This recent and interesting decision of the Court of Appeal considers the application of r 376(4) of the UCPR which sets out the circumstances in which a party may be granted leave to make amendments to include a “new cause of action” in an existing statement of claim, which would otherwise be out of time. The Court clarified that an amendment does not create a new cause of action simply because all the required material facts have not already been pleaded.
Fraser and McMurdo JJA and Brown J
3 November 2017
This matter concerned an appeal from a decision of the Supreme Court dismissing an application by the defendants to strike out paragraphs of an amended statement of claim (“ASOC”). . The first respondent, Mount Isa Mines Ltd, filed the ASOC without leave pursuant to r 376 of the Uniform Civil Procedure Rules 1999 (“UCPR”). . Rule 376(4), in particular, sets out conditions on the power to grant leave to make an amendment to include a new “cause of action”. The defendants all applied to have certain paragraphs struck out. . The central argument was that the paragraphs of the ASOC added new causes of action which were out of time and for which leave had not been granted. .
The background to the case concerned a fire which had caused damage to infrastructure at the Mt Isa Mines lead, zinc and silver processing plant. . Mt Isa Mines’ case alleged breaches of duty in tort and breaches of contract. The key complaint of the defendants was that the amendments made by the ASOC pleaded a difference case on causation – specifically that Mt Isa Mines was “prevented or delayed from carrying out works necessary to achieve a commercial aim of increasing zinc/lead ore throughput by the second half of 2008”. . This was said to constitute a new cause of action. . Mt Isa Mines argued that the case pleaded in the statement of claim and the ASOC remained the same. .
The defendants’ central argument was that the term “cause of action” as it is used in r 376(4) of the UCPR had a “broader meaning than ‘cause of action’ as it is understood in relation to the Limitations of Actions Act 1974 by which it is determined whether a cause of action has accrued”. , . They contended that it extended to the pleading of new material facts raising a “new set of ideas”, “a different head of loss”, or “new facts which support the claim for relief”. . In support of this argument, the defendants argued that the term “cause of action” may have “different meanings in different contexts”. .
Ultimately, the Court rejected the defendants’ contention. Brown J, with whom Fraser and McMurdo JJA agreed, noted that the context in which “cause of action” was used in r 376, made clear that it did not have a meaning other than that which it has under the Limitations of Actions Act. . As her Honour observed:
“The [defendants’] contention is misconceived as it fails to recognise that the limitation on adding a new cause of action in r 376(4) only arises where the time for instituting proceedings in respect of the cause of action has expired.” .
As for the meaning of “cause of action” her Honour noted that, in the context of limitation statutes, “a cause of action accrues once the plaintiff is able to issue a statement of claim capable of stating every existing fact which is necessary for the plaintiff to prove to support his or her right to judgment”. . The broader meaning contended for by the defendants was rejected. –, . Accordingly, there was no error on the part of the primary judge “in finding the amendments did not plead a new cause of action”. .
The appeal was dismissed with costs. .