Report No. 89
III Australia and Canada
30.17. Hardship of the rule in Weldon v. Neal, being realised in Australia.- The position in Australia may now be dealt with. In a recent article in the Australian Law Journal,1 the writer has listed the hardships which the rule in Weldon v. Neal, creates for a plaintiff who desires to amend the statement of claim after the expiry of the limitation period. He observe.-
"Although the relevant provisions of the Supreme Court Rules have been amended in England2 and in some Australian jurisdictions3 to displace (at least partially) this settled rule of practice, the rule in Weldon v. Neal, still applies in Victoria, Tasmania, the Australian Capital Territory, the Northern Territory and in actions governed by the present High Court Rules.
It is the purpose of this article to discuss the difficulties experienced by the courts in defining the exact scope of the rule with particular reference to a line of decisions of the Victorian Supreme Court and to argue that, in the light of the present interpretation of the rule, it should be replaced..."
A comparison of the position in England and New South Wales is found in an English case.4
1. Susan Campbell Amendment and Limitations: The Rule in Weldon v. Neal, (Nov. 80) 54 Australian LJ 643 (644). Footnotes given in the original article are omitted, except a few.
2. R.S.C. Order 20, rule 5.
3. N.S.W., Pt. 20, rule 4; Queensland, Order 32, rule 1; South Australia, Order 28, rule I; Western Australia, Order 21, rule 5.
4. Brickfield Properties Ltd. v. Newton, (1971) 1 WLR 862 (CA).
30.18. In Canada, Lord Denning's observations in the later case1 have been followed by the Federal Court of Canada,2 in a case in which an amendment was allowed alleging a different voyage and different bills of lading, though originally the claim for damage to goods carried was based on a specific voyage and no specific bills of lading of a particular case.
1. Chatsworth Investment Ltd. v. Cussins (Contractors) Ltd., (1969) 1 All ER 143 (145).
2. Can Motor Sales Corp. Ltd. v. Madonna, 24 DLR (3rd) 593.
30.19. Saskatchewan Law.- In Canada, the Saskatchewan, jurisdiction has gone a step further. The Queen's Bench Act1 provides as unde.-
"Where an action is brought to enforce any right, legal or equitable, the court may permit the amendment of any pleading or other proceeding therein upon such terms as to costs or otherwise as it deems just, notwithstanding that, between the time of the issue of the writ and the application for amendment, the right of action would, by reason of action brought, have been barred by the provision of any statute; provided that such amendment does not involve a change of parties other than a change caused by the death of one of the parties."
Unfettered discretion given by the Saskatchewan law to the courts to permit amendments has been severally criticised2 as going too far, because it is pointed out that the primary consideration underlying the Limitation Act is that the defendant ought not to be called on to resist a claim when evidence has been lost, memories have faded and witnesses have disappeared.
1. Section 44(11), Saskatchewan Queens Secret Act, (1965) (Ch. 73).
2. Cary D. Watson Amendment of Proceedings After Limitation Periods, 53 Canadian Bar Review 237.
30.20. Alberta Act.- If the Saskatchewan law grants blanket power of amendment to the court the Alberta Limitation of Actions Act, (R.S.A. 1970, Chapter 209) in its section 61, gives a long list of various 'types' of situations which have given rise to difficulties in the past such as misnomers, cases involving dead persons, etc., in which the courts may allow amendments to the pleadings notwithstanding the expiration of the period of limitation.
30.21. Ontario Law Reform Commission's Report.- In 1969 the Ontario Law Reform Commission in its Report on the Limitation of Actions, recommended that:
"In any action, the court should be able to allow the amendment of any pleading or other proceedings, or an application for a change of party, upon such terms as to costs or otherwise as the court deems just, notwithstanding that, between time of the issue of the writ and the application for amendment or change of party, a fresh cause of action disclosed by the amendment or the cause of action against the new party would have been barred by a limitation provision."1
1. Ontario Law Reform Commission Report on the Limitation of Actions, 1969.