Hodgson v State of Queensland
[2023] QDC 171
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- Unreported Judgment
- Hodgson v State of Queensland[2023] QDC 171
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Hodgson v State of Queensland[2023] QDC 171
Hodgson v State of Queensland[2023] QDC 171
DISTRICT COURT OF QUEENSLAND
CITATION: | Hodgson v State of Queensland [2023] QDC 171 |
PARTIES: | KEVIN JAMES HODGSON (plaintiff/applicant) v STATE OF QUEENSLAND (defendant/respondent) |
FILE NO/S: | Mackay District 19 of 2023 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland, Mackay |
DELIVERED ON: | 29 September 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 August 2023 |
JUDGE: | Williamson KC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – PLEADINGS – AMENDED STATEMENT OF CLAIM – where the plaintiff seeks damages for negligence, breach of contract or breach of statutory duty – where the plaintiff seeks leave to amend the statement of claim to change the date of injury – whether leave should be granted to amend under rule 375 of the Uniform Civil Procedure Rules 1999 – whether the pleading is invalid – whether the amendments have the effect of starting a new proceeding precluded by operation of the Workers’ Rehabilitation and Compensation Act 2003. |
LEGISLATION: | Uniform Civil Procedure Rules 1999 rr 8, 375, 376, 378 & 387 Workers’ Rehabilitation and Compensation Act 2003 s 302 |
CASES: | Narayan v S-Pak Pty Ltd [2003] Qd R 387 Thomas v State of Queensland [2001] QCA 336 |
COUNSEL: | Mr M M Smith for the plaintiff/applicant Mr G O'Driscoll for the defendant/respondent |
SOLICITORS: | Maurice Blackburn for the plaintiff/applicant Crown Law for the defendant/respondent |
- [1]On 26 June 2023, the plaintiff commenced a proceeding in this Court by way of Claim and statement of claim. The Claim seeks damages for negligence arising out of an injury alleged to have occurred during the course of the plaintiff’s employment with the defendant.[1] The statement of claim pleads the injury occurred on 9 December 2021.
- [2]Prior to filing the Claim, the plaintiff and the defendant participated in a compulsory conference. This occurred on 4 May 2023. It is clear from a Notice of Assessment and a Notice of Claim for Damages issued under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) that the compulsory conference related to a specific injury to the plaintiff’s lower back. The injury was described in the Notice of Claim for Damages as a musculoskeletal strain of the lumbar spine, including aggravation of pre-existing lumbar degeneration. This is the ‘injury’ pleaded in paragraph 13 of the statement of claim.
- [3]The limitation period for the proceeding is prescribed by the WCRA, namely, section 302. Sub-section (1) of this provision identifies when a claimant may bring a proceeding for damages for a personal injury. This provision is to be read with sub-section (3), which states:
- “(3)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”
- [4]The evidence establishes the Claim was filed on 23 June 2023, being a date within the 60 day period prescribed in section 302(3).
- [5]The plaintiff has made an application for leave to file and serve an amended statement of claim. A number of amendments are proposed. There is a singular purpose for each amendment. It is to correct an error. The statement of claim pleads that the workplace accident causing the alleged injury occurred on 9 December 2021. This is wrong. It is an error in the pleading. It should read 6 December 2019.
- [6]No amendment to the Claim is necessary, or proposed, to correct the error.
- [7]An examination of the proposed amended statement of claim reveals that the amendments, if allowed, would not alter the essential elements of the Claim. The amendments do not alter the alleged duty of care, the alleged breach of that duty nor any injury caused by the breach. The same point can be made in relation to the essential elements of the claims made in the alternative.
- [8]The defendant has not filed a Defence. It opposes the application for amendment.
- [9]The power to amend a pleading is found in rule 375(1) of the Uniform Civil Procedure Rules 1999 (UCPR). The rule contemplates that a court may allow or direct a party to, among other things, amend a pleading in the way, or on the conditions, the court considers appropriate. This power is subject to rule 376.
- [10]Rule 376(1) of the UCPR states:
“Amendment after limitation period
- 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.” (Emphasis added)
- [11]Rule 376(2) to (4) ‘mention’ three types of amendments. First, an amendment correcting the name of a party, even if it adds a new party. Second, an amendment changing the capacity in which a party sues. Third, an amendment to include a new cause of action.
- [12]There is no suggestion that the proposed amendments to the statement of claim correct the name of a party, or change the capacity in which the plaintiff sues. Nor do the proposed amendments have the effect of introducing a new cause of action. As I have already observed, the amendments proposed do not change the essential elements of the claim. In the circumstances of the primary case, the amendments do not change the duty of care, the alleged breach of that duty or any injury flowing from the alleged breach.[2]
- [13]Given paragraph [12], it is my view that rule 376 is not engaged in the circumstances of this case. As a consequence, leave may be granted (under rule 375) to allow the proposed amendments to the statement of claim. In circumstances where: (1) the amendments correct an error in the statement of claim; (2) the amendments do not change the alleged injury, which was the subject of a compulsory conference between the parties; and (3) fault for the drafting error lies at the feet of the plaintiff’s legal team; it is a clear case for the granting of leave to amend.
- [14]The defendant’s opposition to the application was founded on two propositions.
- [15]First, that the pleading filed was ‘invalid’ because it relates to a different injury date to that the subject of the compulsory conference. Second, to allow the amendments would have the effect of validating the commencement of an invalid Claim outside of the limitation period prescribed by section 302(3) of the WCRA.
- [16]In support of these contentions, reliance was placed on the decision in Narayan v S-Pak Pty Ltd [2003] 2 Qd R 387, [6] and [7]. With the decision in mind, Mr O'Driscoll submitted as follows:
“Rule 376 permits amendment after the limitation period however, the application is limited that the relevant limitation period was current when the proceedings started. Rule 376 does not provide that the amendment, if granted now, after the expiration of the limitation period can validate the erroneous pleading, nunc pro tunc, so as to comply with the absolute provision of instituting a proceeding within 60 days.”
- [17]I reject this submission and the propositions relied upon to resist the amendments to the statement of claim for the following reasons.
- [18]First, no authority was cited by Mr O'Driscoll for the proposition that the Claim, as commenced, was invalid and, in effect, to be treated as if it were void ab initio. Nor did Mr O'Driscoll refer the Court to provisions of the UCPR or WCRA that expressly, or by implication, suggest the error in the statement of claim renders the proceeding invalid and void ab initio.
- [19]Second, the submissions advanced in support of the defendant’s position sit uncomfortably with section 302(3) of the WCRA. This provision requires a proceeding to be brought within 60 days after a compulsory conference. The term ‘proceeding’ is not defined in the WCRA. The term is to be given its plain and ordinary meaning. That meaning, in my view, includes the plaintiff’s Claim, which started a ‘proceeding’ for the purposes of the UCPR.[3] The Claim, and attached statement of claim, are about the injury the subject of the compulsory conference held between the parties on 4 May 2023. It was not explained how invalidity is said to arise in these circumstances.
- [20]The evidence establishes that the plaintiff’s proceeding was commenced within the 60 day period prescribed in section 302(3). This, in combination with the following matters, represent a compelling basis to reject the defendant’s submissions, namely:
- the Claim that started the proceeding relates to the compulsory conference held on 4 May 2023;
- the Claim that started the proceeding was filed within the limitation period and does not require amendment;
- the amendments proposed are limited to the statement of claim;
- the amendments to the statement of claim, if allowed, do not change the essential elements of the cause of action/s upon which the Claim is founded; and
- the amendments to the statement of claim, if allowed, would not introduce a new injury, or alter the pleaded injury, beyond that which was the subject of the compulsory conference between the parties on 4 May 2023.
- [21]It can also be observed that the decision in Narayan (supra) is of no assistance to the defendant. In that case, leave to amend a pleading was refused because the Claim sought to be amended was filed outside of the prescribed limitation period. It was in this context that Chief Justice de Jersey held that the relevant limitation period prescribed was not capable of extension by way of amendment to the pleading.
- [22]This point has no application here. The plaintiff’s Claim was commenced within the prescribed limitation period. The question for the court is whether the proposed amendments to the statement of claim should be allowed after this limitation period has expired. For the reasons given above, I am satisfied this is an appropriate course.
- [23]If a different view is reached about the nature of the proposed amendments, namely that they have the effect of introducing a new cause of action, this does not, in my view, support a conclusion that the proceeding was invalid from its commencement.
- [24]Invalidity would, in my view, only flow as a consequence of the provisions of the WCRA or the UCPR. As I have already observed, I was not referred to any provision of the WCRA or the UCPR (or authority) that suggests, let alone supports the proposition, that the legislature intended the Claim here would be invalid, and void ab initio.
- [25]Rule 376(4) of the UCPR would allow leave to be granted for the proposed amendments if it were concluded they had the effect of introducing a new cause of action. The rule, if engaged, is met here because the new cause of action arises out of substantially the same facts as the cause of action for which relief has already been claimed in the proceeding. Further, given: (1) the nature of the amendments, which are to address an error in the pleadings at an early stage; and (2) the amendments do not seek to introduce an injury, or duty of care, or breach of duty of care, that was not the subject of the compulsory conference; it is entirely appropriate that leave be granted to make the proposed amendments under rule 376(4), assuming the rule was engaged and leave to amend was required.
- [26]Where rule 376(4) is satisfied, it can be observed that rule 387 of the UCPR has application. This rule states:
“387 When amendment takes effect
- If a document is being amended under this part, the amendment takes effect on and from the date of the document being amended.
- However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on and from the date of the order giving leave.
- Despite subrule (2), if an amendment mentioned in subrule (2) is made, then, for a limitation period, the proceeding as amended is taken to have started when the original proceeding started, unless the court orders otherwise.”
- [27]Here, assuming the proposed amendments introduce a new cause of action, rule 387(2) prescribes that the amendments take effect on and from the date of any order giving leave. Moreover, for the purposes of a limitation period, rule 387(3) provides that the amendments are taken to have started when the original proceeding started, unless the court orders otherwise. I will make no order ‘otherwise’. The amendments are, therefore, for the purposes of section 302(3) of the WCRA, taken to have started when the proceeding was filed, namely 23 June 2023. This is within the 60 day period prescribed by section 302(3) of the WCRA.
- [28]For these reasons, I will order that:
- the application filed 8 August 2023 be allowed; and
- leave be granted for the plaintiff to file, within 7 days of the date of the order, an amended statement of claim that is exhibit CKS-07 to the affidavit of Cyndel Kate Spiteri, affirmed on 8 August 2023.
- [29]As to costs, the amendments proposed to the statement of claim did not, in my view, require leave. This is because the proceeding has not been listed for trial.[4] The application is before the court because the defendant: (1) insisted leave was required to amend the statement of claim; and (2) resisted the application for leave.
- [30]The defendant’s position, in my view, was misconceived. The application caused the plaintiff to incur unnecessary costs. For this reason, I will order the defendant pay the plaintiff’s costs of the application.