Pacific National Pty Ltd v Aurizon Network Pty Ltd
[2016] QSC 218
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- Unreported Judgment
- Pacific National Pty Ltd v Aurizon Network Pty Ltd[2016] QSC 218
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Pacific National Pty Ltd v Aurizon Network Pty Ltd[2016] QSC 218
Pacific National Pty Ltd v Aurizon Network Pty Ltd[2016] QSC 218
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
DELIVERED ON: | 12 September 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Delivered Ex Tempore on 12 September 2014 |
JUDGE: | Jackson J |
ORDER: | The order of the court is that:
|
CATCHWORDS: | LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – where the defendant managed rail transport infrastructure and the plaintiff contracted to access the network – where there was damage to the track after flooding rains and the plaintiff’s train was derailed – where the plaintiff’s pleaded causes of action were breach of contract or negligence by, inter alia, failing to properly and safely maintain the network and ensure safe management – where the plaintiff applied for leave to amend the statement of claim after the limitation period expired – where new causes of action alleged breaches of contract or negligence by, inter alia, failing to inspect or assess the track on particular days and prior to the wet season – where the new causes of action alleged that a direction by the defendant to proceed on the track was misleading or deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth) – whether the new causes of action arose out of the same facts or substantially the same facts Civil Proceedings Act 2011 (Qld), s 16 Limitation of Actions Act 1974 (Qld), s 10(1)(a) Rules of the Supreme Court 1900 (Qld), O 32 r 1(5) Trade Practices Act 1974 (Cth), s 52, s 82 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, applied Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited Gould v Johnson (1702) 2 Salk 422; 91 ER 367, applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, applied Weldon v Neal (1887) 19 QBD 394, cited |
COUNSEL: | R Anderson QC for the plaintiff R Derrington QC and D Butler for the defendant |
SOLICITORS: | Schweikert Harris for the plaintiff McInnes Wilson Lawyers for the defendant |
- Jackson J: On 1 and 2 February 2010, there were flooding rains in central Queensland, including on the Blackwater railway line from Wycarbah to Warren.
- At approximately 1:45 am at a point 33.092 kilometres along that line, a train owned and operated by the plaintiff was derailed and damaged. The loss suffered as a result of the damage is alleged to have been about $4 million. The defendant was the manager of the rail network infrastructure on which the train was running at the time of the derailment.
- On 26 August 2014, the plaintiff started this proceeding by claim and statement of claim. The claim is for damages for breach of contract or negligence.
- On 8 July 2016, the plaintiff provided a draft amended claim and statement of claim to the defendant. The plaintiff now applies for leave to amend the claim and statement of claim in accordance with the draft.
- As will appear, the amendments would add new causes of action after expiry of the relevant periods of limitation. Accordingly, r 376 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) applies and the plaintiff requires leave to make the amendments.
- The defendant opposes the application on the successive grounds that each new cause of action does not arise 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 and that as a matter of discretion the orders sought should not be granted.
Relevant periods of limitation
- For each new cause of action of breach of contract the relevant limitation period is provided under the Limitation of Actions Act 1974 (Qld), s 10(1)(a), that an action founded on a simple contract shall not be brought after the expiration of six years from the date on which the cause of action arose.
- A cause of action for damages for breach of contract arises on the date of the breach: see Gould v Johnson (1702) 2 Salk 422; 91 ER 367. Accordingly the relevant period of limitation for each new cause of action for breach of contract expired on 3 February 2016.
- For each new cause of action for damages for the tort of negligence, the relevant limitation period is also provided under the Limitation of Actions Act 1974 (Qld), s 10(1)(a), that an action founded on a tort shall not be brought after expiration of six years from the date on which the cause of action arose.
- A cause of action for damages for the tort of negligence arises when the damage is first suffered: see Commonwealth v Cornwell (2007) 229 CLR 519 at [5]. Accordingly the relevant period of limitation for each new cause of action of damages for negligence expired on 3 February 2016.
- For the new cause of action for damages under s 82 of the Trade Practices Act 1974 (Cth) (“TPA”) for contravention of s 52 of the TPA the relevant period of limitation is that under s 82(2), that an action may be commenced at any time within six years after the day on which the cause of action that related to the conduct accrued.
- A cause of action for damages under s 82 accrues when loss or damage by the contravention is first suffered: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
- Accordingly, the relevant period of limitation for the new cause of action for damages under s 82 expired on 3 February 2016.
- It is uncontroversial therefore that each new cause of action is one to which r 376 applies.
Rule 376
- Rule 376 replaced former O 32, r 1(5) of the Rules of the Supreme Court 1900 (Qld). That rule was introduced in December 1965 to confer power on the court to permit an amendment after the relevant period of limitation had expired.
- Rule 376 provides in part:
“376 Amendment after limitation period
(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.
(2)…
(3)…
(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(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.”
- Rule 376 is now supported by s 16 of the Civil Proceedings Act 2011 (Qld) as follows:
“16 Amendment for new cause of action or party
(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)the 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 proceeding was started, has ended.
(3)Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.
(4)This section applies despite the Limitation of Actions Act 1974.”
- There has been such a provision in force since 1998 when s 81 of the Supreme Court of Queensland Act 1991 (Qld) was enacted. The mischief or need for such a rule as r 376 stems from two circumstances. First, an amendment to a statement of claim operates in effect retrospectively, so that an amendment made after a proceeding is issued is treated as having been made from the date of issue or filing. Second, because an amendment so made would have the effect of permitting a new cause of action to be brought after the period of limitation has expired, an amendment of that kind could not be made if opposed. This was known as the rule in Weldon v Neal (1887) 19 QBD 394.
- Since 1965, but more particularly since 1999 under the form of r 376, there have been made cases dealing with an amendment to add a new cause of action after expiry of the relevant period of limitation.
- It should not be forgotten, however, that the rule is facultative and has as its remedial purpose to permit amendment which would have been prohibited under the rule in Weldon v Neal. Nor should it be forgotten that where the conditions precedent to the application of the rule are met the court is granted an unfettered discretion to permit an amendment. That discretion is to be exercised having regard to the philosophy of the UCPR in r 5.
- Nevertheless r 376(4) applies only if 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. That requirement is a jurisdictional fact which must be proved before the court may give leave to make an amendment to add a new cause of action.
- Some of the recent cases have focused on a close identification of the material facts constituting the new cause of action on the one hand and the old cause of action for which relief has already been claimed on the other hand. This is an appropriate analysis, but I would make one qualification. If the definition of a cause of action is the material facts necessary to found the relief claimed, there is a textual difficulty or imprecision in the language of r 376.
- The difficulty is that by definition any new cause of action must require some different material fact or facts. Otherwise it is the same cause of action as the old cause of action. However, r 376 expressly contemplates that the new cause of action “arises out of [either] the same facts or substantially the same facts” as the old cause of action for which relief has already been claimed. Logically the new cause of action cannot arise out of the same material facts.
- In my view, this inexactness must also inform the alternative requirement that the new cause of action must arise “out of … substantially the same facts”. A substantially the same test is not a bright-line test. A survey of the cases that have turned on it reinforces that obvious point. Many cases have referred to the metaphorical phrase adopted by Justice Thomas J in 1990 in Draney v Barry [2002] 1 Qd R 145, that the new cause of action must arise out of “substantially the same story” as that which would be told to support the original cause of action. The wider context in which that phrase appears bears repeating. Justice Thomas said at 164 [57]:
“I do not think that ‘substantially the same facts’ should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under r 376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.” (footnote omitted)
Discretion
- The discretion to make an order under r 376(4) is exercisable when “the court considers it appropriate”.
- There are many potential factors that may inform an exercise of discretion. In accordance with the case law, relevant considerations that must be taken into account are the reasons for and any prejudice to the defendant from the delay. In these respects the exercise of discretion under r 376 bears some similarities to the powers to renew a claim under r 24 or to make an order to take a step after two years under r 389(2), or to dismiss a proceeding for non-compliance with an order under r 374(5), or to dismiss a proceeding for want of prosecution under the inherent power when the relevant period of limitation for a cause of action has expired.
- As well, exercise of the discretion is informed by the philosophy of r 5 and any breach by the plaintiff of the implied undertaking to the court to proceed in an expeditious way. It is also informed, in general, by the process of case flow management under Practice Direction 17 of 2012.
- However, I do not accept that an explanation for the delay is jurisdictional, in the sense that without one an application to amend under r 376(4) must be dismissed. It depends on the circumstances. A party without any explanation for delay may seek to amend in a way that cannot cause any further delay or any prejudice to the defendant in circumstances which do not suggest deliberate conduct in failing to have alleged the additional material facts for the new cause of action at an earlier time. I do not intend by that description to purport to identify a particular exception to a general rule. It can be counterproductive to ossify a generally expressed discretion with rules as to what are necessary preconditions for the exercise of the discretion.
The story which would have to be told on the old causes of action
- The old causes of action in this case were for damages for breach of contract or negligence. The summary below simplifies some aspects of the allegations of those causes of action appearing in the statement of claim but explains the story that would have to be told at trial.
- The defendant was an accredited railway-manager of infrastructure comprising rail transport infrastructure within the meaning of the Transport Infrastructure Act 1994 (Qld).
- On 5 October 2009, the plaintiff entered into a contract with the defendant providing for the plaintiff to have access to the defendant’s network.
- Within the meaning of the contract:
- “track” meant inter alia the rail, ballast, sleepers and associated fittings;
- “train” meant any configuration of rolling stock which in turn meant inter alia locomotives and carriages;
- “train movement” was the operation of a train on the infrastructure by, inter alia, the plaintiff;
- “train service” meant, inter alia, the running of a train between specified origins and destinations;
- “train control” meant the scheduling and control of all train movements and of all other rolling stock on the infrastructure;
- “network management principles” meant the principles for the provision of train control and scheduling as specified in a schedule to the contract;
- “interface risk management plan” meant a plan specified in a schedule to the contract;
- “QR network train control direction” meant any instruction or direction issued by QR network relating to train movements.
- Express terms of the contract included that:
- the defendant was to exercise train control by the issue of QR network train control directions;
- in exercising train control the defendant was to have regard to the safe conduct of rail operations;
- to the extent relevant, the defendant was to observe and comply with the network management principles and the interface risk management plan;
- the network management principles provided that the fundamental object of train control was to facilitate the safe running of train services;
- the defendant was to ensure operational safety by compliance with, inter alia, the Interface Risk Management Plan;
- the defendant was responsible for the management of the network and would retain control over all activities thereon; and
- the defendant must carry out maintenance work on the network consistent with the rolling stock interface standards.
- As previously stated, at or about 1:45 am on 2 February 2010 the plaintiff’s train derailed.
- At that point the track was constructed over a culvert.
- At that time there was severe weather including excessive rainfall. The ballast and top of track formation had washed out.
- The derailment was caused by the washout. The derailment was also caused by:
- failure of the defendant to properly, effectively and safely maintain the infrastructure such that it satisfied all relevant standards, including:
- upgrading the culvert to withstand a one in 50 year flood;
- upgrading the top of track formation to withstand a one in 100 year flood.
- failure by the defendant to implement recommendations in relation to monitoring, maintenance, implementation of engineering standards, etcetera, as identified in a report commissioned by the defendant in 2008 or 2009;
- failure by the defendant to have sufficient or any monitoring facilities in place in the vicinity of the derailment;
- inadequate reliance by the defendant on external weather data; and
- failure to ensure safe management of the network by allowing the plaintiff’s train to continue to operate.
- The washout arose because of the defendant’s breaches of contract by those failures.
- The defendant also owed a duty of care to the plaintiff because:
- it was the railway manager;
- of the terms of the contract;
- it had assumed responsibility for maintaining and repairing the network;
- it had assumed responsibility for the safe exercise of train control pursuant to the network management principles;
- the defendant that the plaintiff relied on it to maintain and repair the network; and
- the defendant knew that the plaintiff relied on it to safely exercise train control pursuant to the network management principles.
- The duty of care was to:
- properly and safely maintain and repair the network;
- safely exercise train control pursuant to network management principles; and
- take other precautions against the risk of the plaintiff suffering a loss through the foreseeable risk of washout.
- The defendant breached the duty of care and was negligent in each respect previously outlined as its failures.
- By reason of the defendant’s breaches of contract or negligence the plaintiff suffered loss or damage in the sum of about $4 million.
New causes of action for breach of contract
- Again, the summary below simplifies some parts of the old causes of action and the proposed new causes of action for breach of contract. The references to paragraph numbers are to the proposed amended statement of claim for the new causes of action and to the existing statement of claim for the old causes of action.
- The old causes of action included breaches of contract that may have been a breach of cl 6.2 of the contract. The new breach of contract causes of action are all alleged to be breaches of cl 6.2(a). They are separated into three groups.
First group of new causes of action for breach of contract – CETS
- First, par 18A alleges that there were breaches of obligations pursuant to cl 6.2(a) relying, inter alia, on paras 11A to 11K. The breaches comprise alleged failures by the defendant to inspect or assess the track between 8:06 pm on 1 February 2010 and 1:45 am on 2 February 2010, to restrict operations by the plaintiff and to give a direction to stow the plaintiff’s train or to cease movements on the line.
- The obligations pursuant to cl 6.2(a) would appear to be those alleged in paras 11C, 11E, 11G, 11I and 11K, but it is not clear which of the alleged breaches relates to which of the alleged obligations. Each of those paragraphs alleges an obligation under a document given the acronym CETS (for Civil Engineering Track Standards). That was incorporated into another document given the acronym IRMP (for Interface Risk Management Plan) that was in turn incorporated into the contract by cl 6.2(a).
- The old causes of action for breach of contract are opaquely pleaded. Paragraph 20 alleges that the washout that caused the derailment was caused by the defendant’s breach of contract but it does not identify either what was the breach of what term or the obligation that was breached. In addition, par 19 alleges a number of failures by the defendant that could be breaches of contract as I described in the old causes of action above, but there is no way of knowing exactly what term is alleged to have been breached.
- An example is that par 19(e) alleges that the derailment was caused by the defendant’s failure to ensure the safe management of the line as part of the network by allowing the plaintiff’s train to continue to operate. Paragraph 7(b) alleges that it was an express term that the defendant was to have regard to the safe conduct of rail operations in exercising train control. It is not clear what paragraphs of the alleged terms and implied terms are also alleged to have been breached by the facts alleged in par 19(e). But these breaches of contract are similar to the subject matters of paras 18A(c) and (d) of the new contract causes of action.
- So far, the relevant paragraphs of the old causes of action would not have included par 11 that alleges that it was an express term of the contract that the defendant would carry out maintenance work on the network, which was a term alleged in reliance on cl 6.2.
- The plaintiff submits that the allegations in par 18A of the new causes of action that the defendant failed to inspect or assess the track were substantially the same as the allegation in the old causes of action in par 19(a) that the defendant failed to maintain the infrastructure such that it satisfied all relevant standards. The plaintiff submits that connection should be made because par 5(d) of the old causes of action alleges that “Maintenance Work” in the contract is defined to include any inspections or investigations of the infrastructure.
- The plaintiff also submits that this conclusion is supported by par 11(a) of the old causes of action that it was an express term of the contract that the defendant must carry out “Maintenance Work” on the network so that the infrastructure is consistent with the “Rolling Stock Interface Standards”. It was further submitted that the reference to those standards should be construed to mean those standards as agreed as part of the interface risk management included in the Interface Risk Management Plan.
- I reject those submissions because the old causes of action nowhere allege or identify a breach of contract in failing to inspect or assess the line or track on 1 February 2016 or 2 February 2016.
- This first group of new causes of action for breach of contract illustrates how difficult it is to expose the permutations and combinations of both the new causes of action and the old causes of action for breach of contract.
- Nevertheless, in my view it is clear enough that the obligations pursuant to cl 6.2(a) of the contract alleged to have been breached by the new causes of action were not identified as breaches of contract by reference to that clause in the allegations in the old causes of action. Further, the specific breaches alleged by failure to inspect or assess the line or track between the alleged times form no part of the old causes of action.
Second group of new causes of action for breach of contract – CESS
- Paragraph 18C alleges that there were breaches of obligations pursuant to clause 6.2(a) relying on, inter alia, paras 11Q to 11R. In substance, the breaches are the same failures to inspect, assess or restrict operations or give a direction as those alleged in par 18A.
- For this group of new causes of action the obligations pursuant to cl 6.2(a) would appear to be those alleged in par 11R. That paragraph alleges an obligation under a document given the acronym CESS (for Civil Engineering Structure Standards) that was incorporated into the IRMP. It will be recalled that it is alleged that the IRMP was in turn incorporated into the contract by cl 6.2(a).
- The analysis previously made for the first group of new causes of action for breach of contract applies to this second group as well.
Third group of new causes of action for breach of contract – CESS 2
- Third, par 18E alleges that there were breaches of obligations pursuant to cl 6.2(a) relying on, inter alia, paras 11L to 11P and 11S to 11W. The breaches comprise a failure to inspect the culverts on the line prior to the wet season and to take appropriate action to clear impediments to the free flow of water through the culvert where the derailment occurred.
- As well, par 19G alleges that there were breaches of obligations pursuant to cl 6.2(a) relying, inter alia, on paras 11Q to 11W. The breaches are in substance the same as for par 18E.
- For this group of new causes of action the obligations pursuant to cl 6.2(a) would appear to be those alleged in paras 11P, 11R, 11T and 11W that allege a number of distinct and overlapping obligations as to inspection, keeping the culvert free of impediments to the free flow of water and applying restrictions to train movements.
- Mutatis mutandis, the analysis for the first group of new causes of action for breach of contract applies to this group of new causes of action for breach of contract as well.
- All the new causes of action for breach of contract allege that the breach of contract caused the damage because the train would not have been derailed and allege that the amount of the loss was the sum of about $4 million as claimed for the old causes of action.
- It is unnecessary to go further to conclude that, generally speaking, the new causes of action for breach of contract do not arise out of substantially the same facts as the old causes of action. There is a common story underlying much of the proposed addition, but the new material facts go beyond what would be described as being the same in substance as the old causes of action.
New causes of action for negligence
- The summary below simplifies some of the allegations made for the old causes of action and the new causes of action for damages for negligence.
- The old causes of action for negligence hinged upon three alleged duties of care and the breaches thereof, the duties being to:
- properly and safely maintain and repair the network;
- safely exercise train control pursuant to network management principles; and
- take other precautions against the risk of the plaintiff suffering a loss through the foreseeable risk of washout.
- The new causes of action for negligence are broken into four groups of alleged duties of care and breaches of those duties.
First group of new causes of action for negligence
- Paragraph 25M alleges that the defendant breached what is termed the first duty of care by:
- failing to inspect the track between 8:06 pm on 1 February 2010 and 1:45 pm on 2 February 2010;
- failing to assess the track in that period;
- failing to restrict operations; and
- failing to give a QR network train control direction to stow the train or to cease train movements.
- Paragraph 25M relies on par 25A and alleges breaches of the duties of care alleged in par 25I, being duties to:
- undertake scheduled and unscheduled inspections of the track and culvert;
- clear impediments from structures;
- obtain relevant information relating to the conditions affecting the safe operation of the track and safe train movements;
- make an assessment of the track; and
- take appropriate action to stop operations where the assessment identified a risk to safe train movements.
Second group of new causes of action for negligence
- Paragraph 25O alleges that the defendant breached what is termed the second duty of care by:
- not knowing the conditions affecting the safe operations of the track and train movements; and
- deciding to stow its trains but not giving a QR network train control direction to stow the plaintiff’s train or to cease train movements.
- Paragraph 25O relies on paras 25A to 25H. Those paragraphs allege clauses of the contract, the exclusive responsibility for and the power of the defendant under those clauses to control trains on the line and the corresponding obligation of the plaintiff to comply with directions. The responsibility is alleged to have included line inspections, clearing of impediments from structures, obtaining information as to conditions affecting safe operation, assessment of the track and taking appropriate action to restrict operations. The plaintiff is alleged to have had no right or power to control any of the activities on the track, to have relied on the defendant to take reasonable care, to have lacked the authority to undertake inspections of the track or culvert or to clear impediments of the culvert and to have been vulnerable to loss or damage if the defendant did not exercise reasonable care.
- Paragraph 25O alleges breaches of the duty alleged in par 25J, being a duty to take appropriate action to stop operations of the plaintiff where the defendant:
- did not know the conditions affecting the safe operation of the track, including safe train movements; and
- had decided to stow all its own trains on the line.
Third group of new causes of action for negligence
- Paragraph 25Q alleges that the defendant breached what is termed the third duty of care by:
- not knowing the conditions affecting the safe operations of the track and train movements;
- being unable to make an assessment of the track to determine its condition and deterioration; and
- deciding to stow its own trains but not giving a QR network train control direction to stow the plaintiff’s train or to cease train movements.
- Paragraph 25Q relies on paras 25A to 25H. As discussed above in relation to par 25O, it alleges breach of the duty alleged in par 25K, being a duty to take appropriate action to stop operations of the plaintiff’s train in similar terms to par 25J.
Fourth group of new causes of action for negligence
- Paragraph 25S alleges that that the defendant breached what is terms the fourth duty of care by not rebuilding the culvert to:
- have a minimum operational capacity to withstand a flood event greater than a Q50 flood event;
- have the capacity to withstand a Q100 flood event without being overtopped by water; and
- comply with the design parameters alleged in par 13E.
- Paragraph 25S alleges a breach of the duty alleged in par 25L, being a duty when rebuilding the culvert to ensure that it complied with the standards pleaded in paras 13E and 13F.
- All the new causes of action for negligence allege that the breach of duty caused the damage because the train would not have been derailed and allege that the amount of the loss was in the sum of about $4 million as claimed for the old causes of action.
- In my view, generally speaking, the new causes of action for negligence do not arise out of substantially the same facts as the old causes of action.
- As it was for the new causes of action for breach of contract, there is a common story underlying much of the proposed additions. Some of the allegations relating to the failure to give directions to stow the plaintiff’s train or to cease movements might be treated as particulars of the breach of duty of care alleged in par 19(e) of the old causes of action by failure to ensure the safe management of the network by allowing the plaintiff’s train to continue on the network and as arising out of substantially those same facts.
- But that does not apply to the allegations about failure to inspect or assess the line during the specific time periods alleged in the new causes of action. Similarly, the addition of the further allegations in par 25S(c) as to the QR Design Parameters which the rebuilding of the culvert was required to meet does not clearly fit within the ambit of a new cause of action arising out of substantially the same facts as alleged in par 19(a) of the old cause of action.
- The plaintiff submits that the specific duties of care alleged in par 25I of the new causes of action were not new material facts because of the introductory words to the specific duties alleged as the first duty that the defendant owed a duty to the plaintiff to exercise reasonable care to avoid reasonably foreseeable direct loss and damage. The plaintiff submits that the specific duties alleged in paragraph 25I are particulars of the general allegation of a duty of care in par 23(c) of the old causes of action.
- I reject that submission. In my view, for the purposes of whether a new cause of action arises out of substantially the same facts, it does not assist the plaintiff to submit there is an allegation of a general duty wide enough to cover a myriad of different specific duties that would serve to identify further material facts required to be pleaded and proved for a new cause of action and negligence. To do so does not assist the plaintiff in demonstrating that a new cause of action for negligence for breach of a specific duty arises out of substantially the same facts as the old cause of action where only a breach of the general duty is alleged and in a manner that does not allege the facts relevant to the specific duty raised by the new cause of action.
- In my view, the new material facts for the new causes of action in negligence go well beyond what would be described as being the same in substance as the old causes of action.
New cause of action under the TPA
- The old causes of action did not include any cause of action for damages under s 82 of the TPA.
- The material facts for a cause of action for damages under s 82 for contravention of s 52 involve a two-part analysis. First, it is necessary to allege a contravention of s 52. Commonly that involves allegations that:
- a corporation;
- in trade or commerce;
- engaged in conduct; and
- that conduct was misleading or deceptive or likely to mislead or deceive.
- There are other aspects of those allegations that would be relevant to this case. They may be put to one side. The second part of the analysis involves allegations that:
- the plaintiff is a person;
- who suffered loss or damage by conduct that was done in contravention of s 52; and
- the defendant was the contravener or involved in the contravention.
- As to contravention of s 52, the new TPA cause of action in this case is alleged in an internally repetitive way. But in substance it is that the defendant was a corporation that in trade or commerce engaged in conduct that was an express or implied representation conveyed by the defendant’s direction to proceed that it was safe to travel on the track, and that the representation was made without reasonable grounds, and was misleading or deceptive or likely to mislead or deceive. The absence of reasonable grounds alleged is based on the defendant’s failure to inspect, assess or know the condition of the track and its decision not to run its own trains on the line.
- As to s 82, the new TPA cause of action alleged is that the plaintiff suffered loss or damage by the contravening conduct because it would not have entered into or continued on the line or suffered the derailment but for the misleading or deceptive conduct. The amount of the loss claimed is the same amount of about $4 million claimed for the old causes of action.
- In my view, the new TPA cause of action does not arise out of substantially the same facts as the old causes of action. That the defendant is a corporation within the meaning of s 52 because it is a trading corporation is a new material fact, as is the allegation that the contravening conduct was engaged in in trade or commerce. However, I put those to one side as not necessarily precluding a finding that the TPA claim arises out of substantially the same facts.
- The defendant’s direction authorising the plaintiff’s train to proceed was a representation that it was safe to proceed is a new material fact. Second, that the representation was conduct in trade or commerce is a new material fact. Third, that the conduct was misleading or deceptive or likely to mislead or deceive because there were no reasonable grounds for making it is a new material fact. It is unnecessary to go further, although as I’ve already said, the problem does not lie necessarily in whether the conduct was engaged in in trade or commerce.
- Although it is not uncommon for a negligence claim to be cast in the alternative as a contravention of s 52 of the TPA, that does not mean that the proposed TPA claim arises out of substantially the same facts as alleged in the old causes of action. The substance of the new TPA cause of action proceeds from the positive allegation that the direction authorising the plaintiff’s train to proceed was made. Although par 13OO alleges that the direction was a clear signal comprising Wycarbah signals 13 and 18 and Warren signal 14, I was informed during argument that the direction relied on is a verbal instruction given by an employee of the defendant. The old causes of action for negligence or breaches of contract did not refer to a positive direction. It follows that the representations alleged (to have been expressly or impliedly made by the direction), that the plaintiff alleges were misleading or deceptive, were not referred to either in the old causes of action.
- In my view, the new TPA cause of action does not arise out of substantially the same facts as the old causes of action.
Conclusion
- Since the new causes of action in general do not arise out of substantially the same facts as the old causes of action, in my view the application must be dismissed. The order I propose is that the application is dismissed.
- The order of the court is that:
(1)The application is dismissed.
(2)The plaintiff pay the defendant’s costs of the application.