Budden v Hallaran[2025] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

INTRODUCTION 

1. [1]
   The plaintiff has commenced proceedings claiming damages arising out of a motor vehicle accident. 
2. [2]
   The claim and statement of claim plead a claim by the plaintiff only against the defendant David Grant Hallaran. The plaintiff’s application seeks to ‘amend the claim’ to add a second defendant Jamie Martin Beveridge. 

THE APPLICATION 

3. [3]
   The plaintiff applies for the following orders: 

   1. Pursuant to r 375 and 377 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) the claim and statement of claim be amended to add a second defendant Jamie Martin Beveridge. 
   2. There be no order as to costs. 
4. [4]
   The plaintiff as applicant proposes a decision without oral hearing.^[1]
5. [5]
   The application included:

1. A notice in the approved form (form 49) 
2. Was accompanied by a draft order and written submissions in support.^[2]

6. [6]
   Whilst there is no formal proof of service of the application upon the defendant, the application would otherwise appear compliant. 
7. [7]
   The plaintiff had purported to file a request for consent orders (with the consent of the defendant) but that was properly refused by the registrar by notice of refusal dated 8 November 2024 consistent with the relevant practice direction.^[3]
8. [8]
   The plaintiff’s submissions and the affidavit in support also refer to the contended ‘consent’ of the defendant. The relief sought by the plaintiff is not such that the parties can consent and joinder or addition of a party requires the exercise of a discretion.^[4]

THE APPLICANT’S MATERIAL 

9. [9]
   The applicant’s material consists of the following. 

   1. Application seeking amendment of claim and statement of claim filed 13 March 2025. 
   2. Affidavit of ILL Murray (law graduate) filed 13 March 2025.  
   3. Submissions by applicant filed 13 March 2025. 
10. [10]
    Interestingly, the plaintiff has also purported to have filed a proposed amended claim on 13 March 2025. 
11. [11]
    The amended claim is purported to be endorsed by the plaintiff’s solicitors as having been amended pursuant to r 378 – UCPR. 

THE RELEVANT RULE 

12. [12]
    The plaintiff’s application and the submissions propound that the application is made pursuant to r 375 and 377 – UCPR. 
13. [13]
    Relevantly, r 375 provides: 

    1. At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application, or any other document in a proceeding in the way and on the conditions the court considers appropriate. 
14. [14]
    The power to amend includes the power to give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.^[5] 
15. [15]
    Here in seeking to amend by adding a defendant, the plaintiff is effectively seeking leave to make an amendment – the effect of which would be to include a cause of action arising after the proceeding was started, that is, a cause of action against another party. 
16. [16]
    As the claim is an originating process^[6] r 377 – UCPR is applicable. 
17. [17]
    Rule 377 relevantly provides: 

    1. An originating process may not be amended except – 

…

3. Otherwise – with leave of the court. 

18. [18]
    The circumstances where an originating process may be amended with leave of the registrar only relate to amendment of a technical matter or where the originating process has not been served.^[7] The plaintiff therefore requires leave of the court to amend the claim (as an originating process) and the purported amendment and filing of an amended claim on 13 March 2025 by the plaintiff is incompetent. 
19. [19]
    The effect of the amendment sought by the plaintiff is to add or join another person as a party in the proceeding. 
20. [20]
    Notwithstanding that the plaintiff’s application is to amend its claim and statement of claim and is stated to be under r 375 and r77, since the plaintiff also seeks to add further parties to the proceeding r 69 including substituting or removing a party and r 70 (procedure for inclusion of a party) are also relevant.^[8]

21. [21]
    Rule 69 provides: 

    1. The court may at any stage of a proceeding order that – 

…

1. (b)
   Any of the following persons be included as a party –

1. A person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding. 
2. A person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding. 

22. [22]
    In considering the plaintiff’s application to ‘amend,’ effectively to add as second defendant Jamie Martin Beveridge the requirements of r 69 and r 70 must be applied. 
23. [23]
    The plaintiff’s submissions are silent as to the requirements of r 69 and it is unable to be ascertained under which limb of r 69(1)(b) the plaintiff relies. Those two limbs relevantly are that the person may be included as a party: 
1. –Whose presence before the court is necessary to enable the court to adjudicate… or
1. –Whose presence before the court would be desirable, just, and convenient to enable the court to adjudicate.
24. [24]
    In either eventuality because joinder r 69(1) requires the exercise of a discretion, the merits of the case proposed to be advanced after joinder is a relevant consideration.^[9] 
25. [25]
    On an application for joinder, the applicant should support its application by providing the court with a draft of the pleading which it proposes to file if the order is granted. This allows the applicant to show that there is a good cause of action against the proposed defendant and that the application satisfies rules for joinder.^[10]
26. [26]
    Rule 70 provides for procedure for inclusion of a party. Relevantly, r 70 provides: 

2. Unless the court orders otherwise, an application to include a person as defendant or respondent must be served on all existing parties and on the person.

CONSIDERATION 

27. [27]
    The plaintiff’s application to amend has been prefaced on solely relying on the court’s power pursuant to r 375 and as it involves amendment of an originating process (a claim) requiring the courts leave pursuant to r 377.  
28. [28]
    The plaintiff’s submissions and the supporting affidavit material do not address any of the consideration or requirements of r 69, specifically by providing any evidentiary foundation in respect of the involvement or proposed cause of action against the party proposed to be joined, Jamie Martin Beveridge. 
29. [29]
    The plaintiff has provided a proposed amended statement of claim, but the affidavit material (the purported evidentiary foundation) does not provide any evidence in respect of the matters sought to be advanced in the proposed amended pleading. 
30. [30]
    The plaintiff it appears has also failed to serve a copy of the application upon the person sought to be joined, Jamie Martin Beveridge. 
31. [31]
    The requirements of r 70(2) are proscriptive, unless on application by the plaintiff orders were made otherwise, this present application must be served on the person sought to be joined. 
32. [32]
    The plaintiff’s application must fail both as a result of noncompliance with r 70(2) but also as there is no material permitting an assessment of the merits of the proposed case to be advanced after joinder. 

DISPOSITION 

33. [33]
    The plaintiff’s application must fail and be dismissed. 
34. [34]
    I order: 

    1. The plaintiff’s application be dismissed. 
    2. There be no order as to costs.