Theodoulou v Body Corporate for the Proprietors Eighth Avenue Plaza
[2001] QDC 357
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- Unreported Judgment
- Theodoulou v Body Corporate for the Proprietors Eighth Avenue Plaza[2001] QDC 357
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Theodoulou v Body Corporate for the Proprietors Eighth Avenue Plaza[2001] QDC 357
Theodoulou v Body Corporate for the Proprietors Eighth Avenue Plaza[2001] QDC 357
DISTRICT COURT OF QUEENSLAND
CITATION: | Theodoulou v. Body Corporate for the Proprietors Eighth Avenue Plaza [2001] QDC 357 |
PARTIES: | PETER THEODOULOU Plaintiff BODY CORPORATE FOR THE PROPRIETORS EIGHTH AVENUE PLAZA Defendant |
FILE NO/S: | D1035 / 1999 |
DIVISION: | District Court |
PROCEEDING: | Application |
ORIGINATING COURT: |
District Court Southport |
DELIVERED ON: | 17 August 2001 |
DELIVERED AT: | Southport |
HEARING DATE: | 13 July 2001 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
|
CATCHWORDS: | Uniform Civil Procedure Rules – correction of name of party – amendment to statement of claim – addition of cause of action out of time |
COUNSEL: | S. English for the applicant A. Kitchin for the defendant |
IN THE DISTRICT COURT OF QUEENSLAND
SOUTHPORTNo: D1035 of 1999
PETER THEODOULOU
Plaintiff
BODY CORPORATE FOR THE PROPRIETORS EIGHTH AVENUE PLAZA
Defendant
REASONS FOR JUDGMENT – ALAN WILSON SC, DCJ
(Delivered the 17th day of August 2001)
The plaintiff filed an amended statement of claim in this matter on 12 June 2001. On 26 June the defendant brought an application to disallow the amendments and, on 10 July 2001, the plaintiff applied for leave to make them. The applications were heard together. The plaintiff seeks to amend in two significant respects: to change the name of the defendant; and, to withdraw allegations he originally made based upon an alleged breach of the Workplace Health and Safety Act 1995 and substitute, for them, allegations of breaches under the Building Units and Group Titles Act 1980.
The defendant does not strenuously contest the first and concedes the amendment is, merely, one to correct a misnomer as the term is used by Lord Devlin in Davies v Elsbey Brothers.[1] The original claim names “Body Corporate for the Proprietors, Eighth Avenue Plaza” as defendant when the proper title is “Body Corporate for Eighth Avenue Plaza Community Titles Scheme Number 7714”. There is no suggestion that the defendant was confused and, indeed, it is conceded the correct defendant has been involved in the matter since January 2000. While the error is unexplained, I am satisfied it caused neither prejudice nor embarrassment to the body the plaintiff always intended to sue.
The second application involves more complex issues. The defendant, not surprisingly, consents to the amendment withdrawing the alleged breaches of the Workplace Health and Safety Act but opposes the addition of a new pleading referable to the Building Units and Group Titles Act.
The accident referred to in the statement of claim occurred on 29 November 1996 so the limitation period for the claim, for damages for personal injuries, expired on 29 November 1999. Hence this application is one to add a new cause of action, after the expiry of the relevant limitation period but before the entry of a request for trial date and is, therefore, one to which UCPR r376(4) applies. That rule provides:
“The Court may give leave to make an amendment, even if the effect of the amendment is to create a new cause of action, if-
- (a)the Court considers is appropriate; and
- (b)the new cause of action arises out of the same facts or substantially the same facts as the cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.”
Mr Kitchin, for the defendant, submits the Court’s discretion to allow amendments under this rule is fettered by the fairly narrow test derived from Weldon v Neal[2] and Lynch v Keddell (No 2)[3]: i.e. a general rule against commencement of actions after the expiration of a limitation period applies, and should only be broken in “special or peculiar” circumstances[4].
The discretion arising under rr 375 and 376 involves, now, a balancing of the requirement that the general purposes of the UCPR (encouraging the “just and expeditious resolution of the real issues”[5]) be met, against the need to preserve the effect of relevant limitation periods. In Draney v Barry[6] Pincus JA (with whom McMurdo P agreed) concluded that “…where a rule gives what is on its face an unrestricted discretion, it would not usually be right to treat it as applicable only in special circumstances.”[7] On its face, his Honour said, r 376 prescribes no limit on the discretion other than that embodied in subrule 4(b) and it should, therefore, be unrestricted in its interpretation, and application. A similar view was expressed by Atkinson J in Percy v Central Control Financial Services Pty Ltd.[8]
With respect, I share the view that an unrestricted discretion is more consistent both with the general spirit of the UCPR, and with the language of rr 375 and 376. S81 of the Supreme Court of Queensland Act 1991[9] bolsters this construction, Pincus J A holding that it gives the Court an additional, general discretion even when an application might not pass the test set out in r 376(4)(b).[10]
A finding that the discretion is no longer fettered in the way suggested by Lynch v Keddell (No 2)(supra) is not, however, the end of the matter. R 376(4)(a) requires the Court also determine whether or not the amendment is appropriate and, in my view, it is still correct to say that as a general rule Courts ought to be reluctant to allow new causes of action to be inserted, in an existing proceeding, once the limitation period has expired.
Here, I am told by Mr English for the plaintiff, the proposed amendment corrects an error made by previous counsel. The rules of procedure are, as already discussed, intended to facilitate the litigation of the real issues in a case. If a plaintiff is to be defeated it should be because his action, properly brought, deserved defeat and not because his counsel has made an error in claiming a breach of the wrong statutory duty in circumstances where, as here, there is no evidence the amendment will cause the plaintiff any prejudice, or embarrassment.
The plaintiff has, by these errors, put the defendant to unnecessary costs. I order:
- The defendant’s application 25 June 2001 is dismissed.
- The plaintiff have leave to amend the name of the defendant from Body Corporate for the Proprietors, Eighth Avenue Plaza to Body Corporate for Eighth Avenue Plaza Community Titles Scheme Number 7714.
- The plaintiff have leave to file and serve an amended statement of claim in the form of Exhibit GG-2 to the affidavit of Greg Gregory filed on 10 July 2001.
- That the plaintiff pay the defendant’s costs of and incidental to the defendant’s application filed 25 June 2001, and the plaintiff’s application filed 10 July 2001, assessed on the standard basis.
Footnotes
[1] [1961] 1 WLR 170 at 176
[2] (1887) 19 QBD 394 per Lord Esher at 395
[3] (1990) 1 Qd R 10
[4] Lynch v Keddell (1990) 1 Qd R 10 per Macrossan CJ (with whom McPherson J agreed) at 17
[5] Uniform Civil Procedure Rules r 5
[6] Unreported judgment: Supreme Court of Queensland, 2 September; 30 November 1999.
Appeal No 11361 of 1998, [1999] QCA 491
[7] Draney v Barry [1999] QCA 491 par 21
[8] [2000] QSC 129 at pars 31-32
[9] S 81 of the Supreme Court of Queensland Act 1991 states:
(1)This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.
(2)The Court may order an amendment to be made, or grant leave to a party to make an amendment, even though-
(a)tthe amendment will include or substitute a cause of action or add a new party; or
(b)the cause of action included or substituted arose after the proceeding was started; or
(c)a relevant period of limitation, current when the proceedings was started, has ended.
(3)This section applied despite the Limitation of Actions Act 1971.
[1]10 Draney v Barry (supra) at par 23.