

2. (b)
   prenatal injury; and

3. (c)
   damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices.”

23. [23]
    Rule 376 of the UCPR provides:

3. “(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.

3. (2)
   The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if—

1. (a)
   the court considers it appropriate; and

2. (b)
   the court is satisfied that the mistake sought to be corrected—

1. (i)
   was a genuine mistake; and

2. (ii)
   was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

3. (3)
   The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if—

1. (a)
   the court considers it appropriate; and

2. (b)
   the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.

3. (4)
   The court may give leave to make an amendment to include a new cause of action only if—

1. (a)
   the court considers it appropriate; and

2. (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.”

24. [24]
    Ms Stimpson relied on Smithwick v State of Queensland [2001] QSC 175 before the primary judge who accepted that was authority that the claims pursued by Ms Stimpson of damages for personal injuries for nervous shock and a dependency claim could arise out of substantially the same facts.  The authority of Smithwick for that proposition was common ground on the hearing of the application in this Court.
25. [25]
    Ms Stimpson accepts that in order to prosecute her dependency claim under the Act, it was necessary for her to give the claim notice in respect of the fatal injury.  (That accords with the requirements of s 37(1) of the Act.)  Ms Stimpson argues that did not preclude her from taking advantage of the existence of the proceeding (that was commenced on the basis of the notice of claim for her non‑fatal injury) in pursuing the dependency claim as a cause of action added to the proceeding.  Ms Stimpson argues that as the definition of “personal injury” includes a fatal injury, it follows that the definition of motor vehicle accident claim means a claim for damages that can extend the one claim to cover both a claim for damages for personal injury and a dependency claim arising out of the same accident.
26. [26]
    The timing for bringing a proceeding for damages for personal injury arising out of a motor vehicle accident is regulated by the provisions of the Act (such as s 51A and s 51D of the Act) and is related to the notice of claim given under division 3 of part 4 of the Act.  Section 57 of the Act extends the time period in which a proceeding may be brought based on a claim given under division 3 (or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under s 39(5)(c)(ii) in division 3) in the circumstances that are otherwise specified in subsections (1) and (2) of s 57.
27. [27]
    Even though the only claim that had been made by Ms Stimpson was in respect of the non-fatal injury at the time the order was made on 24 September 2019, Ms Stimpson submits that the order made on 24 September 2019 extends to both claims made by Ms Stimpson in respect of the accident, as the definition of motor vehicle accident claim extends to the fatal injury claim in addition to the claim for damages for nervous shock.
28. [28]
    That argument based on the definition of motor vehicle accident claim must be rejected as it is inconsistent with the scheme of the Act and the requirement of s 37(1) of the Act that a notice of claim must be given before bringing a proceeding based on the claim.  The order made on 24 September 2019 related only to the proceeding based on the non-fatal injury notice of claim which was the only claim that had been given by Ms Stimpson at the date of the order.  The power conferred on the Court under s 57 of the Act was to extend the time for Ms Stimpson to bring a proceeding based on the claim that had been given at that stage when the matter was taken before the District Court on 24 September 2019.
29. [29]
    It is conceded on behalf of Ms Stimpson that she can only rely on r 376 if, in terms of r 376(1), the limitation period for the dependency claim was current as at the date of commencement of the proceeding on 10 May 2021.
30. [30]
    Smithwick does not assist in the construction question of r 376(1), as the relevant period of limitation that applied to the claim for damages for nervous shock in Smithwick was current at the date the proceeding for the dependency claim was started.  In Smithwick, the plaintiff had brought her dependency claim arising from the death of her husband within the limitation period of three years of his death.  She applied to amend her claim to pursue her claim for damages for nervous shock.  The amendment was allowed, as it was held that the cause of action for damages for personal injuries for nervous shock arose out of the same facts as the dependency claim that had been claimed in the proceeding commenced within the limitation period.
31. [31]
    The effect of the order made on 24 September 2019 was to allow the proceeding to be brought after the end of the period of limitation that applied to the claim for damages for personal injury based on the non-fatal injury notice of claim.  The effect of s 57(2) is not to extend otherwise the period of limitation for any other claim sought to be made by the claimant arising out of the same accident.
32. [32]
    The primary judge was therefore correct in approaching the reference to “relevant period of limitation” in r 376(1) of the UCPR on the basis that it referred, in the circumstances of this matter, to the limitation period of three years for the dependency claim that had expired on 8 October 2019.
33. [33]
    The applicant does not succeed on the first ground of appeal.

Can the applicant succeed under s 16 of the CPA?

34. [34]
    Although the primary judge acknowledged in the reasons that Ms Stimpson also relied on s 16 of the CPA, it was an error that his Honour did not expressly deal with that aspect of her application to amend the claim to include the dependency claim.  It is therefore necessary to consider whether Ms Stimpson can succeed on her application under s 16 of the CPA.
35. [35]
    Section 16 of the CPA provides:

3. “(1)
   This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

3. (2)
   The court may order an amendment to be made, or grant leave to a party to make an amendment, even though—

1. (a)
   the amendment will include or substitute a cause of action or add a new party; or

2. (b)
   the cause of action included or substituted arose after the proceeding was started; or

3. (c)
   a relevant period of limitation, current when the proceeding was started, has ended.

3. (3)
   Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.

3. (4)
   This section—

1. (a)
   applies despite the Limitation of Actions Act 1974; and

2. (b)
   does not limit section 103H.”

36. [36]
    The forerunner of s 16 of the CPA was s 81 of the Supreme Court of Queensland Act 1991 (Qld) (SCQA) that was considered in Draney v Barry [2002] 1 Qd R 145.  That decision was concerned with the relationship between r 376 of the UCPR and s 81 of the SCQA.  It was held by McMurdo P and Pincus JA (at [2] and [23]) that where applications do not pass the test set out in r 376(4)(b) to add a new cause of action, the court has a general discretion under s 81 of the SCQA to add a cause of action out of time, but that in exercising that discretion the court should have regard to the fact that the effect of adding a new cause of action out of time is equivalent to an evasion of the provisions of the Limitation of Actions Act 1974 (Qld), so some adequate ground will be required, in order to justify such an amendment.  The reasoning of the majority in Draney with respect to the condition in r 376(4)(b) is equally applicable where r 376 does not apply, because the condition in r 376(1) is not satisfied.
37. [37]
    After the decision in Draney, s 81 was amended by s 67 of the Justice and Other Legislation (Miscellaneous Provisions) Act 2002 (Qld) to include a new subsection which is now found in s 16(3) of the CPA.  The effect of that amendment did not alter the general discretion conferred by s 81 (now s 16 of the CPA) to allow the amendment of a claim and statement of claim despite the Limitation of Actions Act 1974.
38. [38]
    Mr Grant-Taylor QC (who appears with Mr O'Sullivan of counsel for Ms Stimpson) submits that where r 376(1) of the UCPR did not apply to a proposed amendment, so that a party could not proceed to add a new cause of action pursuant to r 376, there was no scope for r 376 to operate as anticipated by s 16(3) of the CPA and the party was entitled to have recourse to the broad discretion conferred on the court pursuant to s 16(2) of the CPA.  Mr Diehm QC who appears on behalf of the second respondent agrees with that construction of s 16 of the CPA, making the submission that, as r 376 does not apply to the addition of the new cause of action in the proceeding sought by Ms Stimpson, there is no relevant rule that limits the application of s 16 of the CPA.
39. [39]
    The parties note that for the same reason that r 376 does not apply to Ms Stimpson’s application, s 16(2)(c) does not apply.  Both parties urge the Court to exercise the general discretion provided for in s 16(2) of the CPA in deciding whether to allow the amendment to add the new cause of action.
40. [40]
    This construction of s 16 of the CPA advanced by both parties must be correct.  The decision of the majority in Draney was addressed by the Legislature’s amendment of s 81 of the SCQA to make it clear that, if the rules of court limit the circumstances in which amendments may be made, there was not to be recourse to s 81 when the relevant rule of court providing for amendment to add a new cause of action or a new party applied.  If the circumstances for r 376 of the UCPR to apply (pursuant to either r 376(1) or r 376(4)(b)) are not applicable to a particular case, then the general discretion under s 81 (now s 16 of the CPA) remained.  It would usually be a relevant factor to take into account in the exercise of the discretion under s 16(2) of the CPA that r 376 of the UCPR was not applicable.  How that factor is taken into account will depend on the circumstances of the case, so that it cannot be characterised as a factor that will affect the exercise of the discretion in one way only or the other way only.
41. [41]
    There was one aspect of the construction of s 16(4)(a) of the CPA on which counsel for Ms Stimpson and counsel for the second respondent differed.  The second respondent argues that, even if the Court were to grant leave to Ms Stimpson to amend her claim and statement of claim in the proceeding to include the dependency claim, the second respondent would still be entitled to rely on the limitation defence and relies on r 387 of the UCPR.  Ms Stimpson argues that the exercise of the discretion by the Court under s 16(2) is in circumstances where the limitation defence would be available, if the dependency claim were pursued otherwise than by an amendment to the proceeding, and the exercise of the discretion under s 16(2) in favour of the applicant to amend the proceeding to include the dependency claim must have the effect of depriving the second respondent of the limitation defence.
42. [42]
    Section 81 was inserted in the SCQA by the Civil Justice Reform Act 1998 (Qld) in anticipation of the commencement of the UCPR.  The Explanatory Note for the bill that was enacted as the Civil Justice Reform Act 1998 contained the following explanation in respect of s 81:

“… empowers a court to allow an amendment whether or not it adds a cause of action that arose after the proceedings were started.  It also allows the substitution or addition of parties, even if a limitation period has expired since the proceedings were commenced.  It overcomes situations such as where a company against which a proceeding has been commenced does not disclose that the proper defendant in a proceeding was a related company, until after the limitation period has expired.”

43. [43]
    As Pincus JA recognised in Draney at [23] “the effect of adding a new cause of action out of time is equivalent to an evasion of the provisions of the Limitation of Actions Act 1974”.  See also the observation to similar effect of McMurdo P in Draney at [2].  On the basis of that interpretation by the majority in Draney of the effect of what is now s 16(4)(a) of the CPA, s 16(4)(a) of the CPA should be applied as depriving a defendant of a limitation defence when a plaintiff succeeds in obtaining an order under s 16(2).  Rule 387 of the UCPR which is for the purpose of determining when an amendment takes effect applies expressly when a document is being amended under part 3 of chapter 10 of the UCPR (such as pursuant to r 376) and therefore does not apply to an amendment allowed by the Court in the exercise of the power conferred by s 16(2) of the CPA which applies despite the Limitation of Actions Act 1974.
44. [44]
    It is implicit in both parties’ submissions to this Court that s 57 of the Act is not the exclusive means for pursuing a claim under the Act where the period of limitation has expired and that it was for Ms Stimpson to persuade the Court in the exercise of the power conferred by s 16(2) of the CPA to allow the amendments to the claim and statement of claim in the proceeding to add the additional cause of action which was the subject of the notice of claim for the fatal injury.
45. [45]
    There are unusual circumstances in this case where there are two claims made by Ms Stimpson under the Act arising out of the one motor vehicle accident and a claim form was given in respect of each claim, even though the claim form for the dependency claim was given after the limitation period for bringing the dependency claim had expired.  The material before the primary judge included the reports from the clinical psychologist who treated Ms Stimpson on 12 November and 17 December 2019 and 16 January 2020 and the medico-legal report dated 28 April 2020 from psychiatrist Dr Andrew Byth who interviewed Ms Stimpson at the request of her solicitors and diagnosed her with a posttraumatic stress disorder with prominent associated anxiety and depression and an additional diagnosis of an adjustment disorder with depressed mood as a result of her exposure to the aftermath of the accident and persistent reliving experiences.  There was also in the material a report dated 3 June 2020 from psychiatrist Dr Derek Lovell who assessed Ms Stimpson at the request of the second respondent.  The proposed amended claim and statement of claim exhibited to Ms Stimpson’s solicitor’s affidavit filed on 22 October 2021 showed that the original claim for $454,754.40 for damages for personal injury was proposed to be increased by an additional amount of $274,800 in respect of the dependency claim, allowing the matter to remain within the jurisdiction of the District Court.
46. [46]
    The following factors are relied on by Ms Stimpson to submit that the discretion should be exercised in her favour.  The second respondent had notice within the limitation period that applied to the dependency claim of Ms Stimpson’s intention to bring a claim for damages for personal injury arising out of the accident which put the second respondent on notice that the circumstances of the accident should be investigated and also the circumstances relevant to the claim for damages for nervous shock.  The insurer has admitted liability for the accident.  Ms Stimpson was blameless for the delay in prosecuting her dependency claim, as she was never informed by her solicitors within the limitation period that she could make such a claim.
47. [47]
    The factors relied on by the second respondent to urge against the exercise of the discretion under s 16(2) in favour of Ms Stimpson include the following.  The fact that Ms Stimpson cannot rely on r 376 of the UCPR to amend the claim in the proceeding is a relevant factor to the exercise of the discretion under s 16(2) of the CPA.  If Ms Stimpson were not successful with her application under s 16(2), she would have a good claim against her solicitors.  The second respondent should not be denied the defence under the Limitation of Actions Act 1974 which accrued in the circumstances where Ms Stimpson cannot bring her application within r 376(1) of the UCPR or s 16(2)(c) of the CPA.
48. [48]
    The second respondent does not rely, however, on any specific prejudice relating to the fairness of any trial due to the delay in the giving of the notice of claim for the fatal injury after the expiration of the limitation period for bringing the dependency claim.
49. [49]
    The factor that Ms Stimpson may have a good claim against her solicitors if she did not succeed in amending the proceeding to include her dependency claim is not irrelevant, but is not a factor that should weigh against Ms Stimpson on her application under s 16(2) of the CPA, when she herself was blameless for the delay in giving notice of the fatal injury claim.  The fact that the circumstance envisaged in s 16(2)(c) does not apply does not preclude the Court otherwise exercising the broad power under s 16(2) to grant leave to amend the claim and statement of claim to add the new cause of action.  The factors relied on by the second respondent that Ms Stimpson cannot rely on r 376 of the UCPR to amend the claim and that, if the application under s 16(2) succeeds in respect of the dependency claim, the second respondent is denied the limitation defence, lose much of their significance when the second respondent does not point to any specific prejudice in the making of the order sought under s 16(2).
50. [50]
    In accordance with Draney, the exercise of the discretion under s 16(2) of the CPA requires the weighing up of all the relevant factors to determine whether it is in the interests of justice to make the order sought by an applicant.  In the circumstances of this particular case, weighing up those factors results in the conclusion that the interests of justice favour granting the leave to Ms Stimpson pursuant to s 16 of the CPA to amend the claim and the statement of claim in the proceeding in the manner shown in the drafts exhibited to her solicitor’s affidavit that was before the primary judge.

Orders

51. [51]
    The reason for the costs of the application before the primary judge being ordered to be paid by Ms Stimpson’s solicitors could be justified when that application was dismissed.  As Ms Stimpson has succeeded on the appeal and obtained the relief that was sought in the application before the primary judge, it is appropriate that costs follow the event for the application before the primary judge and the application and appeal to this Court.
52. [52]
    The parties may need to consider ancillary orders to deal with the procedures under the Act that remain to be complied with in respect of the dependency claim.  If the parties cannot agree on those orders, that can be dealt with by an application in the proceeding made to a District Court judge.
53. [53]
    The following orders should therefore be made:

1. Application for leave to appeal granted.
2. Appeal allowed.
3. Set aside the orders made by the primary judge on 29 October 2021.
4. Leave to the appellant pursuant to s 16 of the Civil Proceedings Act 2011 (Qld) to amend the claim and the statement of claim in proceeding DC No 140 of 2021 in accordance with the drafts which comprise exhibit TI10 to the affidavit of Ms Ibraheem filed on 22 October 2021.
5. The second respondent must pay the appellant’s costs of the application before the primary judge, the application for leave to appeal and the appeal.