Barrie v Wilsmore - [2025] NSWSC 1196

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barrie v Wilsmore [2025] NSWSC 1196
Hearing dates: 3 October 2025
Date of orders: 13 October 2025
Decision date: 13 October 2025
Jurisdiction: Common Law
Before: McGuire J
Decision:
(1) Grant leave to the plaintiff to file by 17 October 2025 a second further amended statement of claim in the form as proposed under cover of the plaintiff’s solicitor’s letter to the defendant dated 18 September 2025.
(2) Grant leave to the plaintiff to rely on the expert report of Fiona Corbet, registered nurse, dated 31 August 2025 and extend time pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) for the service of that report.
(3) Vacate the hearing listed to commence on 17 November 2025.
(4) List the matter for mention on 6 February 2026 in the professional negligence list for status review and readiness hearing with a view to the matter being listed for hearing.
(5) Grant the parties liberty to apply on three days notice.
(6) The plaintiff to pay the defendant’s costs thrown away.

Catchwords:
CIVIL PROCEDURE — Professional Negligence — Pleadings — Amendment — where amendments to pleading are substantial — where plaintiff seeks to add a new defendant as a party to the proceedings — where recent expert reports provide a proper evidentiary basis for the proposed amendments — where no prior expert report addresses the issues raised by the proposed amendments — where vacation of hearing required — prejudice cured by costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Uniform Civil Procedure Rules 2005 (NSW), r 1.12

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Kelly v Mina [2014] NSWCA 9

Category: Principal judgment
Parties: Paul Barrie (Applicant)
Bradley Wilsmore (Respondent)
Representation:
Counsel:
Mr S Grey (Applicant)
Ms J Sandford with Ms C Coventry (Respondent)
Solicitors:
Slater and Gordon (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2021/00263947

JUDGMENT

By notice of motion dated 29 September 2025 the plaintiff seeks orders:

for leave to rely on an expert report of Fiona Corbet, registered nurse, dated 31 August 2025;

for leave to file a second further amended statement of claim, in the form as proposed under cover of the plaintiff’s solicitor’s letter to the defendant dated 18 September 2025; and

that the plaintiff pay the defendant’s costs thrown away.

Counsel for the plaintiff conceded that if the orders sought in the notice of motion were made the hearing listed for 10 days commencing on 17 November 2025 would need to be vacated as a consequence.
The orders sought, including a vacation of the hearing dates, were opposed by the defendant.
The proceedings are brought by the plaintiff alleging a cause of action based on negligence against his former cardiologist. The relevant conduct occurred in August and November 2014 and in May 2018. The proceedings were commenced in September 2021 and were fixed for a hearing commencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrie v Wilsmore

Details

AGLC: Barrie v Wilsmore [2025] NSWSC 1196
Case: [2025] NSWSC 1196
Decision Date: 13 October 2025

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Barrie v Wilsmore involved a dispute over professional negligence, specifically regarding amendments to pleadings. The plaintiff sought to introduce new defendants and substantially alter the pleadings, which would introduce new claims. The court had to determine whether the proposed amendments were permissible and whether the plaintiff's request could be accommodated without undue prejudice to the defendants. The central issue was whether the court could allow the plaintiff to amend the pleadings to include new defendants based on recent expert reports, which provided a proper evidentiary foundation for the proposed changes, despite the absence of prior expert reports addressing the issues.

The court held that the amendments were substantial and required the vacation of the hearing. The court acknowledged that the amendments introduced new defendants and significantly altered the pleadings, which warranted a careful assessment of the potential prejudice to the defendants. However, the court noted that the plaintiff's expert reports provided a proper evidentiary basis for the proposed amendments and that no prior expert report addressed the issues raised by the amendments. The court concluded that the prejudice could be mitigated by the imposition of costs, thereby curing any potential prejudice to the defendants. The court allowed the amendments, subject to the imposition of costs to the plaintiff to compensate the defendants for any prejudice caused by the delay and additional costs incurred.

The court's reasoning was grounded in the principles of procedural fairness and the need to ensure that justice is served. By allowing the amendments, the court provided the plaintiff with an opportunity to present their case fully and fairly, while also protecting the defendants from undue prejudice. The imposition of costs served to balance the scales and ensure that the defendants were not disadvantaged by the amendments. The court's decision reflects a balanced approach to the management of proceedings, recognising the importance of procedural flexibility while also safeguarding the rights of all parties involved. The court's final orders allowed the plaintiff to amend the pleadings to include the new defendants, subject to the imposition of costs to the plaintiff to compensate the defendants for any prejudice caused by the delay and additional costs incurred.

Orders