Papua New Guinea Law Reports - 1976
[1976] PNGLR 298
N57
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HOWARD
V
BOUGAINVILLE COPPER LIMITED
Rabaul
Raine J
19 July 1976
PRACTICE AND PROCEDURE - Pleadings - Amendment - Amendment causing injustice to party opposing - Amendment having effect of barring action - Award of costs not providing any compensation - Principles to be applied - Supreme Court Rules O. XXII, r. 14 considered.
In an action for damages for personal injuries suffered at work the causes of action alleged being negligence and breach of statutory duty, the defendant sought on the morning of the day fixed for hearing, leave to amend the defence by adding a paragraph, pleading facts that would bring s. 15a of the Workers’ Compensation Act 1958 into play. Section 15a of the Workers’ Compensation Act provides that “the worker shall not bring an action” unless he has complied with certain prerequisites laid down in the section.
Held
Leave to amend should not be granted; to do so would put the plaintiff in a position where he could not be compensated in costs, or otherwise, and would cause injustice. G. L. Baker Ltd. v. Medway Building and Supplies Ltd., [1958] 3 All E.R. 540 at p. 546; Cropper v. Smith (1884) 26 Ch.D. 700 at pp. 710-711; Shoe Machinery Co. v. Cutlan, [1896] 1 Ch.D. 108 at p. 112; Tildesley v. Harper (1878) 10 Ch.D. 393 at pp. 396-397; Clarapede & Co. v. Commercial Union Association (1883) 32 W.R. 262 at p. 263; and Steward v. North Metropolitan Tramways Co. (1885) 16 Q.B.D. 178 at p. 180, referred to.
Action
On the day fixed for the hearing of a claim for damages for personal injuries suffered at work, where the causes of action alleged were negligence and breach of statutory duty, the defendant sought leave to amend his defence by adding a paragraph, pleading facts that would bring s. 15a of the Workers’ Compensation Act 1958 into play.
Counsel
JA Griffin for the plaintiff
T O’L Reynolds for the defendant
Cur. adv. vult.
19 July 1976
RAINE J:  In this case the plaintiff sues the defendant for injury suffered by him at work, and alleged to stem from both negligence and breach of statutory duty.
Mr. Griffin appears for the plaintiff, Mr. Reynolds for the defendant. It is not a small case; the plaintiff, a youngish man, lost an eye. The trial of the action was specially fixed by me for today; this was necessary, as counsel are from the Brisbane and Sydney bars respectively, some small way from here.
Mr. Reynolds only arrived in Rabaul last night, and apparently he and his attorney became aware at a late stage after their arrival that a defence under s. 15a of the Workers’ Compensation Act might have been pleaded, as it is believed that the plaintiff received workers’ compensation, but failed, as required, to give notice within six months thereof of his intention to bring an action. Section 15a provides further that an action should commence within twelve months after payment of compensation or the first payment of the same, and that “The worker shall not bring an action ...” unless he complies with these pre-requisites. Given all this the plaintiff must fail, should the necessary facts both be pleaded and proved.
Mr. Reynolds seeks to amend paragraph 5 of the defence by adding sub-paragraph (f), which pleads facts bringing s. 15a into play. As I have said, if the facts alleged are made out by the defendant then that would be an end of the action. The proposed pleading has been signed by me and placed with the papers, lest the matter go further.
Mr. Reynolds says that in the exercise of my discretion I should allow the amendment. He also submits, really on a jurisdiction basis, that I should not become seized of the matter once I become aware that this is the sort of action which, to adopt the words of s. 15a, “(a) worker shall not bring”. Rather the sort of situation where, without it being pleaded, the trial judge finds that a claim is based on an illegal consideration, but this does not attract me. I think there is a clear distinction between the attitude of a judge where, in the running, he sees illegality, as opposed to the situation where he is apprised of an unpleaded defence of this nature. Of course, Mr. Griffin opposes the application. So far as the exercise of my judicial discretion is concerned he draws attention to the plaintiff’s predicament “qua” costs and also to the fact that he was only informed of the amendment sought at 8.30 a.m. today. Also, the action was commenced in 1974.
Since the Court adjourned for a time I have found the judgments that I told counsel I believed bore on the exercise of my discretion.
The Annual Practice, 1966 at p. 454, under the heading “General Principles for Grant of Leave to Amend”, states: “It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings.” This is taken, not exactly, from the judgment of Jenkins L.J. in G. L. Baker Ltd. v. Medway Building and Supplies Ltd.[cccxxxiv]1.
Then, at p. 454 the Practice quotes from the judgment of Bowen L.J. in Cropper v. Smith[cccxxxv]2 where his Lordship said:
“Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. Order XXVIII, rule 1, of the Rules of 1883, which follows previous legislation on the subject, says that, ‘All such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.’ It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right”,
with which A. L. Smith L.J. expressed “emphatic agreement” twelve years later in Shoe Machinery Co. v. Cultan[cccxxxvi]3. (The underlining is mine.)
A well known passage, often quoted, is seen in Tildesley v. Harper[cccxxxvii]4 where Bramwell L.J. said:
“I have had much to do in Chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.” (Again the underlining is mine.)
In Clarapede & Co. v. Commercial Union Association[cccxxxviii]5 Brett M.R. said:
“However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.” (And again, and in the citation that follows, the underlining is mine.)
In Steward v. North Metropolitan Tramways Co.[cccxxxix]6 in the judgment of Pollock B., his Lordship said:
“The test as to whether the amendment should be allowed, is whether or not the defendants can amend without placing the plaintiff in such a position as he cannot be recouped, as it were, by any allowance of costs, or otherwise.”
See also the judgment of Manisty J., which deals with Tildesley v. Harper[cccxl]7 and Clarapede & Co. v. Commercial Union Association[cccxli]8.
It is interesting to note that Pollock B. concludes his judgment as follows:
“Here the action would be wholly displaced by the proposed amendment, and I think it ought not to be allowed. No doubt in saying so we take away from the defendants the right to defend themselves by this particular plea. But that is only one of many cases in which the Courts have said that if a defendant chooses to conduct his defence to a certain point on certain lines, and lead the plaintiff on into a certain position, the defendant has no right to change his front. That is only acting on the well-known doctrine of estoppel, and I think, in common fairness and equity, the defendants are estopped from saying they are not the proper defendants.”
This is just what Mr. Griffin argued, although, not unreasonably, for he was given absolutely no time for research, he did not support his argument with authority. Stewards’s case[cccxlii]9 is rather similar to the instant one, although not exactly so.
Mr. Griffin did rely heavily on O. XXII, r. 14 of the Rules of the Supreme Court, which reads:
“Each party must raise by his pleading all matters of fact which show that the claim of the opposite party is not maintainable, or that a transaction is either void or voidable in point of law; and all grounds of defence or reply, as the case may be, must be pleaded which, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, release, payment, performance, facts showing illegality either by statute or common law, or the ‘Statute of Frauds and Limitations of 1867’, or any other Statute of Limitations.”
Without deciding, for I do not find it necessary to do so, I must say I am attracted by counsel’s reliance on the Rule, and its concluding words “or any other Statute of Limitations”.
This matter has troubled me sorely. I have no doubt that there have probably been payments of workers’ compensation to the plaintiff. Mr. Reynolds is highly experienced in this field of litigation; however, having only got to Rabaul last night, he is, as I understand it, unable to give me and his opponent an absolute assurance, also, I rather gather, there could just possibly be some argument whether payments made were in the nature of workers’ compensation. Probably some payments were made; I know that workers at Panguna are covered by workers’ compensation. But it is something that has to be proved, and Mr. Reynolds cannot lead the evidence, so it seems, without calling the plaintiff, the last thing I would imagine he would wish to do. I appreciate that the defendant, in cross-examination, might obtain admissions from the plaintiff. However, they might be unsatisfactory, and leave open the question whether the payments were under the Statute, or “ex gratia”.
I will assume the defence is available. That will mean an adjournment. That can be cured by costs. But in the ultimate no costs can provide solatium to the plaintiff if this statutory defence is permitted to go on at this very late stage. It bars the action. I think that this is the very sort of case referred to in some of the authorities quoted above.
But I have come to the view that the application must fail. In my view this late defence, if permitted, would put the plaintiff in a position where, as Pollock B. said (supra) “he cannot be recouped, as it were, by any allowance of costs, or otherwise.” I refuse the amendment sought.
Amendment refused.
Solicitor for the plaintiff: F. N. Warner Shand & Wilson.
Solicitors for the defendant: McCubbery Train Love & Thomas.

[cccxxxiv][1958] 3 All E.R. 540 at p. 546.
[cccxxxv](1884) 26 Ch.D. 700 at pp. 710-711.
[cccxxxvi][1896] 1 Ch.D. 108 at p. 112.
[cccxxxvii](1878) 10 Ch.D. 393 at pp 396-397.
[cccxxxviii](1883) 32 W.R. 262 at p. 263.
[cccxxxix](1885) 16 Q.B.D. 178 at p. 180.
[cccxl](1878) 10 Ch.D. 393.
[cccxli](1883) 32 W.R. 262.
[cccxlii](1885) 16 Q.B.D. 178.