Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 10 – Court supervision
- Part 1--Directions
- [366] Application for directions
- [367] Directions
- [368] Proceeding already being managed by the court
- [369] Decision in proceeding
- [370] Failure to attend
- [371] Effect of failure to comply with rules
- [372] Application because of failure to comply with rules
- [373] Incorrect originating process
- [374] Failure to comply with order
- [375] Power to amend
- [376] Amendment after limitation period
- [377] Amendment of originating process
- [378] Amendment before request for trial date
- [379] Disallowance of amendment
- [380] Amendment after request for trial date
- [381] Failure to amend after order
- [382] Procedure for amending
- [383] Who is required to make amendment
- [384] Serving amendments
- [385] Pleading to amendment
- [386] Costs
- [387] When amendment takes effect
- [388] Mistakes in orders or certificates
- Division 1--Amendment generally
- Division 2--Procedural matters
- Division 3--Consequences of amendment
- Division 4--Amending orders or certificates
[366] Application for directions go to top
Rule 366 confers on the Court a very wide discretion to make orders and give directions about the expeditious conduct of proceedings: Jones v Millward [2006] QSC 92, [8] (Jones J).
Pursuant to rr 366 and 367, a Court may revisit on its own motion a ruling made as to the admissibility of evidence during a trial and make any necessary directions in respect of the earlier ruling: Barker v Linklater [2007] QSC 125, [121]-[126] (Lyons J).
[367] Directions go to top
The philosophy of the rules, to facilitate the just and expeditious resolution of disputes and avoid undue delay, expense and technicality is reflected in r 367(1). Under r 367(1) the court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of the rules: Green v Pearson [2014] QCA 110, [5]-[6] (Jackson J, Morrison and Fraser JJA agreeing).
Rule 367 provides a power in the court that is supplementary to the court’s “inherent power to control and supervise proceedings [which] includes the power to prevent injustice”: Owen v Menzies [2010] QCA 137, p.5 (Muir JA, Holmes JA and McMurdo P agreeing), citing Hamilton v Oades (1989) 166 CLR 486, 502 and R v Pettigrew [1997] 1 Qd R 601, 610.
Rule 367 provides the court with power to permit a plaintiff to discontinue or withdraw an application in a proceeding if to do so is in the interests of justice, and to impose any such conditions which are necessary to ensure the interests of justice: Kennedy v Griffiths [2014] QSC 43, [32] (Boddice J).
Pursuant to rr 366 and 367 there is power in the Court on its own motion to revisit its own ruling made as to the admissibility of evidence during a trial and to make further directions: Barker v Linklater [2007] QSC 125, [121]-[126] (Lyons J).
Rule 367 provides a means by which a court is able, where appropriate, to exercise discretionary control over late amendments: Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA 271, [20]-[21] (Keane JA, McPherson and Williams JJA agreeing).
Under r 367, the Court may make an order renewing an originating process so that it might be served upon a statutory insurer, if it is in the interests of justice to do so. In such a case, the Court should also have regard to the provisions of r 24: Gillies v Dibbetts [2001] 1 Qd R 596; [2000] QCA 156, [20] (Wilson J, McPherson JA and Thomas JA agreeing).
Rule 367 is a sufficient source of power to order the plaintiff in a proceeding to make disclosure to the defendant by counterclaim: Harris v Australand [2010] QSC 385, [4] (Margaret Wilson J).
Rule 367 provides a sufficient source of power for a court to make any order about the conduct of a proceeding. This extends to the making of an order dispensing with a jury where the interests of justice require it: Coronis v Jilt Pty Ltd [2013] 1 Qd R 104, [45] (McMurdo P), [76] (Chesterman JA), [80] (Margaret Wilson AJA).
Pursuant to r 367, the court can make a direction limiting the disclosure which is to be made in compliance with a notice of non-party disclosure if there is good reason to do so, whether or not r 245(2) [objection to disclosure by person affected by notice] is engaged: Cassimatis v Axis Specialty Europe Ltd [2013] QSC 237, [11] (Jackson J).
Rule 367 provides a source of power for a court to grant leave to adduce further evidence on an application after the conclusion of the hearing but before judgment has been delivered: King v Gunthorpe [2018] QSC 1 (Burns J) at [9].
Rule 367(3) - Direction that evidence be given by affidavit
There is a widely held view, although not universally or inflexibly applied, that a direction under r 367(3)(d) that evidence in chief be given by affidavit should not be made where the witness’s credibility is in issue: Plumley v Moroney [2014] QSC 3, [51] (Margaret Wilson J).
There is no necessary inconsistency between the requirements in ss 92 and 98 of the Evidence Act 1977 (Qld) that the maker of a statement contained in a document be called as a witness in the proceeding and the ability to reject that evidence under s98, and the power in r 367(3) to require evidence to be given by affidavit and the power in r 439(5) in the Court to dispense with the attendance for cross-examination of a person making an affidavit or to direct that an affidavit be used without the person making the affidavit being cross-examined as to the affidavit: Australian Securities and Investments Commission v Managed Investments Pty Ltd (No 7) [2014] QSC 72, [18] (Douglas J).
[368] Proceeding already being managed by the court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[369] Decision in proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[370] Failure to attend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[371] Effect of failure to comply with rules go to top
The effect of r 371 is that where anything is done or left undone contrary to the requirements of the UCPR, such a failure to comply with the UCPR should be treated as an irregularity and should not nullify the proceedings or any step taken in them: Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173; [2003] QCA 218, [21] (McMurdo J, McPherson JA and Holmes J agreeing).
Where there has been non-compliance with the UCPR, the non-complying document or step is not ineffectual, in the absence of any additional complication, merely because the UCPR have not been complied with: Collie v Edmunds [2006] QSC 343, [5] (Mackenzie J), citing Bates v Queensland Newspapers Pty Ltd [2001] QSC 83 and New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228.
Service of stale process is not a nullity, but an irregularity. The Court may waive the irregularity under r 371, but should do so only if it is proper to renew the process: Gillies v Dibbetts [2001] 1 Qd R 596 2000] QCA 156, [22] (Wilson J, Thomas JA and McPherson JA agreeing).
There is more than a mere procedural irregularity under r 371 where a party has been denied a hearing. For this reason, r 371 will not provide a basis for refusing to set aside an order where a party affected is denied the right to be heard: Greig & Duff as Liquidators of Australian Building Industries Pty Ltd (in liq) v Australian Building Industries Pty Ltd (in liq); Greig & Duff as Liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd [2004] 2 Qd R 17, [40]-[41] (Williams JA, Jerrard JA agreeing).
In an appropriate case, the Court’s broad powers under rr 367 and 371 read with r 5, to make orders inconsistent with the procedural rules and/or in the face of non-compliance with the rules, may allow it to hear a contempt application notwithstanding the absence of a penal notice under r 665(3): Costello v Courtney [2001] 1 Qd R 481; [2000] QSC 67, [12] (Wilson J).
An attempt to use a subpoena to obtain non-party disclosure will not be regarded as a mere procedural irregularity: Leighton Contractors Pty Ltd v Western Metal Resources Ltd [2001] 1 Qd R 261; [2000] QSC 27, [24] (Mackenzie J).
The filing of an amended claim joining a party, without an appropriate order for joinder, is an irregularity within the auspice of r 371 and remains valid unless the Court orders otherwise: New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228, [16] (Wilson J), citing Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 and Bates v Queensland Newspapers Pty Ltd [2001] QSC 083.
If there is a withdrawal of an admission without leave, it should be treated as an irregularity for the purpose of r 371 and not as an ineffectual step: Collie v Edmunds [2006] QSC 343, [5] (Mackenzie J).
Failure to comply with r 243(2) by not serving persons affected by a notice of non-party disclosure prior to service on the respondent is an irregularity within r 371(1): Westsand Pty Ltd v Johnson (Unreported, Supreme Court of Queensland, 15 November 1999), [6] (Wilson J).
The failure to obtain leave under r 389(2) before taking a step in the proceedings after a period of delay is an irregularity which does not render the step a nullity: Ure v Robertson [2017] Qd R 566 (CA) at [32].
The provisions of r 371 apply to proceedings in the Court of Appeal: MNSBJ Pty Ltd v Downing [2017] QCA 141 (Morrison JA) at [27].
The use of r 371 in an application to dismiss for want of prosecution
The combination of rr 5, 280 and 371 re-affirm the Supreme Court’s longstanding powers of dismissal. Although the Court’s inherent power to dismiss a proceeding for want of prosecution remains, these rules provide a sufficient starting point in the determination of such applications: Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176, [30] (Thomas JA, de Jersey CJ and Mackenzie J agreeing).
The factors identified by McPherson JA in Cooper v Hopgood & Ganim [1999] 2 Qd R 113, that prior to the commencement of the rules had been identified as potentially relevant to the exercise of the power to dismiss a proceeding for want of prosecution, provide continuing guidance in exercising this power: Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176, [27] (Thomas JA, de Jersey CJ and Mackenzie J agreeing). To that end, in Cooper, McPherson JA said (at 124):
“Birkett v James [[1978] AC 297] suggests only some of the factors relevant in exercising the discretion, which include matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the probable impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.”
[372] Application because of failure to comply with rules go to top
Where an application is made pursuant to r 371 on the basis there has been a withdrawal of an admission by virtue of an amendment, r 372 requires more focus than a mere assertion that a series of pleadings and other documents, if read carefully, will reveal an ultimate conclusion that an admission has been withdrawn. There should, at the least, be an attempt to identify in the application what is said to be the substance of the admission made and how what is pleaded by amendment differs from it to an extent that constitutes a withdrawal of the admission: Collie v Edmunds [2006] QSC 343, [3] (Mackenzie J).
[373] Incorrect originating process go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[374] Failure to comply with order go to top
The exercise of discretion conferred by r 374 must take account of the purpose of the rules as expressed in r 5. The rule must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim: Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260, [16] (Applegarth J, McMurdo P and Chesterman JA agreeing), citing Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, 396.
As to the exercise of the Court’s discretion, in Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260, Applegarth J said (at [17]):
“In considering the exercise of the discretionary power conferred under UCPR r 374 to terminate a proceeding account must be taken of the ‘need for reasonable access to the courts’. The interests of justice also require account to be taken of the financial and personal strain imposed on litigants, witnesses and other parties who are affected by a party’s failure to comply with a court order without adequate explanation or justification. The costs associated with bringing applications arising from non-compliance with court orders cannot always be recovered in full or at all by a costs order. In this matter the respondent was put to substantial costs associated with a number of hearings before judges of the District Court in 2009. For reasons to be addressed, there is no assurance that the respondent will recover those costs from the appellant, and recovery of them out of the estate diminishes the amount that is available for the benefit of its sole beneficiary.” (citations omitted)
See also Klerk v Seirocki [2014] QCA 355, [14] (Fraser JA, Morrison JA and North J agreeing).
There is no requirement that an applicant for dismissal under a rule such as r 374 must prove prejudice, although its existence is likely to be significant: Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260, [42] (Applegarth J, McMurdo P and Chesterman JA agreeing), citing Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, 396.
Where an order is made pursuant to r 374(5)(a) and on notice to the respondents in a proceeding, the order may only be set aside on appeal under r 374(8)(b): Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, [28] (Muir JA).
In circumstances where there is no serious delay attributable to the defendant and where there is some doubt about whether or not the jurisdictional basis for the granting of relief existed, it would be an extraordinary course to give judgment summarily against a defendant under r 374 for providing inadequate particulars, without affording any opportunity to rectify the deficiencies. The usual course in those circumstances would be to give at least one opportunity to correct the defects; or possibly, where an amended defence was proposed, to permit the defendant to deliver the amended defence instead: Thomas v St George Bank [2013] QCA 136, [33]-[35] (Holmes JA, White JA and Gotterson JA agreeing).
Division 1--Amendment generally
[375] Power to amend go to top
The UCPR are to be applied with a view to facilitating the just and expeditious resolution of litigation and not so as to obscure the real issues and impede the progress of a proceeding. For instance, where leave to amend has been requested, and where the amendment is not likely to cause any relevant prejudice to the other parties, it is consistent with r 5 to grant leave for the pleading to be amended so that the real issues between the parties can be determined justly and expeditiously: Barker v Linklater [2008] 1 Qd R 405; [2007] QCA 363, [53], [55] (Muir JA). But consider whether this statement still represents the law following the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175: see Hartnett v Hynes [2009] QSC 225, below.
In circumstances where an application for the addition, removal or substitution of a party arises out of a genuine misunderstanding as to who the appropriate party is, r 69 applies rather than r 375(3): Re Jackaroo Agencies Pty Ltd [2006] 1 Qd R 332; [2005] QSC 333, [20] (White J).
The court may exercise its discretion to decline an application to amend a pleading to include a new cause of action for lack of particularity, but that does not prevent a further application being made after further particulars are given: Central Sawmilling No 1 Pty Ltd v Queensland [2003] QCA 311, [12]-[13] (de Jersey CJ, Mackenzie and Helman JJ).
Rule 375 is competent to permit a statement of claim to be amended to add a new cause of action under s 82 of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010), notwithstanding the expiration of the limitation period: Ramsay v McElroy [2004] 1 Qd R 667; [2003] QCA 208, [34] (White J, de Jersey CJ and Atkinson J agreeing).
As to the principles that inform the exercise of the discretion to grant leave to amend a pleading, in Hartnett v Hynes [2009] QSC 225, Applegarth J summarised the applicable principles as follows (citations omitted):
“[27] The principles discussed by the High Court in Aon inform the exercise of the discretion to grant leave to amend a claim pursuant to UCPR 377 and the discretion to allow or direct a party to amend a claim or a pleading pursuant to UCPR 375. I have already referred to some of these principles in discussing the operation of UCPR 5 in the case of amendments made without leave pursuant to UCPR 378 and the Court’s power to disallow such amendments or make directions concerning further amendment of a claim or a pleading in order to avoid prejudice to the other party and to comply with the rules of civil procedure and their purpose. In the context of the present application and in respect of amendments to the claim or the statement of claim for which leave is required, the following principles assume importance:
- An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
- The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
- There is a distinction between amendments which are necessary for the just and expeditious resolution of ‘the real issues in civil proceedings’ and amendments which raise new claims and new issues.
- The Court should not be seen to accede to applications made without adequate explanation or justification.
- The existence of an explanation for the amendment is relevant to the Court’s discretion, and ‘[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment’.
- The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
- Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
- The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
- Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
- The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
- Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
- The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”
The Court of Appeal allowed an appeal from the decision of Applegarth J: see Hartnett v Hynes [2010] QCA 65 . However, the Court of Appeal did not disagree with his Honour’s summary of the applicable principles. The statement of principles set out above was cited in Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2012] QSC 30, [14] (Boddice J); Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust [2014] QCA 267 , [74] (Flanagan J, McMurdo P and Morrison JA agreeing); and JM Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) [2014] QSC 262 (Flanagan J).
Rule 375(2)
By virtue of the operation of r 375(2), a proceeding commenced before all the facts necessary to give rise to a title to sue has occurred is not a nullity, but has sufficient existence to be capable of being made regular by amendment: Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, [26] (Keane JA), [43]-[44] (Muir JA), [90] (McMurdo J).
The effect of r 375(2) is that proceedings irregularly commenced may be made regular by amendment, even if the amendment includes a cause of action arising after the commencement of the proceedings: Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 ; [2007] QCA 130, [43] (Muir JA).
A defective proceeding cannot be described as a nullity if the court has power to cure the defect: Stone v Ace-I.R.M. Insurance Broking Pty Ltd [2004] 1 Qd R 174; [2003] QCA 218, [26], [28], (McMurdo J, Holmes J and McPherson J agreeing).
[376] Amendment after limitation period go to top
There will commonly be three separate questions to consider in an application for leave to amend:
(a) Is there a new cause of action?
(b) Arising out of substantially the same facts?
(c) Prejudice:
Jetcrete Oz Pty Ltd v Conway [2015] QCA 272, [14] (Applegarth J, Fraser JA & Henry J concurring), citing Thomas v State of Queensland [2001] QCA 336, [19].
Where a party seeks leave to amend their statement of claim pursuant to r 376 the court must consider whether in fact the new allegations amount to a new cause of action. The term “cause of action” does not merely include the category of action involved but also the facts which are material to proof of the elements of the action: James v State of Queensland [2015] QSC 65, [27] (Henry J). To this end, the court considers each amendment sought to be made to the claim individually: James v State of Queensland [2015] QSC 65, [34] (Henry J).
Where the rules of court permit a defectively endorsed writ to be cured by an appropriate statement of claim or an amendment thereof (by operation of rr 375 and 376), the writ is not a nullity, and it is effective at the commencement of proceedings for the purpose of the operation of a limitation period: Stone v Ace-I.R.M. Insurance Broking Pty Ltd [2004] 1 Qd R 173; [2003] QCA 218, [26], [28] (McMurdo J, Holmes JA agreeing), citing Hill v Luton Corporation [1951] 2 KB 387; Pontin v Wood [1962] 1 QB 594.
The exercise of discretion in favour of an applicant for an amendment under r 376 requires the judge to consider any prejudice which may be suffered by the other parties by allowing the amendment. The prejudice may be palpable or may exist without either of the parties being able to point to it (viz. the kind of prejudice referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551): Percy v Central Control Financial Services Pty Ltd [2000] QSC 129, [36] (Atkinson J).
Rule 376(4) - Amendment to include new cause of action
The expression “cause of action” has the same meaning as in s.16 of the Civil Proceedings Act 2011 (Qld) and in the Limitation of Actions Act 1974 (Qld): McQueen v Mount Isa Mines Ltd [2017] QCA 259 at [40]-[43]. And see Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2017] QSC 251(Jackson J).
The effect of r 376(4), by permitting an amendment out of time where appropriate, is to deprive the defendant of a limitation defence which it would otherwise enjoy if that new cause of action were prosecuted in a new proceeding: Mineral Resources Engineering Services Pty Ltd as Trustee for the Meakin Investment Trust v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia [2015] QSC 62, [40] (McMurdo J).
A need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under r 376(4): Draney v Barry [2002] 1 Qd R 145, [4] (McMurdo P), [57] (Thomas JA). In Draney, Thomas JA said:
“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 Rule 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.”
It is not necessary to identify special circumstances, in order to obtain a favourable exercise of discretion for the purpose of rr 376(4): Draney v Barry [2002] 1 Qd R 145, [3] (McMurdo P), [18] (Pincus JA), [58] (Thomas JA).
An amendment which sets up a different breach of duty is not within the scope of r 376(4)(b): Edwards v State of Queensland [2012] QSC 248, [28] (McMeekin J), citing Wolfe v State of Queensland [2009] 1 Qd R 97, [17].
The term “cause of action” in r 376(4) has been defined as “every fact which is material to be proved to entitle the plaintiff to succeed”, but this 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 requires leave under r 376(4): Borsato v Campbell [2006] QSC 191, [8] (McMurdo J).
The dividing line, for determining a “cause of action” under r 376(4), is 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: Borsato v Campbell [2006] QSC 191, [8] (McMurdo J), cited in Wolfe v Queensland [2009] 1 Qd R 97, [17] (Keane JA, Muir JA and Douglas J agreeing).
For the purpose of r 376, a cause of action is not “new” if it is reasonably apparent from a party’s pleadings prior to amendment that the party sought to raise that cause of action. A cause of action is not “new” in this context simply because not all of the material facts which must be established for the plaintiff to succeed have already been pleaded. The task required is to analyse whether the facts pleaded in the amended pleading, not included in the original, were simply further particulars of the cause already claimed or whether they described a cause of action which did not arise from the facts originally pleaded: Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, [19] (Fraser JA), [26]-[27] (Chesterman JA), [96] (Martin J).
In making the assessment as to whether an amendment falls within r 376(4) as seeking to introduce a “new” cause of action, the pleading should not be analysed too critically, but should be read broadly, resolving ambiguities or doubtful expressions in favour of the pleader, allowing inferences to be drawn from incomplete facts: Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, [54] (Chesterman JA).
Leave to amend an originating process pursuant r 376(4) may be granted where an additional cause of action is of substantially the same “story” as the original cause of action, with additional facts and a change of focus: Baker v Hallett; Baker v Pattison; Baker v James [2004] QSC 132, [43] (Holmes J), citing Draney v Barry [2002] 1 Qd R 145, [58] (Thomas JA). The question in each case is whether the facts out of which a new cause of action arises are substantially the same as facts relied upon in a cause of action for which relief has already been claimed in the proceeding. This may involve questions of degree and fine judgment, but the answer to that question should be informed by an appreciation that the policies underlying the applicable statute of limitation may be inappropriately undermined if the required analysis is conducted at too high a level of generality. If those underlying policies are not threatened by a proposed amendment, the test in UCPR r 376(4)(b) may be found to be satisfied even though the new claim involves some variation in the facts. This approach is consistent with the careful way in which the rule has generally been applied since it was enacted: Paul v Westpac Banking Corporation Ltd [2016] QCA 252 at [15]. And see Brisbane Airport Corporation Pty Ltd v Arup Pty Ltd [2017] QSC 232 (Applegarth J) at [35]-[40].
In looking to the purpose of r 376(4), it is sensible to accord a sufficiently wide interpretation to the phrase, “a relevant period of limitation” so that it applies to limitation periods found in Commonwealth legislation, and indeed in Queensland legislation, other than the Limitation of Actions Act 1974 (Qld): Norman Nominees Pty Ltd (in liq) v Zervos Pty Ltd [2014] 2 Qd R 202; [2011] QSC 320, [22] (Dalton J).
One cannot evade the plain intention of r 376(4) by inserting in a pleading a vague allegation raising no identifiable cause of action: Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, [17] (Fraser JA).
In circumstances where an application is made to add a new cause of action after a long delay, the central question will be whether a fair trial of the cause of action can be secured notwithstanding such delay. The applicant bears the onus of persuading the court that a fair trial can be secured in such circumstances: Nalos Pty Ltd v Robert Bird Pty Ltd [2015] QSC 174, [25] (Burns J), citing Hartnett v Hynes [2009] QSC 225.
Where an application to amend pleadings does not come within r 376(4), the Court nevertheless has a general discretion under s 81 of the Supreme Court of Queensland Act 1991 to add a cause of action out of time. However when exercising this discretion, the Court should bear in mind that allowing the application would effectively evade the Limitation of Actions Act 1974 and that the legislature intended the UCPR to provide ‘a consistent framework for all the Courts’. Therefore, adequate reasons would be required to justify the exercise of discretion in favour of such an amendment: Draney v Barry [2002] 1 Qd R 145, [2] (McMurdo P), [22]-[23] (Pincus JA) (Thomas JA dissenting) (however, see Baker v Hallett; Baker v Pattison; Baker v James [2004] QSC 132, [41] where Holmes J doubted this proposition in light of the amendment to the Supreme Court of Queensland Act in 2002, which clarified the effect of rr 375 and 376 by providing that "the rules of court may limit the circumstances in which amendments may be made).”
Where there is a case to which r 376 applies, the Court’s discretion to give leave to make an amendment after the relevant period of limitation has ended is effectively defined by that rule and there is not a distinct and wider power within s 16 of the Civil Proceedings Act 2011 (Qld): Mokrzecki v Popham [2013] QSC 123, [19] (McMurdo J).
By operation of s 79 of the Judiciary Act 1903 (Cth), a statement of claim in a Supreme Court proceeding can be amended to add a new cause of action, in accordance with r 376(4) and s 16 of the Civil Proceedings Act 2011 (Qld), despite the expiration of a limitation period stipulated under a Commonwealth Act, provided that the Commonwealth Act has not “otherwise provided” so as to exclude the application of Queensland provisions. The test of whether the Commonwealth legislation has “otherwise provided” is whether the Commonwealth legislation is irreconcilable with the state provisions: Ramsay v McElroy [2004] 1 Qd R 667, [25]-[28], [33]-[35] (White J, Atkinson J and de Jersey J agreeing). In relation to causes of action under s.82 of the Trade Practices Act 1974 (Cth), see Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; Ramsay v McElroy [2004] 1 Qd R 667; PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106; Murdoch v Lake [2013] QSC 268.
Defamation proceedings
The power granted to the Court under r 376(4) to allow the addition of an otherwise time-barred cause of action which arises out of substantially the same facts as existing causes of action is, in defamation cases, ousted by the operation of s 32A of the Limitation of Actions Act 1974 (Qld): Argus Probity Auditors and Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161, [31] (Flanagan J).
[377] Amendment of originating process go to top
A statement of claim is not an originating process within the meaning and for the purpose of r 377: Cousins Securities Pty Ltd v CEC Group Limited [2007] QCA 192, [9] (McMurdo P).
[378] Amendment before request for trial date go to top
The entitlement of a party to amend pursuant to r 378 and the power of the Court to disallow an amendment made under that rule are subject to the overriding purpose of the rules, which is to facilitate the “just and expeditious resolution of the real issues in civil proceedings at a minimum of expense” and the requirement that the rules be applied with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules: Hartnett v Hynes [2009] QSC 225, [11] (Applegarth J).
In Watson v Workcover Queensland [2006] 1 Qd R 587; [2005] QSC 225, [1], [38] Mullins J held that the amendment of a statement of claim in a proceeding for damages for personal injuries, to allege that the plaintiff suffered further injuries, did not add a cause of action. Accordingly, the amendment could be made without the court’s leave and with retrospective effect, under rr 378 and 387(1).
Even though a case has been placed on the Supervised Case List, the operation of r 378 is not ousted until trial dates are allocated by the Supervising Case List Judge: Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust [2014] QCA 267, [67] (Flanagan J, McMurdo P and Morrison JA agreeing).
[379] Disallowance of amendment go to top
The discretion granted by r 379 is exceedingly broad and authorizes the court to make "an order it considers appropriate": Alford v Ebbage [2002] QSC 289, [17] (Atkinson J).
The twelve principles identified by Applegarth J in Hartnett v Hynes [2009] QSC 225, [12], [15], [19], [22] with reference to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are of general application to the exercise of discretion in respect of an amendment pursuant to r 378 and an objection pursuant to r 379: Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust [2014] QCA 267, [74] (Flanagan JA, McMurdo P and Morrison JA agreeing); JM Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) [2014] QSC 262, [70]-[71] (Flanagan J). Applegarth J in Hartnett v Hynes [2009] QSC 225 at [27], stated the twelve principles to be as follows:
“[27] The principles discussed by the High Court in Aon inform the exercise of the discretion to grant leave to amend a claim pursuant to UCPR 377 and the discretion to allow or direct a party to amend a claim or a pleading pursuant to UCPR 375. I have already referred to some of these principles in discussing the operation of UCPR 5 in the case of amendments made without leave pursuant to UCPR 378 and the Court’s power to disallow such amendments or make directions concerning further amendment of a claim or a pleading in order to avoid prejudice to the other party and to comply with the rules of civil procedure and their purpose. In the context of the present application and in respect of amendments to the claim or the statement of claim for which leave is required, the following principles assume importance:
- An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
- The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
- There is a distinction between amendments which are necessary for the just and expeditious resolution of ‘the real issues in civil proceedings’ and amendments which raise new claims and new issues.
- The Court should not be seen to accede to applications made without adequate explanation or justification.
- The existence of an explanation for the amendment is relevant to the Court’s discretion, and ‘[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment’.
- The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
- Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
- The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
- Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
- The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
- Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
- The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”
While these factors are of general application, the weight given to them, generally and in combination, will vary depending on the facts of each case: Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust [2014] QCA 267, [100] (Flanagan J, McMurdo P and Morrison JA agreeing); citing Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, [51] (Keane CJ, Gilmour and Logan JJ).
Any failure to strictly comply with r 379 is an irregularity that is able to be corrected pursuant to r 367 or r 371: Monto Coal Pty Ltd v Sanrus Pty Ltd (as trustee of the QC Trust) [2014] QCA 267, [72] (Flanagan J, McMurdo P and Morrison agreeing).
[380] Amendment after request for trial date go to top
Rule 380 provides that an amendment after filing of a request for trial date may only be made with leave of the court. Its terms provide for a wide discretion, the exercise of which will be influenced by the individual circumstances of the particular case without the need for closed categories of relevant factors to be identified: Hassall v Johnden Engineering Pty Ltd [2001] QSC 211, [10] (Mackenzie J).
If the parties to an action agree to dispense with the filing of a request for trial date, that agreement does not have the effect that a deemed request for trial date has been made, and hence the requirement to seek leave before amending pleadings which otherwise do not require leave, does not arise: Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109, [48] (Douglas J).
There is an overlap between r 470 and r 380 in respect of the amendment of pleadings following a request for trial date being issued. In those circumstances, r 380 should be applied: Mackenzie v W Small Plant Hire (A firm) [2001] QCA 277, pp.5-6 (de Jersey CJ, Davies JA and Thomas JA agreeing).
[381] Failure to amend after order go to top
The Court has discretion, in an appropriate case, to extend the time period for the operation of an order of the kind referred to in r 381, even if the amended pleading was not originally filed within time for the purpose of the operation of the rule: Dupois v Queensland and Television Ltd [2014] QSC 48, [3] (de Jersey CJ).
Division 2--Procedural matters
[382] Procedure for amending go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[383] Who is required to make amendment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[384] Serving amendments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3--Consequences of amendment
[385] Pleading to amendment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[386] Costs go to top
In cases where leave to amend the pleading is required, r 386 is not applicable. However, r 692(2) is a provision of general application to amendments, including amendments to pleadings, which is to similar effect: Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd (No 2) [2018] QSC 129 (Brown J) at [21].
Where r 386 is applicable, it entails that the amending party cannot recover its costs of the amendment from the opposite party. No specific order to this effect is require: Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited (No 2) [2017] 2 Qd R 761 (Mullins J) at [16]-[17].
[387] When amendment takes effect go to top
Rule 387(3) is merely procedural and cannot operate to revive an entitlement extinguished by the operation of another enactment: Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520; [2007] QCA 192, [26] (Holmes JA, McMurdo P and Mackenzie J agreeing).
The amendments permitted by rr 376 and 378, and governed by r 387, include amendments that introduce a new cause of action and that make substantial changes: Body Corporate for Sun City Resort v Sunland Constructions Pty Ltd (No 2) [2011] QSC 042, [45] (Applegarth J).
In Watson v Workcover Queensland [2006] 1 Qd R 587; [2005] QSC 225, [1], [38] Mullins J held that the amendment of a statement of claim in a proceeding for damages for personal injuries, to allege that the plaintiff suffered further injuries, did not add a cause of action. Accordingly, the amendment could be made without the court’s leave and with retrospective effect, under rr 378 and 387(1).
A limitation period in this rule means a limitation period under the Limitation of Actions Act 1974 (Qld): Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520; [2007] QCA 192, [29] (Holmes JA, McMurdo P and Mackenzie J agreeing); Mokrzecki v Popham [2013] QSC 123, [18] (P McMurdo J), citing Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520.
Division 4--Amending orders or certificates
[388] Mistakes in orders or certificates go to top
While the scope of r 388 has been construed broadly, the discretion it confers is to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation: MIM Holdings Ltd v Commissioner of Stamp Duties [1999] QSC 345, [13] (White J), citing Gould v Vaggelas (1985) 157 CLR 215, 275.
An order under r 388 must be one which would have been made "of course" had the subject matter of the order been raised at the appropriate time: MIM Holdings Ltd v Commissioner of Stamp Duties [1999] QSC 345, [13] (White J), citing Commonwealth v McCormack (1984) 155 CLR 273, 277.
Inadvertence, as distinguished from an error or mistake resulting from deliberate decision, is the basis of the jurisdiction to correct under r 388: Uniting Church in Australia Property Trust (Qld) v Davenport [2009] QSC 134, [27] (Daubney J), citing Cawood v Infraworth Pty Ltd [1990] 2 Qd R 114, 122.
The principle from Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 that “a court may amend a judgment where the clear intention of the judgment is not expressed through some error” is applicable to the application of r 388: Rose v Terry Hewat Commercial Diving Pty Ltd (Unreported, Supreme Court of Queensland, 17 August 1999), [6] (Demack J).
A judgment that is based upon a plain misunderstanding will meet the language of the slip rule found in r 388(1)(b), namely a “mistake or error (which) resulted from an accidental slip or omission”: Queensland Pork Pty Ltd v Lott [2003] QCA 271, [19] (Cullinane J, McMurdo P and Jones J agreeing).
Rule 388 extends to authorise an omission resulting from the inadvertence of a party's legal representative: Gallagher v Boylan [2013] 1 Qd R 204; [2012] QCA 159, [20] (Fraser JA, Muir JA and Philippides J agreeing), citing L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590, 594–595; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 2) (1988) 62 ALJR 151, 152; MIM Holdings Ltd v Commissioner of Stamp Duties [1999] QSC 345 , [13] (White J), citing L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590, 594.
A contention that is abandoned by senior counsel on the basis that it is unsustainable cannot be regarded as a “slip” under r 388 that would justify re-opening litigation, because it cannot be said that a court would have immediately corrected its orders once the matter was brought to its attention: Gallagher v Boylan [2013] 1 Qd R 204; [2012] QCA 159, [14], [20] (Fraser JA, Muir JA and Philippides J agreeing), citing Conde v Gilfoyle [2010] QCA 173, [4].
If there is a power under r 388 to allow a party to re-litigate abandoned contentions, it would be open to the Court to refuse to do so in the exercise of its discretion: Gallagher v Boylan [2013] 1 Qd R 204; [2012] QCA 159 , [21] (Fraser JA, Muir JA and Philippides J agreeing).
[389] Continuation of proceeding after delay go to top
Exercise of court’s discretion
When the Court is considering whether to give leave to proceed under r 389 (or whether or not to dismiss an action for want of prosecution), there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:
- how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- how long ago the litigation was commenced or causes of action were added;
- what prospects the plaintiff has of success in the action;
- whether or not there has been disobedience of Court orders or directions;
- whether or not the litigation has been characterised by periods of delay;
- whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
- whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
- how far the litigation has progressed;
- whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- whether there is a satisfactory explanation for the delay; and
- whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial: Tyler v Custom Credit Corp Ltd [2000] QCA 178, [2] (Atkinson J, McMurdo P and McPherson JA agreeing).
However, the Court's discretion under r 389 is not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case, including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them: Tyler v Custom Credit Corp Ltd [2000] QCA 178, [2] (Atkinson J, McMurdo P and McPherson JA agreeing).
There is an evidentiary onus on the defendant to an application under r 389 to raise any consideration telling against the exercise of the discretion but the ultimate onus of satisfying the court that the action should be allowed to proceed remains on the applicant: Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, [2] (Chesterman J), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547 (Toohey and Gummow JJ).
Leave to proceed may be granted where the proceedings went into abeyance for a time to allow the terms of a settlement agreement to be performed, but where the proceedings are subsequently sought to be revived to enforce the settlement agreement: The Trust Company (PTAL) Limited v Amos [2018] QSC 92 at [10]-[11] (Brown J). And see RHG Mortgage Corporation Limited v Bennetts [2017] QSC 28 (Boddice J) at [9]-[13].
What constitutes the taking of “a step”
A “step” under r 389 must progress an action towards a conclusion: Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, [3], [8], [46]-[47] (Peter Lyons J, McMurdo P and Fraser JA agreeing).
An event may be a step in an action notwithstanding that it is not required by the rules, for example, the filing and service of a reply or a subsequent pleading would usually amount to a step in an action: Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, [3], [8], [48] (Peter Lyons J, McMurdo P and Fraser JA agreeing).
The provision of both a supplementary list of documents and copies of the documents so disclosed is a step: Sparkman’s Electrical Pty Ltd v Habershon [2017] QSC 156 (McMeekin J) at [9].
The provision in r 389(3) that “an application in which no order has been made is not taken to be a step” does not imply that every application upon which an order is made, or every such order itself, is a step: Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, [8] (Fraser JA).
The “last step” is the last effectual step. That is a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since been declared to be effectual under the rules. The mere fact that an irregular is step is not a nullity, because of the operation of r 371, does not make it effectual for this purpose: Ure v Robertson [2017] 2 Qd R 566 (CA) at [39]-[41].
Where a principal proceeding also involves counterclaims or third party proceedings, it may be that the “last step” must be in the specific proceeding in question: Ure v Robertson [2016] QSC 210 (Jackson J) at [86]–[87]; not considered on appeal in Ure v Robertson [2017] 2 Qd R 566 (CA) at [45]-[46].
The following matters do not constitute the taking of a “step” for the purpose of r 389:
- The obtaining of a document pursuant to a writ or notice of non-party discovery: Smiley v Watson [2002] 1 Qd R 560; [2001] QCA 269, 563 (Williams JA, Davies JA and McPherson JA agreeing).
- The transfer of proceedings from one court to another: Smiley v Watson [2002] 1 Qd R 560; [2001] QCA 269, 564 (Williams JA, Davies JA and McPherson JA agreeing).
- An order for disclosure that is initiated by a case flow management intervention notice and then not met: Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, [4] (McMurdo P).
- A notice of intention to take a step: Sparkman’s Electrical Pty Ltd v Habershon [2017] QSC 156 (McMeekin J) at [6]-[8].
[389A] Restricting applications that are frivolous, vexatious or abuse of court’s process go to top
Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice: Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271; [2002] QCA 546, [37] (McMurdo P and Atkinson J), citing Ashmore v British Coal Corporation [1990] 2 QB 338, 352.
As to the meaning of “vexatious” and “oppressive”, guidance can be obtained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, where Deane J stated that “oppressive” means seriously and unfairly burdensome, prejudicial or damaging and “vexatious” means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538: Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271; [2002] QCA 546, [36] (McMurdo P and Atkinson J), cited in Mbuzi v Hall [2010] QSC 359, [31] (Applegarth J).
Rule 389A does not provide for the striking out of a claim on the grounds of the claim itself being an abuse of process, but rather considers applications in an already existing proceeding. An application to strike out a claim which is, of itself, an abuse of process is made by invoking the court's inherent jurisdiction to prevent a misuse of its procedure which would be manifestly unfair to a party to litigation before it: McDowall v Reynolds [2006] QSC 414, [24]-[25] (Jones J).
The introduction of r 389A does not displace the court's inherent jurisdiction to prevent an abuse of its processes, including by requiring a vexatious litigant to obtain leave to issue a fresh application within an existing proceeding: Mbuzi v Hall [2010] QSC 359, [29] (Applegarth J), citing von Risefer v Permanent Trustee Co Pty Ltd [2005] QCA 109.
Rule 389A does not require the court to make a determination that a party is a vexatious litigant. Such a determination invokes the jurisdiction of the Vexatious Proceedings Act 2005 (Qld). Under r 389A the issue is whether the applicant has made more than one application in relation to a proceeding which is frivolous, vexatious or an abuse of process: Mbuzi v Hall [2010] QSC 359, [30] (Applegarth J).
Although there are no definitions of “frivolous”, “vexatious” or “an abuse of process” in r 389A, it might be inferred, in addition to the meaning which has been accorded to those expressions where they appear in other rules, for example, rr 15, 162 and 171, and in authorities such as Williams v Spautz considering abuse of process, resort might also be had to the provisions of the Vexatious Proceedings Act 2005 (Qld): Hambleton v Labaj [2011] QCA 17, [26] (White JA, McMurdo P and Cullinane J concurring).