Leave to plead – fresh causes of action or material fact alone

Hartnett v Hynes [2010] QCA 65

The facts concern a partnership dispute.

His Honour Muir JA delivered the leading judgment of the court with their Honours Daubney and P Lyons JJ concurring.

The principle as what amounts to a fresh cause of action as opposed to a material fact to be provided was usefully summarised as follows:


There is a real question as to whether paragraphs 7G and 7H, used in the manner just discussed, and making, as they do, positive allegations give rise to fresh causes of action. The principles relevant to such a determination are usefully discussed in the following passage from the reasons of McMurdo J in Borsato v Campbell & Ors,4 referred to with approval in the reasons of Keane JA in Wolfe v State of Queensland:5

“The term ’cause of action’ was defined in Cooke v Gill ((1873) LR 8 CP 107 at 116) as being ‘every fact which is material to be proved to entitle the plaintiff to succeed’, a definition which many judgments have employed in the context of this rule or its equivalent: see eg Allonnor Pty Ltd v Doran ([1998] QCA 372 at [3]) per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland ([2001] QCA 336 at [19]) subsequently endorsed as a ‘fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended’. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described. Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Sawmilling No. 1 Pty Ltd & Ors v State of Queensland ([2003] QCA 311).

In Thomas v State of Queensland, the Court of Appeal disallowed an amendment of a case brought by an injured motorcyclist against the State as the authority responsible for the highway on which he was injured. His case was that there was a large amount of soil on the road surface which caused his motorcycle to lose traction and collide with another vehicle. His claim was pleaded originally on the basis that the defendant had been undertaking road works at the scene which had resulted in this soil on the road. He sought to amend to claim that the soil was there because it had been washed from a nearby embankment in a way which was attributable to poor construction of the highway in the first place. The Court held that this was a new cause of action, saying in its joint judgment: (At [16])

‘The essential elements in a claim for damages for negligence are the duty of care, breach of that duty and injury caused by that breach. Here, although only for one injury an incident is alleged, different duties, different breaches and different causes of injury are now alleged. In our view the effect of the amendment is to include new causes of action.'”6

Consequently, leave to amend was given, but it was further ordered that particulars with respect to the paragraphs in dispute be provided within 14 days of judgment.

I refer you to the article in Proctor regarding the consideration of the High Court decision of Aon Risk Services Australia v Australian National University [2009] HCA 27.

4 [2006] QSC 191.

5 [2008] 1 QCA 113 at [17]

6 Borsato v Campbell & Ors [2006] QSC 191 at [8] – [10] (citations footnoted in original).  

Brisbane Barrister – David Cormack

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