Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Darling Downs Aviation Pty. Ltd. v Shaw[2014] QDC 93

Darling Downs Aviation Pty. Ltd. v Shaw[2014] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

Darling Downs & Anor v Shaw & Ors [2014] QDC 93

PARTIES:

DARLING DOWNS AVIATION PTY LTD

(ACN 010 320 582)

(first plaintiff)

and

DRIFTER AIRCRAFT PTY LTD

(ACN 118 955 196)

(second plaintiff)

v

GLEN BARRY SHAW

(first defendant)

and

ROSS MICHAEL DAVIS

(second defendant)

and

GB SHAW & CO PTY LTD

(ACN 126 639 763)

(third defendant)

FILE NO/S:

2537/11

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2014

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. The amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim filed on 11 February 2014 will be struck out.
  1. The plaintiffs are to file and serve a further amended statement of claim deleting those parts by 9 May 2014.
  1. The third amended statement of claim filed on 13 March 2014 is struck out.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the plaintiffs claim damages for breach of contract and conversion of chattels – where the plaintiffs amended the pleadings to include the second defendant in respect of allegations previously plead against the first defendant or include his knowledge of allegations plead against the first defendant – whether a new cause of action is being added

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS - where the plaintiffs claim damages for breach of contract and conversion of chattels – whether the plaintiffs amended the pleadings – where the relevant limitation period ended, therefore leave is required if a new cause of action is being added – whether leave should be granted to the plaintiffs to make the amendments

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 371(2),    r 379(2)

Borsato v Campbell [2006] QSC 191

Darney v Barry [1999] QCA 491

Wolfe v State of Queensland [2009] 1 Qd R 97

COUNSEL:

Mr B McGlade for the applicant/second defendant

Mr P Travis for the respondents/plaintiffs

SOLICITORS:

Bond & Co Lawyers for the applicant/second defendant

Aiden Lawyers for the respondents/plaintiffs

Background

  1. [2]
    The primary question for resolution is whether certain amendments contained in the plaintiffs’ second amended statement of claim filed on 11 February 2014 include a new cause of action against the second defendant, Mr Davis, and, therefore, required leave pursuant to r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). It is common ground that the relevant limitation period has ended and, therefore, leave would be required if a new cause of action is being added. Leave was not obtained prior to the filing of the second amended statement of claim.
  1. [3]
    Mr Davis applies, purportedly pursuant to r 371(2) of the UCPR, for an order that the second amended statement of claim, and the step taken in filing it, “is a nullity and is ineffectual”. Alternatively, he seeks that the amendments made in the second amended statement of claim (with the exception of that made to paragraph 53) be either: disallowed pursuant to r 379; struck out pursuant to r 171; or struck out, disallowed or treated as a nullity and ineffectual pursuant to r 371.
  1. [4]
    By separate application, the plaintiffs seek a declaration that the amendments do not require leave; or alternatively that leave be granted. They contend that the amendments do not include a new cause of action, and merely particularise the cause of action, or causes of action, previously pleaded. If, contrary to their primary submission, a new cause of action has been included, they say that it is a clear case for the granting of leave.

Claims against the First and Second Defendant

  1. [5]
    As against Mr Davis, the plaintiffs claim damages for breach of contract and for conversion of chattels. As against the first defendant, Mr Shaw, the plaintiffs claim damages for breach of contract, breach of fiduciary duty, negligence and conversion.
  1. [6]
    Both Mr Davis and Mr Shaw worked for the first plaintiff, and then the second plaintiff, as aircraft maintenance engineers. The claims for conversion against each relate to chattels removed by Mr Shaw from a facility at Edenoperated by the first plaintiff (and later by the second plaintiff) without the first plaintiff’s consent. Chattels alleged to have been converted are listed in paragraph 19 of the first and second amended statements of claim; although that list is not pleaded as being exclusive.

The amendments

Paragraph 24

  1. [7]
    As against Mr Davis, it is pleaded at paragraph 24 of the first amended statement of claim that he, in cooperation with Mr Shaw, fitted various of the chattels into an aircraft which belonged to Shaw’s father. The second amended statement of claim amends paragraph 24 so as to allege that Davis assisted Shaw with the rebuild of the aircraft belonging to Shaw’s father, including cleaning parts, measuring and performing die checks, and that during the rebuild, with the knowledge of Davis and Shaw, the previously identified chattels were fitted into the aircraft.

Paragraph 23A

  1. [8]
    The second amended statement of claim adds a new paragraph 23A in the following terms:

“Between August 2005 and August 2007:

  1. (a)
    Mr Davis and Mr Shaw removed the propeller form an aircraft (Cessna, C182H, VH-PQB) (PQB), which had been brought to the Eden Facility for an inspection for following a ‘prop-strike’;
  1. (b)
    Mr Davis and Mr Shaw fitted the propeller from the Shaw Aircraft to the PQB;
  1. (c)
    Mr Davis and Mr Shaw took the PQB for various flights;
  1. (d)
    Mr Davis removed the PQB engine from service and recommended that the engine be bulk stripped;
  1. (e)
    Mr Davis determined that the crankshaft of the PQB did not need repair;
  1. (f)
    Mr Davis removed the engine from the PQB, and disassembled the engine and cleaned the engine parts;
  1. (g)
    Mr Davis sent PQB engine parts to Hawker Pacific for inspection, and also sent a cracked crankshaft to Hawker Pacific that he purported to have obtained from the PQB, but which was not, in fact from the PQB engine;
  1. (h)
    Mr Davis had a conversation with Mr Shaw during which words to the following effect were stated:

SHAW: ‘I want to change the designation of the PSA engine from phase one to phase two’.

  1. (i)
    In response, Mr Davis agreed to help with Mr Shaw’s plan, and they spoke about how they could do this.
  1. (j)
    When Mr Davis agreed to help Mr Shaw with his plan:
  1. (i)
    Mr Davis and Mr Shaw knew that the purpose of the plan was to downgrade the engine of the PQB and upgrade the engine of the Shaw Aircraft;
  1. (ii)
    Mr Davis and Mr Shaw knew that the owner of the PQB did not know about the planned swapping of engine parts between the PQB and the Shaw Aircraft;
  1. (k)
    Mr Shaw made a number of phone calls to find out the information needed to change over the engines between the PQB and the Shaw Aircraft;
  1. (l)
    Mr Davis and Mr Shaw continued to have conversations about how to change the engines between the PQB and the Shaw Aircraft;
  1. (m)
    Mr Shaw told Mr Thomson that the PQB crank shaft and starter shaft were cracked and that Mr Shaw would source alternative parts to be fitted to the PQB:
  1. (n)
    Mr Davis did not inquire into or otherwise determine the source of the parts that Mr Shaw obtained;
  1. (o)
    When the PQB parts returned to the Eden Facility from the Hawker Pacific, Mr Davis unpacked the parts and placed them into their appropriate pigeon hole of the engine shop for the rebuild of the engine;
  1. (p)
    After Mr Davis placed the PQB parts in the pigeon holes, he spoke with Mr Shaw about swapping the parts;
  1. (q)
    Mr Davis and Mr Shaw swapped the crank shafts, counter balance weights and pins, connecting rods, and crank shaft gears and attaching bolts;
  1. (r)
    Mr Davis identified the bearings to go with each engine, knowing that those bearings were different form the ones that were removed from the respective engines. Mr Davis did this because it was necessary to facilitate the swapping of engine parts between the engines;
  1. (s)
    When Mr Davis did those things aimed at swapping engine parts between the engines he knew that what he was doing was wrong;
  1. (t)
    Mr Davis rebuilt the engine for the PQB using the parts from the Shaw Aircraft, and also swapped the exhaust system, oil cooler and vernatham;
  1. (u)
    Mr Davis ordered engine parts on the false premise that the crankshaft and other major components of the PQB were defective, all while he knew that the crankshaft and other major components were not defective. Mr Davis did this because it was necessary to facilitate the plan with Mr Shaw to swap the engine parts from the PQB to the Shaw Aircraft;
  1. (v)
    No changes to the engine of the PQB could be made without Mr Davis’s knowledge;
  1. (w)
    Mr Davis and Mr Shaw concealed their activities from the owner of the PQB and the Plaintiffs.”

Paragraph 25

  1. [9]
    Paragraph 25 pleads that the things pleaded in paragraph 24 were done by Mr Davis without the first plaintiff’s consent and knowing that Mr Shaw intended to conceal the use of the chattels from the first plaintiff and use them for his own benefit. The amendment seeks to add to the things allegedly done by Mr Davis, without consent and knowing of Mr Shaw’s intention, those further things which would be pleaded in the new paragraph 23A. An amendment is also sought which would include an intention on the part of Mr Shaw “to permanently deprive” (presumably the first plaintiff although this is not clear) as a matter known by Mr Davis at the time he did the things alleged in paragraphs 23 and 24.

Paragraphs 27-39

  1. [10]
    In the first amended statement of claim certain “dangerous conduct” is alleged against Mr Shaw only. Paragraph 27 alleges that, in the course of his employment, Shaw had been entrusted with performing maintenance and repairs on various particularised aircraft owned by the first plaintiff. Similarly, paragraph 28 alleges that in the course of his employment, Shaw had been entrusted with performing maintenance and repairs on various particularised aircraft owned by customers of the first plaintiff.
  1. [11]
    By paragraph 30 it is alleged, amongst other things, that he, Shaw:
  1. (a)
    Falsified aircraft data records relating to two of the aircraft owned by customers, one of which was PBQ, though he knew, or ought to have known, that such falsification would pose a serious risk to the safety of persons using the aircraft;
  1. (b)
    Deliberately damaged the propeller of PBQ and modified its blades and hub so as to render them unserviceable, and after which he used the damaged propeller to induce and justify the first plaintiff’s purchase of a replacement propeller on behalf of the customer, which he then installed on PBQ;
  1. (c)
    Painted PBQ’s original propeller, which was by then unserviceable, to match the first plaintiff’s “test club” propeller (which was a specialised calibration and adjustment device used to calibrate other aircraft) after which he replaced the test club propeller with the damaged propeller and removed the test club propeller from the first plaintiff’s facility;
  1. (d)
    Replaced the Perspex emergency exit windows on two other aircraft, TTG and USA, which windows are intended to be broken in the event of an emergency, with an unbreakable polycarbonate material, and that he:
  1. (i)
    knew or ought to have known that such unbreakable material was not to be installed on the aircraft; and
  1. (ii)
    documented all of the work he performed on those aircraft except for the replacement of the Perspex with the polycarbonate material;

  1. (k)
    Performed an engine overhaul on the aircraft belonging to his father knowing that he did not have the required supervision; and without signoff from an appropriate CASA engine approved signatory, which he knew he required by law.
  1. [12]
    Paragraph 31 alleges that each of the matters pleaded in paragraph 30:
  1. (a)
    Posed a risk to the safety of persons who might travel in the relevant aircraft; and
  1. (b)
    Caused the plaintiffs to reasonably conclude that Shaw had acted dishonestly, without regard for the safety of others and/or incompetently during his employment with the plaintiffs.
  1. [13]
    Paragraph 32 alleges that Shaw did the things alleged against him in paragraph 30 without the plaintiff’s knowledge or consent.
  1. [14]
    Paragraph 33 alleges that Shaw was obliged to discharge his role in accordance with law, including the Civil Aviation Regulations (‘the CAR’).
  1. [15]
    Paragraphs 34, 37 and 38 recite certain regulations of the CAR.
  1. [16]
    Paragraphs 35, 36 and 39 allege that various parts of Shaw’s conduct pleaded in paragraph 30, contravened the regulations set out in, respectively, paragraphs 34, 36 and 38.
  1. [17]
    The amendments, if permitted, would include Mr Davis with Mr Shaw in respect of each of the allegations in paragraphs 27, 28, 30(a), 30(b), 30(c), 30(d), and 32. In respect of the allegation in paragraph 30(k), it would be alleged against Mr Davis that at the time that Mr Shaw was performing the overhaul of the engine he, Davis, knew that Shaw did not have an engine overhaul authority.
  1. [18]
    The allegation at paragraph 33 would be amended to include an allegation that Mr Davis also was obliged to discharge his role in accordance with law, including the CAR. Paragraphs 35, 37 and 39 would be amended to allege that the conduct then pleaded against Mr Davis in the then amended paragraphs 30(a), (b) and (d) also contravened the various regulations identified in paragraphs 34, 36 and 38.

Paragraphs 40 to 53

  1. [19]
    In paragraph 40 of the first amended statement of claim it is pleaded that the first plaintiff suffered loss and damage in an amount exceeding $41,195 as a consequence of the actions of Mr Shaw and Mr Davis in respect of the chattels as pleaded in paragraphs 19 to 26. That pleading would incorporate these matters now sought to be pleaded in the amended paragraphs 24 and 25, and the new paragraph 23A.
  1. [20]
    Paragraph 41 of the first amended statement of claim alleges that each of the plaintiffs suspended their respective businesses for two reasons:
  1. (a)
    Shaw and Davis’s dishonesty and breach of the plaintiffs’ trust in removing the chattels from the Edenfacility, as alleged in paragraphs 19 to 26; and
  1. (b)
    Shaw’s dangerous conduct and contraventions of the CAR as pleaded in paragraphs 27 to 39.
  1. [21]
    No amendment is sought to be made to paragraph 41 in the second amended statement of claim. However, as with paragraph 40, the proposed amendments to paragraphs 24 and 25 and the new paragraph 23A, would be incorporated in the pleading in paragraph 41(a).
  1. [22]
    No amendment, directly or by incorporation, is sought to paragraph 41(b); notwithstanding the inclusion of Mr Davis in the allegations of dangerous conduct in the proposed amendments to paragraphs 27, 28, 30(a), 30(b), 30(c), 30(d), 32, 33, 35, 37 and 39. It remains solely Mr Shaw’s dangerous conduct, and not that of Mr Davis, to which it is said the suspension of the plaintiff’s business was consequential.
  1. [23]
    Paragraph 42 of the first amended statement of claim alleges that the suspension of the plaintiffs’ respective business operations was necessitated by the need to perform thorough audits and safety checks on the aircraft that had been maintained or repaired by Mr Shaw and the plant and equipment at the Eden facility. This allegation is sought to be amended to include also the need to perform audits and safety checks on aircraft which Mr Davis had maintained and repaired.
  1. [24]
    Paragraphs 43 and 44 allege that the suspension of business and subsequent auditing and safety checks caused the plaintiff’s to suffer loss and damage totalling $511,677.
  1. [25]
    Breaches of their respective employment contracts are pleaded against each of Mr Shaw and Mr Davis in paragraphs 46 to 53 of the first amended statement of claim.
  1. [26]
    For present purposes, of particular relevance is paragraph 51 which pleads that the matters set out in paragraphs 30, 32, 35, 37 and 39 constituted a breach by Mr Shaw of implied terms of his employment contract. The second amended statement of claim as filed seeks to amend paragraph 51 so as to allege that the matters pleaded in the identified paragraphs, which would themselves have been amended so as to include conduct by Mr Davis within them, also constituted a breach by Mr Davis of his employment contract. It should be noted that in its submissions, and in what is purported to be a third amended statement of claim filed after this application had been brought by the second defendant, the plaintiffs no longer press the amendments to paragraph 51. However, it is necessary to consider what was sought in the amendments to the second amended statement of claim as filed to analyse properly whether any new cause of action was being raised, or is now raised.
  1. [27]
    The matters alleged in the first amended statement of claim to have constituted a breach by Mr Davis of his employment contract are set out in paragraph 52. They are said to be the matters pleaded in paragraphs 24 and 25. Through the amendments proposed in the second amended statement of claim, that pleading would now include the amendments to paragraph 24 and, by incorporation through paragraph 25, those in the new paragraph 23A.

Do the proposed amendments raise a new cause of action?

  1. [28]
    In Wolfe v State of Queensland[1]Keane JA, as his Honour then was, and with whom Muir JA and Douglas J agreed, at [17], quoted with approval from the summary of the relevant cases under taken by McMurdo J in Borsato v Campbell[2]wherein it was said:

“The term ‘cause of action’ was defined in Cooke v Gill ([1873] LR8CP 107 at 116) as being ‘every fact which is material to be proved to entitle the plaintiffs 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 in 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 Saw Miling No 1 Pty Ltd & Ors v State of Queensland ([2003] QCA 311).”

  1. [29]
    Central to the plaintiffs’ contention that the amendments in the second amended statement of claim do not raise any new cause of action is their submission that:

“The assistance and knowledge alleged against Mr Davis at paragraphs 24 and 25 leaves open for further particularisation, or evidence at trial, as to what assistance was given by Mr Davis to Mr Shaw in connection with the rebuild (in addition to the non-exclusive instances pleaded in the amended paragraph 24), and how Mr Davis knew the matters pleaded in paragraph 25. The amendments reflected in paragraphs 4(c)(d), 23A, 30. 32, 33, 35, 37 and 39, merely detail that assistance and the grounds for the allegation concerning Mr Davis’s state of mind.” (emphasis added).

  1. [30]
    That submission should be rejected.
  1. [31]
    It is convenient to deal first with the amendments to paragraphs 30, 32, 33, 35, 37 and 39.
  1. [32]
    The allegation now included at paragraph 30(a) is that Mr Davis falsified aircraft data records. One of the aircraft identified as having had its records falsified is PQB. PQB is the aircraft from which parts were swapped to rebuild the aircraft belonging to Shaw’s father. Conceivably, the falsification of records relating to PQB might be said to provide particulars of the assistance given by Davisto Shaw in the rebuild pleaded in the further amended paragraph 24. However, the other aircraft the records relating to which are said to have been falsified, HGT, has no relationship at all to any of the allegations in paragraphs 24 or 25. The falsification of records relating to that aircraft cannot be a particular of the assistance provided by Davisto Shaw in the rebuild, or of the allegations concerning Davis’s state of mind.
  1. [33]
    Similarly, the allegation at paragraph 30(d) that Davis replaced the Perspex emergency exit windows with unbreakable polycarbonate material knowing that the material was not to be installed on those aircraft, TTG and USA, and without documenting the exchange, has no relationship at all to the allegations of assisting Shaw rebuild an entirely different aircraft.
  1. [34]
    The allegations in amended paragraphs 30(b), (c) and (k) do relate to matters associated with the rebuild of Mr Shaw’s father’s aircraft, however, there is nothing in the text or context of the pleading which in any way links those matters with the earlier pleading in paragraphs 24 and 25.
  1. [35]
    The pleading at paragraph 32 that Mr Davis did the things alleged against him in paragraph 30 without the knowledge or consent of the plaintiffs, again, has nothing to do with the allegations at paragraphs 24 and 25.
  1. [36]
    Paragraph 33 pleads an obligation on Mr Davis to discharge his obligation according to law and the CAR. Paragraphs 35, 37 and 39 plead breaches of that obligation. They do not provide details of assistance given to Shaw; or of Davis’s state of mind in doing so.
  1. [37]
    In my view, it is tolerably clear that the matters set out in the amended paragraphs 30, 32, 33, 35, 37 and 39 were pleaded in support of the allegation of breach of contract against Mr Davis in the amendment made to paragraph 51; in the same way as those matters were alleged, also in paragraph 51, to constitute the breach of contract by Mr Shaw.
  1. [38]
    The fact that the plaintiff now seeks to again remove Mr Davis from the pleading in paragraph 51 is not to the point. The point is that, as pleaded, paragraphs 30, 32, 33, 35, 37 and 39 were all to do with the allegation of breach of contract in paragraph 51. Removal of that allegation does not render those paragraphs relevant to some other part of the pleadings. It renders them irrelevant to any pleaded cause of action.
  1. [39]
    Had the plaintiffs sought to maintain the pleading of breach of contract against Mr Davis in paragraph 51, the questions would have to have been answered as to whether there was a new cause of action and, if so, whether it arose from substantially the same facts as another cause of action already claimed. As they do not seek to maintain the amendments to paragraph 51, and as I am of the view that paragraphs 30, 32, 33, 35, 37 and 39 do not detail those matters in paragraphs 24 and 25 as contended, they should be struck out pursuant to r 171 UCPR.
  1. [40]
    The amendments to paragraph 24, and the new paragraph 23A raise different considerations.
  1. [41]
    The plaintiffs contend that “there is no difference intended, and none conveyed in the substation of the verb, ‘assisted’, with the normalisation, ‘cooperation’, (as used in the prior pleading).” They contend that it is a matter of perception on the part of Mr Davis. I disagree.
  1. [42]
    As pleaded in the first amended statement of claim the allegation in paragraph 24 is that Mr Davis, in cooperation with Mr Shaw, fitted certain chattels to Mr Shaw’s father’s aircraft. As amended, the allegation is that Mr Davis assisted Mr Shaw with a rebuild of that aircraft, including performing certain tasks, and during which rebuild the particularised chattels were fitted into the aircraft with his, Davis’s, knowledge. In my view, there is a difference in those allegations. The latter takes the involvement of Mr Davis beyond the fitting of the chattels into the aircraft and it includes him in assisting with the rebuild. This conceivably includes more than the fitting of parts, particularly given that the fitting of the parts is said to have been “during the rebuild” – not that it constituted the rebuild. Further, it no longer alleges that he fitted the parts in cooperation with Shaw; but alleges that the parts were fitted with his knowledge.
  1. [43]
    The extent of the expansion of Mr Davis’s involvement as now alleged in comparison to the first amended statement of claim is evident from the plaintiff’s submissions concerning paragraph 23A. The submission that paragraph 23A merely particularises the assistance provided by Davis demonstrates the difference. If there was no difference then the submission ought be able to be made that everything alleged in paragraph 23A merely particularised the cooperation previously pleaded. In my view, that submission would be unsustainable. The matters in paragraph 23A go well beyond fitting chattels in cooperation with Shaw.
  1. [44]
    The plaintiffs’ contention that paragraph 23A particularises paragraph 24, requires a material change to the latter. One could not on any view accept the contention on the former version of paragraph 24.
  1. [45]
    It is difficult to accept that paragraph 23A particularises paragraph 24, even as amended. Textually, it does not do so. There is no attempt to connect the two paragraphs. Contextually, one would need to accept that the particulars precede the more substantive pleading. Usually, they would follow.
  1. [46]
    But, even taking the plaintiffs’ contention at face value, I am of the opinion that paragraphs 23A and 24 as amended raise a new cause of action. Whilst it has always been pleaded at paragraph 52 that the matters pleaded at paragraphs 24 and 25 constituted a breach of contract, those matters are now pleaded in quite different form and detail than previously. Paragraph 52 pleads that the matters alleged in paragraphs 24 and 25 (and by incorporation the new paragraph 23A) constitute breaches of implied terms imposing duties of each of good faith and fidelity; of trust and confidence; of good faith and fair dealing to account to the employer for property that the employee has access to by virtue of his employment; and to report to the employer derelictions that involve the employer’s property.
  1. [47]
    A breach of the duty of good faith and fidelity, of trust and confidence, or to report derelictions might be established by no more than proof of the matters now pleaded at subparagraphs 23A(g), (h), (i), (j), or (l). If it were, then it would be a breach of contract quite different from that alleged by the fitting of the chattels in the Shaw aircraft as previously pleaded.

Does the new Cause of Action arise out of substantially the same facts?

  1. [48]
    I am also of the opinion that the new cause of action does not arise out of substantially the same facts as previously pleaded. To paraphrase Thomas JA in Darney v Barry[3], the necessary additional facts to support the new cause of action, the breach of contract constituted by Mr Davis assisting in the rebuild of the Shaw aircraft doing all the things alleged in the 25 subparagraphs of paragraph 23A, do not arise out of substantially the same story as that which would have been told to support the previously pleaded cause of action. It is substantially more than a change of focus with elicitation of additional details.
  1. [49]
    Leave to amend paragraph 24 and add paragraph 23A should be refused. Those amendments should be struck out.
  1. [50]
    On the basis of those rulings, the amendment to paragraph 42 should also be struck out.
  1. [51]
    Leave is not required for the amendment to paragraph 4. Those amendments do not give rise to any new cause of action.
  1. [52]
    As noted earlier in these reasons, subsequent to the bringing of this application by the second defendant, the plaintiff filed what purported to be a third amended statement of claim. That pleading “maintained” virtually all the amendments made in the second amended statement of claim. It is appropriate to deal with that document in this application. The whole of the third amended statement of claim should be struck out.

Disposition

  1. [53]
    Rule 379(2) permits the making of any order the court considers appropriate. The appropriate orders are:
  1. The amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim filed on 11 February 2014 will be struck out.
  1. The plaintiffs are to file and serve a further amended statement of claim deleting those parts by 9 May 2014.
  1. The third amended statement of claim filed on 13 March 2014 is struck out.
  1. [54]
    I will hear the parties on the issues of costs and further directions for the conduct of the proceeding.

Footnotes

[1][2009] 1 Qd R 97.

[2][2006] QSC 191 at [8] – [10].

[3][1999] QCA 491.

Close

Editorial Notes

  • Published Case Name:

    Darling Downs Aviation Pty. Ltd. v Shaw

  • Shortened Case Name:

    Darling Downs Aviation Pty. Ltd. v Shaw

  • MNC:

    [2014] QDC 93

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    30 Apr 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.