An interesting point of practice that has arisen recently relates to whether a plaintiff always needs a grant of leave under r 376 of the Uniform Civil Procedure Rules (“UCPRs”) to amend a Statement of Claim to add a cause of action that is statute barred at the time of the amendment. In particular, will such an amendment made under r 378 be deemed to operate ab initio if the defendant does not apply successfully to have the amendment disallowed under r 379?
The applicable provisions of the UCPRs provide:
“375 Power to amend
(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2) …
(3) …
(4) This rule is subject to rule 376.
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 ifâ
(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.
377 Amendment of originating process
(1) An originating process may not be amended exceptâ
(a) …;
(b) …; or
(c) otherwiseâwith the leave of the court.
(2) Subrule (1) does not apply to a pleading or particular included in an originating process.
378 Amendment before request for trial date
Before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required under these rules.
379 Disallowance of amendment
(1) If a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment.
(2) On the application, the court may make an order it considers appropriate.
387(1) When amendment takes effect
If a document is being amended under this part, the amendment takes effect on and from the date of the document being amended.”
In a general sense, r 387(1) seems to be intended to deem amendments of the kind dealt with in Part 3 (that is, amendments not accompanied by the joinder of a new party) to operate ab initio, at least if they have been duly made.1
If a plaintiff amends a Statement of Claim under r 378 to add a cause of action which is statute barred by the time of the amendment, and leave is not obtained under r 376, does r 387(1) still apply with the result that the amendment is deemed to operate at the time of (say) the commencement of the action? Or does the failure to obtain a grant of such leave have the result that the amendment only operates at the time of making the amendment?
This issue is pending in a matter currently before the Court. In that case, an amended Statement of Claim was filed, with an indorsement on the front page stating that it was amended pursuant to r 378. A second amendment was filed about a year later, containing a similar indorsement. Later, the plaintiff then sought to amend the Statement of Claim a third time, and applied for leave to do so. On the defendant’s case (which was disputed by the plaintiff), the amendments added causes of action which were statute barred at the time the amendments were made. The defendant did not apply at any time to have the amendments disallowed under r 379. The matter was on the Supervised Case List, and the amendments had been made following orders made by the Supervised Case List Judge that they be filed and served.
It was in dispute whether the orders made in the Supervised Case List amounted to or implied a grant of leave under r 378, and whether it made a difference that the matter was on the Supervised Case List. But the question was also argued whether the previous two amendments would operate ab initio on the supposition that there was no grant of leave under r 378 and that it made no difference that the matter was on the Supervised Case List.
It was submitted for the plaintiff that the onus lay on the defendant to apply under r 379 to have the amendment disallowed and that, because the defendant failed to do so, the amendment was taken to have been made “under this part” for the purposes of r 387(1) and for limitation purposes is taken to have operated ab initio. In support of this argument, it was said that there is no provision in the Rules which required a plaintiff to seek a grant of leave under r 378. Citing dictum of P Lyons J,2 it was pointed out for the plaintiff that r 376(1) provides that “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.” Thus, so the argument went, it was open for the plaintiff to rely on r 378 to make the amendment because it fell within the words of r 378 in that it was an amendment “for which leave from the court is not required under these rules.”
Against that, the defendant argued, amongst other things, that the phrase “for which leave from the court is not required under these rules” does not refer only to the case (such as r 377) where Part 3 provides that an amendment may not be made without leave. It includes the case where a plaintiff requires a grant of leave in a case where the Rules make provision for the seeking of such leave. It was contended that, where a plaintiff was seeking to add a cause of action that was statute barred at the time of the amendment, that was a case where the plaintiff required a grant of leave to achieve the result referred to in r 387(1), and provision was made for obtaining the grant of such leave in r 376. The defendant submitted that it could not be an amendment made “under this part” for the purposes of r 387(1), if a plaintiff needed a grant of leave to achieve the result of deeming the amendments to have been made ab initio, but had not obtained such leave. The defendant also relied on the fact that, under Order 32 r 1 of the former Supreme Court Rules, a grant of leave under r 1(2) and (5) meant that a defendant was precluded from setting up a limitation defence.3
During argument, the question was raised whether there was any utility in deciding this issue: could the Court in any event order now that there be a grant of leave under r 376? The circumstances, such as the failure to apply for leave, the obtaining of orders about the delivery of amended pleadings and the failure by the defendant to object at the time would all merely be matters for the Court to take into account in exercising its discretion as to whether leave should be given.
However, it was submitted by the defendant that the point about the construction of Part 3 of the UCPRs had to be determined because there was a dispute in the case as to whether the amended Statement of Claims added causes of action that were already statute barred by the time the action had started.
Rule 376(1), as set out above, provides that “This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.” (Emphasis added).
The defendant submitted that the Court could not grant leave under r 376 in respect of causes of action which were not current at the time the action was commenced, and that the plaintiff had a positive onus to adduce evidence to demonstrate that the causes of action were current. It was not enough to plead the causes of action and then rely on a submission that it was arguable that they were current at the time the action was commenced.
Counter arguments were put, including in reliance on r 371.
It is not necessary to canvass all of the arguments in detail. This note is intended to give a concise, but fair and objective, summary of the way the arguments have fallen out in the case and is not intended to be exhaustive. As the matter is pending before the Court, it is enough to bring issues of potential practical importance to the attention of readers. Readers are invited to “watch this space” for a further update once the matter is decided.
Stephen Lee
Footnotes
- Compare r 74(5) which deals with joinder of a new party.
- Hughes v WBC [2010] QSC 274 [9].
- Adam v Shiavon [1985] 1 Qd R 1, 10.
