Constantinidis v Kehagiadis (No. 2) - [2011] NSWSC 1226

Supreme Court

New South Wales

Medium Neutral Citation: Constantinidis v Kehagiadis (No. 2) [2011] NSWSC 1226
Hearing dates: 4 November 2011
Decision date: 04 November 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The proceedings are dismissed.
(2) The Plaintiffs are to pay the Defendants costs of the proceedings.

Catchwords: PROCEDURE - application to file amended statement of claim - application follows earlier judgment striking out statement of claim - history of unsatisfactory pleading - whether further opportunity should be given to replead - proceedings dismissed.
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Constantinidis v Kehagiadis [2011] NSWSC 974
Category: Procedural and other rulings
Parties: George Constantinidis (First Plaintiff)
Gemma Constantinidis (Second Plaintiff)
Meropi Kehagiadis (Defendant)
Representation: Self represented (Plaintiffs)
M Dicker (Defendant)
Self represented (Plaintiffs)
Colin Biggers & Paisley (Defendant)

File Number(s): 2009/297696

Judgment

On 2 September 2011 I delivered judgment on the Plaintiff's Notice of Motion filed 30 June 2011 seeking leave to amend the Statement of Claim in the form annexed to the Notice of Motion: see Constantinidis v Kehagiadis [2011] NSWSC 974.

I dismissed that Notice of Motion. I further ordered that any further application to file a Statement of Claim or an Amended Statement of Claim be confined to the claims contained in section (2) of that judgment, and that any further application to amend the Statement of Claim was to be filed by no later than 4 October 2011.

On 4 October 2011 the Plaintiffs filed a Notice of Motion seeking leave to file an Amended Statement of Claim in the form annexed to the Notice of Motion.

Contrary to the orders I made on 2 September 2011 the proposed Amended Statement of Claim was not confined to the causes of action discussed in section (2) of my earlier judgment. It sought to replead a large number of the matters that I held in the earlier judgment were untenable or hopeless claims.

In relation to the matters in section (2) of my judgment, the Plaintiffs have, for the most part, repleaded matters pleaded in the earlier form of the proposed Amended Statement of Claim but have added a number of particulars to some of the paragraphs. This section of the proposed pleadings still suffers from a number of the problems to which the Defendant drew attention when the earlier Motion was argued before me on 28 July 2011. It contains paragraphs which appear to bear no relationship to the claim being made and, in that regard, are embarrassing as that word is understood in the Rules.

Further, contrary to what I directed in my earlier judgment, the claim in relation to the Victims Compensation has again been included as a particular of the loss associated with the first cause of action pleaded arising out of the Ms Saglimbeni assault rather than as a separate cause of action.

A further difficulty is that the claims arising out of this assault are only matters in respect of which the First Plaintiff, George Constantinidis,…

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.

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Details

Case: [2011] NSWSC 1226
Decision Date: 04 November 2011

CaseChat Overview and Summary

The parties in Constantinidis v Kehagiadis (No. 2) were Constantinidis, the applicant, and Kehagiadis, the respondent. The dispute involved an application by Constantinidis to file an amended statement of claim, which followed a previous judgment striking out the original statement of claim. The application was heard in the Supreme Court of South Australia. The court was tasked with deciding whether further opportunity should be given to the applicant to replead, given the history of unsatisfactory pleading.

The legal issue before the court was whether the applicant should be granted leave to amend the statement of claim, after a previous attempt was struck out. The court needed to weigh the applicant's right to have their case heard against the need to maintain the integrity of the judicial process and the efficiency of the court system. This required a consideration of the circumstances of the case, including the history of the pleadings and the reasons for the previous striking out.

The court determined that the applicant's history of unsatisfactory pleading, coupled with the absence of a reasonable explanation for the defects, warranted the dismissal of the proceedings. The court found that the applicant had not demonstrated a sufficient basis for an amendment and that further opportunities to replead would be futile. Consequently, the application to file an amended statement of claim was dismissed, and the proceedings were terminated.

No further orders were made by the court beyond the dismissal of the application and the termination of the proceedings. The court's decision underscored the importance of clear and accurate pleadings, and the potential consequences for parties who fail to meet the required standards.

Orders