Eustace v Dubrava & Anor [2021] QCA 249 [2021] 47 QLR

SUPREME COURT OF QUEENSLAND CITATION: Eustace v Dubrava & Anor [2021] QCA 249 PARTIES: ROSS GRAEME EUSTACE (applicant) v YVETTE DUBRAVA (first respondent) ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second respondent) FILE NO/S: Appeal No 7305 of 2021 DC No 3988 of 2018 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane – [2021] QDC 104 (Dearden DCJ) DELIVERED ON: 19 November 2021 DELIVERED AT: Brisbane HEARING DATE: 15 November 2021 JUDGES: McMurdo and Bond JJA and Boddice J ORDERS: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The order below dismissing the applicant’s application to amend paragraphs 8(d), 8(e), 8(f) and 8(g) be set aside. 4. The applicant’s application to amend paragraphs 8(c), 8(d), 8(e), 8(f) and 8(g) of the Statement of Claim be granted. 5. The respondents pay the appellant’s costs of the application for leave to appeal and of the appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where the applicant seeks leave to appeal the refusal of the trial Judge to grant leave to amend aspects of his Statement of Claim, in a proceeding claiming damages for personal injuries – where the application for leave to amend related to the addition of a previously un-pleaded claim for psychiatric injury and increases in the amounts claimed for general -- 1 of 6 -- 2 damages, future medical expenses, lost earnings, future economic loss, past gratuitous domestic assistance and future gratuitous domestic assistance – where the respondents opposed leave being granted to amend the Statement of Claim to increase the claimed lost earnings from a global sum of $15,000 to $123,854; the claimed future economic loss from $150,000 to $246,960; the claimed past gratuitous domestic assistance from $5,000 to $37,520; and to a decrease in the claimed future domestic assistance from $50,000 to $32,720 – where the trial Judge found the amendments were significant and far reaching in the context of the case in dispute at trial and had resulted in the respondents losing the opportunity to have the plaintiff examined by an occupational therapist and to investigate the circumstances of the provision of the gratuitous services – where the trial Judge further found the deficiencies ought to have been identified long before the eve of trial and, if necessary, an application made to adjourn the trial at that time – whether the trial Judge, in exercising a discretion to refuse leave to amend those opposed heads of damages, failed to consider whether the prejudice afforded to the respondents by those amendments could adequately be met by an order that the trial be adjourned, with the applicant being ordered to pay the costs thrown away by the adjournment District Court of Queensland Act 1967 (Qld), s 118(8) Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, followed COUNSEL: M D Martin QC, with A J Taylor, for the applicant R C Morton for the respondents SOLICITORS: CMC Lawyers for the applicant McInnes Wilson Lawyers for the respondents [1] McMURDO JA: I agree, for the reasons given by Boddice J and the further reasons given by Bond JA, that there should be orders as Boddice J proposes. [2] BOND JA: I have had the advantage of reading in draft the reasons for judgment of Boddice J. [3] I agree with his Honour that the primary judge erred by failing to consider the relevant consideration of whether the prejudice which the respondents might suffer consequent upon a grant of leave could be met adequately by an order that the trial be adjourned, with appropriate costs orders. I also agree with his Honour, for the reasons his Honour gives, that it would be appropriate to grant leave to appeal in this case. [4] Error having been demonstrated and leave to appeal given, the appeal is by way of rehearing,1 and this Court is required to make its own decision based on the facts and law as they now stand.2 This Court is not determining what decision should have been made by the primary judge had he not made the error which he did make. Things have moved on. As Boddice J mentioned, the primary judge in fact granted an 1 District Court of Queensland Act 1967 (Qld) s 118(8). 2 Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] (Gaudron, McHugh, Gummow and Hayne JJ). -- 2 of 6 -- 3 adjournment of the trial immediately after deciding the application for leave to amend. The correctness of that decision is not before this Court, but the fact of it having been made substantially affects the discretionary calculus before this Court. [5] The respondents can no longer complain that a grant of leave to amend would require them to meet new issues at trial with no opportunity to prepare to meet the new case. The adjournment has given them that time. Other arguments which are often persuasive against a grant of leave to make a substantive amendment on the eve of trial no longer apply. Indeed, the only consideration to which the respondents could point as a reason why this Court should now refuse leave to amend is the prejudice which might be inferred to have arisen from the effluxion of time. I agree with the way in which Boddice J has dealt with that argument. [6] Accordingly, I agree with Boddice J that leave to amend should be given, and that orders should be made as his Honour proposes. [7] BODDICE J: The applicant seeks leave to appeal the refusal of the trial Judge to grant leave to amend aspects of his Statement of Claim, in a proceeding claiming damages for personal injuries obtained as a consequence of the first respondent’s negligent driving of a motor vehicle on 15 August 2017. Proceeding [8] The proceeding was commenced in 2018. Liability was admitted but quantum remained in dispute. [9] A Statement of Loss and Damage was first filed on 17 February 2019. A request for trial date was filed on 22 January 2021. The trial was set down on 5 February 2021 for three days commencing 31 May 2021. [10] The application for leave to amend was brought on the first day of trial. The application had been first foreshadowed on the preceding business day. Application [11] An application for leave to amend the Statement of Claim was necessary, as a request for trial date had been filed in the proceeding on 22 January 2021. [12] The application for leave to amend related to the addition of a previously un-pleaded claim for psychiatric injury and increases in the amounts claimed for general damages, future medical expenses, lost earnings, future economic loss, past gratuitous domestic assistance and future gratuitous domestic assistance. The proposed psychiatric injury had been the subject of expert reports obtained well before trial. [13] The respondents did not oppose the proposed amendments in respect of a claim for psychiatric injury and consequent increases in the claimed general damages, future medical expenses and employer funded superannuation. The respondents opposed leave being granted to amend the Statement of Claim to increase the claimed lost earnings from a global sum of $15,000 to $123,854; the claimed future economic loss from $150,000 to $246,960; the claimed past gratuitous domestic assistance from $5,000 to $37,520; and to a decrease in the claimed future domestic assistance from $50,000 to $32,720. [14] The respondents opposed leave, in respect of those aspects of the application for leave to amend, on the basis the amounts claimed involved substantial changes to the -- 3 of 6 -- 4 plaintiff’s case in circumstances occasioning real prejudice to the respondents as they had no opportunity to explore and test those claims. The respondents submitted that the increases in the claimed past and future economic losses raised, as an issue, the circumstances of the cessation of the applicant’s previous employment. Similarly, the significant increase in the claim for past gratuitous assistance raised whether the applicant was entitled to gratuitous care which would meet the relevant threshold and the necessity for such care, raising the need for an occupational therapy assessment. [15] The applicant submitted the opposed amendments would not change the evidence at trial. The amendments regularised the proceedings to be consistent with the updated Statement of Loss and Damage filed on 24 May 2021. [16] The applicant relied on an affidavit from his solicitor to explain the delay in bringing the application. In short, the explanation was that the applicant’s solicitor did not appreciate, at the time of signing the request for trial date, the need to amend the pleadings to take into account the increases in the heads of damages claimed by the applicant, and only realised the need when preparing for trial. Decision [17] In refusing leave to amend the opposed aspects of the Statement of Claim, the trial Judge found the amendments were significant and far reaching in the context of the case in dispute at trial and had resulted in the respondents losing the opportunity to have the plaintiff examined by an occupational therapist and to investigate the circumstances of the provision of the gratuitous services. The trial Judge also accepted that the scale of increases in the claimed past and future economic losses changed dramatically, resulting in prejudice to the respondents. [18] The trial Judge further found the deficiencies ought to have been identified long before the eve of trial and, if necessary, an application made to adjourn the trial at that time. The failure to do so had resulted in detriment to the respondents’ entitlement to a fair trial, such that it was appropriate to refuse the application to amend, save to the extent that amendments were consented to by the respondents. Submissions [19] The applicant submits leave to appeal the refusal of those aspects of the amendments ought to be allowed, because the amendments which were disallowed would consequentially flow from the trial Judge’s allowance of the amendment to the applicant’s claim to include a psychiatric injury. In those circumstances, substantial injustice is caused to the applicant. The applicant submits that the trial Judge failed to consider whether any prejudice suffered by the respondent, in allowing the amendments, could be cured by an adjournment of the trial, with an order for costs. [20] The applicant further submits the trial Judge erred in accepting that there was no material seeking to explain the substantial change in the plaintiff’s claim for past loss of income. There was an explanation, namely, that the need to amend had been overlooked by the applicant’s previous legal representatives. The applicant submits the trial Judge also erred in placing undue weight on the increased monetary value of the proposed amendments, when there was leave to amend to include a claim for psychiatric injury and there was already existing expert evidence in relation to that aspect of the claim. [21] The respondents submit that leave to appeal ought not to be granted. The discretion of the trial Judge to refuse the opposed amendments did not miscarry. The trial Judge -- 4 of 6 -- 5 correctly recognised that, having regard to the nature of those amendments in the context of the commencement of a trial, prejudice would be occasioned to the respondents. Further, such amendments were properly not to be permitted in circumstances where there had been no explanation for the delay. Consideration [22] Ordinarily, leave to appeal is only to be granted where an error of principle is established, with the consequence that a failure to correct that error will create a substantial injustice to a party to the proceeding. [23] Whilst particular restraint is properly to be exercised in respect of an application for leave to appeal against a decision to refuse an amendment made at the commencement of trial, the refusal of leave to make the opposed amendments did, in the circumstances of this case, involve an error of principle. [24] The trial Judge, in exercising a discretion to refuse leave to amend those opposed heads of damages, failed to consider whether the prejudice afforded to the respondents by those amendments could adequately be met by an order that the trial be adjourned, with the applicant being ordered to pay the costs thrown away by the adjournment. Significantly, the trial Judge accepted, after refusing leave to amend those heads of damages, that the circumstances warranted an adjournment of the trial in any event, with appropriate costs orders. [25] Further, once the trial Judge granted the applicant leave to amend his Statement of Claim to include a claim for psychiatric injury, the applicant was afforded a substantial injustice by being denied the opportunity to claim damages said to be occasioned by that claimed injury. [26] As the applicant has established an error of principle, with a resultant substantial injustice to the applicant, I would grant leave to appeal. [27] In re-exercising the discretion, it is relevant that the respondents failed to identify any specific prejudice arising from the disallowed amendments, other than prejudice to investigating the new case which arises from the effluxion of time and the consequent effects on the memories of witnesses. However, those consequences are not so great as to warrant an order denying a plaintiff the opportunity to claim damages said to flow from the psychiatric injury now part of the claim. [28] Whether the plaintiff’s employment was terminated, or he was made redundant is likely to be the subject of documentation. There is no evidence that such documentation would be unavailable or that relevant witnesses are dead or otherwise unable to be called at trial. Similarly, the type of gratuitous care claimed has not changed, only the number hours required. The passage of time has not been so great as to warrant a finding of prejudice, absent evidence of the death or unavailability of relevant witnesses. [29] In the circumstances, I would grant the applicant leave to amend paragraphs 8(c), 8(d), 8(e), 8(f) and 8(g) of the Statement of Claim. Orders [30] I would order that: -- 5 of 6 -- 6 (a) leave to appeal be granted; (b) the appeal be allowed; (c) the order below dismissing the applicant’s application to amend paragraphs 8(d), 8(e), 8(f) and 8(g) be set aside; (d) the applicant’s application to amend paragraphs 8(c), 8(d), 8(e), 8(f) and 8(g) of the Statement of Claim be granted. (e) the respondents pay the appellant’s costs of the application for leave to appeal and of the appeal. -- 6 of 6 --