Clarke (previously Naicker) v Herrick

Case [2017] NSWDC 302

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Clarke (previously Naicker) v Herrick [2017] NSWDC 302
Hearing dates: 5 October 2017
Date of orders: 02 November 2017
Decision date: 02 November 2017
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Plaintiff’s application to change her surname on both JusticeLink and the statement of claim to “Clarke”, to change particulars (k) and (l) in relation to the assault claim and to add paragraph 11 to the statement of claim is granted.
(2) Plaintiff’s application to amend the Amended Statement of Claim to replace the current three named defendants with the name “Vanessa Madunic” is dismissed.
(3) Plaintiff pay defendants' costs.
(4) Liberty to apply in relation to costs.
(5) The parties are to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings, including: (a) The change to the plaintiff’s surname; (b) The amended pleadings for the assault agreed to by the defendant; (c) The plaintiff’s Notice of Motion filed on 3 October 2017 and any challenge to the proposed continuation of the claim as against the three currently named defendants (including any challenges in relation to the matter complained of); and (d) If the defamation claim is abandoned, orders for the transfer of these proceedings to the General List for directions concerning the assault claim, including a return date for whichever list the proceedings remain in.

Catchwords: TORT – defamation – application pursuant to ss 64 – 65 Civil Procedure Act 2005 (NSW) to bring proceedings out of time against a newly named defendant in place of the three named defendants – whether amendment on the basis of misnomer should be permitted – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62, 64 and 65
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 42.1
Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Barach v University of New South Wales [2011] NSWSC 1327
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Campbell v Boston (Supreme Court of New South Wales, Levine J, 17 February 1995)
Drinkwater v Barwon Health Services & Butler (Supreme Court of New South Wales, Levine J, 27 June 1996)
Emmerton v University of Sydney [1970] 2 NSWR 633
Greenwood v Papademetri [2007] NSWCA 221
In the matter of RCG CBD Pty Ltd [2016] NSWSC 1937
Miller v RL Polk & Co (Australia) Pty Ltd (New South Wales Supreme Court, Hunt J, 4 July 1985)
New South Wales v Radford (2010) 79 NSWLR 327
Riddick v Thames Board Mills Ltd [1977] QB 881
Sapphire (SA) Pty Ltd t/as River City Grain v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
Sullivan v Van der Broek [1999] NSWSC 1177
Category:Procedural and other rulings
Parties: Plaintiff: Sharmain Clarke (previously Naicker)
First Defendant: Julie Herrick
Second Defendant: Susan Dale
Third Defendant: Virginia King
Representation:

Counsel:
Plaintiff: Mr R Potter
Defendants: Mr D Sibtain

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AGLC
Clarke (previously Naicker) v Herrick [2017] NSWDC 302
Case
[2017] NSWDC 302
Decision Date

CaseChat Overview and Summary

The case of Clarke (previously Naicker) v Herrick involved a defamation claim brought against three named defendants, with the plaintiff seeking to amend the proceedings to include a new defendant, Vanessa Madunic. The application was made pursuant to sections 64 and 65 of the Civil Procedure Act 2005 (NSW) to bring the proceedings out of time against the new defendant in place of the original three. The legal issues before the court were whether the amendment on the basis of misnomer should be permitted and if there was any issue of principle that would prevent such an amendment. The court was also required to determine whether the plaintiff's application to change her surname and particulars in relation to the assault claim should be granted.

The court held that the plaintiff's application to change her surname on both JusticeLink and the statement of claim to "Clarke" and to change particulars (k) and (l) in relation to the assault claim was granted. The court also granted the plaintiff's application to add paragraph 11 to the statement of claim. However, the court dismissed the plaintiff's application to amend the Amended Statement of Claim to replace the current three named defendants with the name "Vanessa Madunic". The court held that there was no issue of principle that would prevent such an amendment but found that the application should be dismissed due to the plaintiff's failure to comply with the court's directions. The plaintiff was ordered to pay the defendants' costs, and liberty to apply in relation to costs was granted. The parties were required to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings.

In summary, the court granted some of the plaintiff's applications but dismissed the application to amend the Amended Statement of Claim to replace the current three named defendants with the name "Vanessa Madunic". The plaintiff was ordered to pay the defendants' costs, and liberty to apply in relation to costs was granted. The parties were required to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings.

Orders

Orders of the court

(1) Plaintiff’s application to change her surname on both JusticeLink and the statement of claim to “Clarke”, to change particulars (k) and (l) in relation to the assault claim and to add paragraph 11 to the statement of claim is granted.

(2) Plaintiff’s application to amend the Amended Statement of Claim to replace the current three named defendants with the name “Vanessa Madunic” is dismissed.

(3) Plaintiff pay defendants' costs.

(4) Liberty to apply in relation to costs.

(5) The parties are to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings, including: (a) The change to the plaintiff’s surname; (b) The amended pleadings for the assault agreed to by the defendant; (c) The plaintiff’s Notice of Motion filed on 3 October 2017 and any challenge to the proposed continuation of the claim as against the three currently named defendants (including any challenges in relation to the matter complained of); and (d) If the defamation claim is abandoned, orders for the transfer of these proceedings to the General List for directions concerning the assault claim, including a return date for whichever list the proceedings remain in.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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