Gareth Beacham QC appeared for the appellant in this matter.
The appellant hired the respondent to provide geotechnical, engineering and other services in relation to the expansion of the apron and taxiway of the northern concourse of the Brisbane International Terminal (‘NAE project’). However, in 2010, the NAE began to crack. In 2016 the appellant sued the respondent for negligence and, alternatively, for breaching the Trade Practices Act 1974 (Cth). In March 2017 the appellant delivered an amended statement of claim. The respondent contended that the limitation period had run out. If so, s 376 of Uniform Civil Procedure Rules 1999 (Qld) applied. Section 376 requires leave of the court, and the court may only give leave if it is appropriate and if the new cause of action arises from the same or substantially the same facts.
The amendments in essence changed the focus from a failure to consider the effect of “surcharging” work upon clay underneath the sand, to a failure to consider the prospect of post-construction compaction of the sand.
The appellant argued that the amendments were not a new cause of action but rather were particulars of an existing cause of action. The Judge did not agree with that. The amendments extended the duty of care to work required under two agreements, and required the respondent to look both forward and back.
Alternatively, the appellant argued that the new cause of action arose from the same or substantially the same facts. Applegarth J observed that the facts do not have to be exactly the same. He described the different tests for ascertaining whether the cause of action fits within the section. He noted that the harm both pleadings addressed was the same, being excessive consolidation of the ground. He concluded that the new cause of action did arise from substantially the same set of facts, being merely a different aspect of the same duty of care.
The respondent submitted that it would not be appropriate to allow the amendments because of the delay by the appellant in amending the statement of claim, which the respondent had not adequately explained.
The Appellant submitted that it would be appropriate to allow the amendments because the respondent would not be prejudiced, their delay in amending the statement has been explained by the need to finalise the expert report, and the amendments will not significantly delay the conduct of the case, will reflect the appellant’s expert opinion and will permit the real issues in dispute to be resolved. Applegarth J was persuaded by these arguments and allowed the amendments.
See the judgment here: https://www.sclqld.org.au/caselaw/QSC/2017/232
