Camm v Bell Pacific Holdings P/L [2004] QDC 7

DISTRICT COURT OF QUEENSLAND CITATION: Camm v Bell Pacific Holdings P/L [2004] DC 007 PARTIES: PETER ROBERT CAMM Plaintiff v BELL PACIFIC HOLDINGS PTY LTD (ACN 060 674 277) TRADING AS VERSATILE AVIATION Defendant FILE NO: D33102 of 2001 PROCEEDING: Application to amend statement of claim DELIVERED ON: 4 February 2004 DELIVERED AT: Brisbane HEARING DATE: 2 December 2003 JUDGE: Judge Brabazon QC ORDER: Order that the plaintiff have leave to amend CATCHWORDS: PRACTICE – Queensland – Amendments – Uniform Civil Procedure Rules 375, 376, 387 – Amendment to statement of claim – where relevant period of limitation expired AVIATION – Carriage by air – Civil Aviation (Carriage Liability) Act 1964 Agtrack (NT) Pty Ltd v Hatfield (2003) 174 FLR 395 – distinguished. Staples v City and Country Helicopters Pty Ltd and Cross (1994) 119 FLR 291 – cited. Stumann v Spansteel Engineering (1986) 2 Qd R 471 – cited. Teys Bros Pty Ltd v ANL Cargo Operations Pty Ltd (1990) 2 Qd R 288 – cited. Timeny v British Airways plc (1991) 103 ALR 565 – cited. Draney v Barry (2002) 1 Qd R 145. Air Link Pty Ltd v Patterson (No 2) [2003] NSWCA 251 – followed. Air Link Pty Ltd v Patterson (No 1) [2002] NSWCA 85 – cited. -- 1 of 13 -- 2 Jerome v Hill [2001] 1 Qd R 496 – cited. Lynch v Keddell (No 2) [1990] 1 Qd R 10 – followed. Adam v Shiavon [1985] 1 Qd R 1 – followed. Samways v Ansett Australia Ltd [2001] WASC 140 – followed. COUNSEL: Mr Green for the plaintiff Mr Corkery for the defendant SOLICITORS: Bennett & Philp for the plaintiff McCullough Robertson for the defendant The Facts [1] In July 1999 the defendant had a registered office at 307 Queen Street, Brisbane. It carried on the business of aviation hire under the registered business name of “Versatile Aviation”. [2] The plaintiff wanted the use of a helicopter to muster stock on Melrose Station near Murgon, Queensland. The defendant agreed to hire a helicopter, with its pilot, to him. On or about 20 July 1999, the plaintiff was a passenger in the helicopter when it crashed into a dry creek bed. He was injured. [3] The plaintiff retained solicitors. They filed a claim and statement of claim in this court on 27 June 2001. The statement of claim said that the defendant was guilty of negligence and had breached its contract with the plaintiff. Some particulars of those failures were given. [4] On 2 November 2001 the solicitors for the defendant filed a notice of intention to defend. The facts outlined above were admitted. The various allegations of negligence or breach of contract were denied. It maintained that it had received a -- 2 of 13 -- 3 “maintenance release” from a licensed aircraft maintenance engineer only six hours before the crash. [5] When the defence was served, it was accompanied by a letter from the defendant’s solicitors: “Would you please note that our investigations in relation to this matter are continuing. It seems to us that perhaps your client’s rights may be affected by the provisions of the Civil Aviation (Carriers Liability) Act 1964. We will advise you further in this regard once our investigations have been finalised, and, if necessary, file and serve an amended defence.” [6] Correspondence, which was “without prejudice”, passed between the solicitors, concerning the application of both the Commonwealth and Queensland statutes that deal with a carrier’s liability in the field of civil aviation. [7] Then, in a letter of 1 May 2003, the defendant’s solicitors enclosed a copy of the defendant’s Air Operator’s Certificate, issued under the Civil Aviation Act 1988. They had previously notified the plaintiff’s solicitors of the existence of the certificate, in September 2002. [8] In August 2003 the plaintiff said that they wished to amend the statement of claim. In a letter of 23 October 2003, the defendant’s solicitors opposed the amendments, saying that there would need to be an application to the court. The application to amend was filed in this court on 7 November 2003. -- 3 of 13 -- 4 The Statement of Claim [9] Unfortunately, the plaintiff’s legal advisers were not aware of the significant effect of Queensland’s Civil Aviation (Carrier’s Liability) Act 1964. It applied to the carriage of passengers by aircraft, within Queensland, operated by the holder of an airline licence or a charter licence in the course of commercial transport operations. To those operations, it applied the identical provisions of the Commonwealth statute, which is the Civil Aviation (Carrier’s Liability) Act 1959. [10] In effect, those statutes adopt the principles of the Warsaw Convention of 1929. The result is this: (a) Any common law right to sue for negligence or breach of contract is abolished; (b) Instead, the carrier is made absolutely liable for damage sustained by reason of any personal injury suffered by the passenger, “resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking”; (c) the right to claim damages is extinguished if an action is not brought within two years after the accident. [11] The above provisions apply to a passenger who is carried in an aircraft being operated by the holder of a charter licence in the course of commercial transport operations. [12] The proposed amendments were set out in the letter of 4 August 2003. In effect, they seek to do three things: -- 4 of 13 -- 5 (a) to make it clear that the plaintiff’s claims were made pursuant to the Civil Aviation (Carrier’s Liability) Act 1964 (Queensland); (b) to allege that the defendant held an operator’s certificate with respect to the hiring of the helicopter; (c) that the claims of negligence or breach of contract be deleted. [13] The letter said that “The amendments are proposed in order to bring the proceeding into line with the remedy open to the plaintiff pursuant to the relevant statutory provisions. We note that the first occasion that the plaintiff was advised that the defendant held an air operator’s certificate in relation to the charter was contained in your correspondence dated 3 September 2002. You provided a copy of the air operator’s certificate under cover of correspondence dated 1 May 2003. On the basis of this information, the plaintiff intends to amend the statement of claim to reflect the statutory cause of action open to him in respect of the damages arising out of his personal injuries sustained in the helicopter crash of 20 July 1999.” [14] The defendant opposes the request for leave to make the amendment. [15] There is already a body of authority in this country dealing with similar applications. There are three issues to be considered – what are the deficiencies in the present pleading, what are the legal principles and rules applying to the proposed amendment, and should the amendment be allowed in any case? [16] The statement of claim is very similar to that considered by the Victorian Court of Appeal in Agtrack (NT)Pty Ltd v Hatfield (2003) 174 FLR 395. The only difference is that here there is just an admission that the defendant carried on the business of aviation hire, whereas in the Victorian case there was a gratuitous admission that the -- 5 of 13 -- 6 defendant was the holder of an air operator’s certificate authorising charter operations. Ormiston JA (with whom the others agreed) thought that the holding of the necessary licence was sufficiently implicit in the allegation that the defendant was “carrying on the business of charter aircraft”. There is no real difference in this pleading, which asserts that “the defendant company carried on the business of aviation hire known as Versatile Aviation, a registered business name.” [17] As in the Victorian case, there is no mention of the significant statutory provisions. Both the Victorian rules of court and the Queensland Uniform Civil Procedure Rules required it to be mentioned – see UCPR 149(1)(e). That is the only significant defect in this case. [18] It was suggested that the statement of claim did not make it clear that the crash of the helicopter occurred within Queensland. However, the “dry creek bed” referred to was obviously on Melrose Station. It is sufficiently clear that all aspects of the claim arose in Queensland. The Submissions [19] Reference was made to rules dealing with amendments: UCPR 375 Power to amend (i) 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 a document in a proceeding in the way and on the conditions the court considers appropriate. (ii) Subject to rule 376, the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started. -- 6 of 13 -- 7 UCPR 376 Amendment after limitation period (i) This rule applies if, in a proceeding, an application for leave to make an amendment is made after the end of a relevant period of limitation current at the date the proceeding was started. … (iv) The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action if- (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. (v) This rule does not limit the court’s powers under rule 375. UCPR 387 When amendment takes effect (i) An amendment, made under this part, of a document takes effect on and from the date of the document that is amended. (ii) However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on and from the date of the order giving leave. [20] Counsel for the defendant says that the proposed amendments should not be allowed, for these reasons: (a) the statement of claim raises issues of negligence and breach of contract, and says nothing about the civil aviation statute; (b) there is no allegation that the defendant held an operator’s certificate – a requirement of s 4 of the Queensland statute; (c) the application amounts to introducing a new cause of action; (d) UCPR 387(2) in this case means that an amendment introducing a new cause of action after the proceeding has started, takes effect on and from the date of the order giving leave. It does not “relate back” to the original claim; -- 7 of 13 -- 8 (e) an amendment would have the effect of reviving a cause of action which has been extinguished. The court has no power to do that. See the decisions in Staples v City and Country Helicopters Pty Ltd and Cross (1994) 119 FLR 291 (per Cullinane J); Stumann v Spansteel Engineering (1986) 2 Qd R 471 (Full Court); Teys Bros Pty Ltd v A.N.L. Cargo Operations Pty Ltd (1990) 2 Qd R 288 (Cooper J); and Timeny v British Airways plc (1991) 102 ALR 565 (Full Court of S.A.); (f) there is no power in the District Court similar to that found in s 81 of the Supreme Court of Queensland Act. Section 81 was considered in Draney v Barry (2002) 1 Qd R 145 where it was held that the Supreme Court had an additional statutory power to allow amendments out of time. [21] For the plaintiff it was submitted that the amendments should be allowed, as the case was indistinguishable from Agtrack, where a similar amendment was allowed. There is no prejudice. The cause of action arises out of substantially the same facts – UCPR. The carrier could have been no misapprehension as to the nature of the claims made against it, nor of its liability. Liability was strict, in any event. In particular, it was submitted that the decision of Cullinane J in Staples case should not lead to a similar conclusion in this case. Rather, the NSW decision in Air Link Pty Ltd v Patterson (No 2) [2003] NSWCA 251 should be followed. A Necessary Amendment -- 8 of 13 -- 9 [22] The decided cases compel the conclusion that this pleading is defective, because it raises issues of negligence and breach of contract, while ignoring the statutory cause of action that was available. The opinion of Cullinane J to that effect has the support of the Court of Appeal of New South Wales in Air Link Pty Ltd v Patterson (No. 1) [2002] NSWCA 85. There is also the similar conclusion, though somewhat reluctantly reached, of the Victorian Court of Appeal in Agtrack. An amendment is required, to add a new cause of action. (In Samways, (below) it was said that there was sufficient pleading of the statutory cause of action, on similar facts). [23] In similar circumstances amendments were allowed in Agtrack and Air Link. Each of the Victorian judges, and a majority of the New South Wales Court of Appeal, held that pleadings commenced within the two year period could be amended after the expiry of that period, as the amendments were procedural and related back to the filing of the original claim. Such a process was not forbidden by the emphatic provisions derived from the Warsaw Convention, which say that the cause of action is extinguished at the end of the two years. [24] If the Victorian and New South Wales decisions are to be applied here, it is easy to see that the amendments should be allowed. The defendant has no practical merits on its side. It should have known the true position about the facts and the law, and there is no prejudice to it. The Queensland Cases -- 9 of 13 -- 10 [25] It was submitted that this court should follow Cullinane J’s decision in Staples. The question is, what would he have decided, in the light of changes to the rules of court, significant decisions in New South Wales and Victoria, and with the benefit of the comprehensive submissions which were made in this case? UCPR 376 now makes clear the conditions under which an amendment may be made by leave, even though it includes a new cause of action and it is made after the end of a period of limitation. The amendment may be made if the court considers it appropriate, and the new cause of action arises out of substantially the same facts. The new rules have left behind the particular caution demanded by Weldon v Neal – see the decisions in Draney v Barry [2002] 1 Qd R 145 (Court of Appeal) and Jerome v Hill [2001] 1 Qd R 496 [26] Mr Justice Cullinane thought that the same principles must apply, where the cause of action is sought to be raised by the addition of a party to existing proceedings or by way of amendment against an existing party. He considered that he was bound by the judgment in Stumann. [27] However, both Stumann and Teys were decisions dealing with applications to join a party out of time. They were not applications to amend existing proceedings against the same party. As is made clear in Lynch v Keddell (No 2) [1990] 1 Qd R 10, there is a significant distinction between two situations. When a new party is joined, there can be no question of the order relating back to the date of the original proceedings. The following extracts, from the judgment of the Chief Justice (McPherson J agreeing), make the point clear. The Chief Justice pointed out the distinction between amending proceedings to add a new cause of action (as in Adam v Shiavon [1985] 1 Qd R 1) and adding a new party: -- 10 of 13 -- 11 “It is easy to understand how it was concluded that when amendments to correct misnomers or to add causes of action are permitted under the closely regulated procedures of O 32 r 1(3)(5), it should be held that the right to plead the statute was gone, since O 32 r 1(2) clearly implies that this should be so. That after all is the whole point of making special provision for those cases and argument about the appropriateness of allowing amendment will, it might be expected, have proceeded the making of the order. … When an order is made adding a defendant out of time in the limited class of case which is permitted … is the right to plead the statute similarly gone … . There can only be one answer in such cases, at least where the right to joinder has been contested and the order for joinder has been made after argument heard on the matter. The apparent difficulty which has been felt arises from the rule that ordinarily a defendant who is joined is treated as becoming a party only at the date of joinder and no relation back operates to make him a party as from the writ or the commencement of the proceedings to which he has been introduced as a party. … the rule is different when amendments are made to proceedings between continuing parties. These are deemed to apply as from the commencement of the proceedings between the parties … (Macrossan CJ). [28] In his reasons Derrington J was concerned to distinguish between the different rules that might apply to adding a defendant out of time, compared to amending existing proceedings against the same defendant to add a new cause of action. [29] In Agtrack, Ashley JA discussed that aspect of the Staples decision: “I doubt, with respect, that it was right to say that the significance of extinguishment was necessarily the same whether it was to add a party or to amend a claim. Regardless whether it involved a different regime, it highlighted the significance of the relation back principle in the latter class of case.” [30] An application identical to this one was considered by Master Anderson of the Supreme Court of Western Australian, in Samways v Ansett Australia Ltd (2001) WASC 140. The application to amend by adding the statutory cause of action was successful. The defendant submitted that Staples should be followed. The Master said: -- 11 of 13 -- 12 “There is a clear distinction to be drawn between the situation which arose in Stumann and the matter under consideration in Staples. With respect to his Honour I can see very little connection between the two fact situations. In Staples the correct party had been sued. It was simply a case that no mention had been made in the indorsement of claim or in the statement of claim of the applicable legislation. Stumann says nothing on that question whatever. In my view it was irrelevant to the matter to be decided by his Honour.” [31] Now that consideration has to be given to the decisions in Agtrack and Airlink, it can be seen that it would be proper to follow the Victorian and New South Wales approaches. No longer should there be caution in reaching the same conclusion as that reached by the New South Wales Court of Appeal in Proctor v Jetways Aviation Pty Ltd [1984] 1 NSWLR 166. Any differences in the various rules of court are unimportant and should certainly not dictate a different conclusion in this state. The Rules of Court [32] UCPR Rule 387(2) only applies to causes of action arising after proceedings have been started. Where a cause of action arises before a proceeding was started (as in this case) the amendment takes effect on and from the date of the document that was amended – that is, 27 June 2001. Rule 387 makes it clear that an order to add an existing cause of action takes effect from the date of the document. The law in Queensland reflects the common law and is the same as in New South Wales and Victoria. [33] In the exercise of the court’s discretion, the application should be allowed. (a) Order that the plaintiff be granted leave to amend the claim and statement of claim filed on 27 June 2001, substantially in accordance -- 12 of 13 -- 13 with the letter of 4 August 2003, Exhibit “C” to the affidavit of Ann- Marie Coulin filed herein on 7 November 2003. (b) Order that two-thirds of the costs of and incidental to the application be the plaintiff’s costs in the cause. -- 13 of 13 --