Clarke (previously Naicker) v Herrick

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.