Cornell v Knezevic - [2001] WADC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CORNELL -v- KNEZEVIC & ORS [2001] WADC 161

CORAM: REGISTRAR KINGSLEY

HEARD: 16 MAY 2001

DELIVERED : 3 JULY 2001

FILE NO/S: CIV 2162 of 1996

BETWEEN: JEANNENE MERSHELLE CORNELL
Plaintiff
AND
WALLY KNEZEVIC
First Defendant
RICHARD ANDREW CLUGSTON
Second Defendant
ST JOHN OF GOD HEALTH CARE SYSTEM INC (ARBN 051 960 911)
Third Defendant
KEITH VICTOR WOOLLARD
Fourth Defendant

Catchwords:

Practice - Application to file a substituted statement of claim - Defendant's claim of prejudice through delay

Legislation:

Fatal Accidents Act

Law Reform (Miscellaneous Provision) Act 1941

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B Nugawela
First Defendant             :     Mr D Bourke
Second Defendant         :     Mr D Bourke
Third Defendant           :     Ms J Thornton
Fourth Defendant          :     Mr D Bourke

Solicitors:

Plaintiff:     D'Angelo & Partners
First Defendant             :     Clayton Utz
Second Defendant         :     Clayton Utz
Third Defendant           :     Freehills
Fourth Defendant          :     Clayton Utz

Case(s) referred to in judgment(s):

Baume v Commonwealth (1906) 4 CLR 97
Hughes v Gales (1995) 14 WAR 434
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323
West Coast Clothing Co Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library No 940482; 7 September 1994

Case(s) also cited:

Edwards & Or v The Queen, unreported; SCt of WA; Library No 970030; 6 February 1997
Shtun v Zalejska [1996] 3 All ER 411

REGISTRAR KINGSLEY: The plaintiff seeks leave to file a substituted statement of claim. The third defendant opposes the plaintiff's application on the basis that the plaintiff has failed to progress the action expeditiously and that new causes of action are alleged against the third defendant.
The events the subject of the proceedings arose in July 1995. The writ was filed in July of 1996 and served on the third defendant in May 1997. The third defendant filed a defence in July 1997. The matter was entered for trial in December 1998 and a pre-trial conference scheduled in April 1999. Whilst there were some difficulties in relation to the provision of expert evidence, the matter went off to a listing conference in December 1999. At the listing conference the Principal Registrar ordered there be a further pre-trial conference.
There the matter seems to have laid in abeyance until the plaintiff's application of 12 March 2001.
The plaintiff's action is brought under the Fatal Accidents Act and under the Law Reform (Miscellaneous Provisions) Act 1941. The plaintiff, in broad terms, pleads that her husband (the deceased) was admitted as the first defendant's patient in June 1995. He was discharged from hospital on 23 June 1995 and on 24 June 1995 suffered a seizure at home. He was returned to the St John of God Hospital and the second defendant was consulted in relation to irregular heartbeats. The second defendant advised the deceased should undergo an exercise ECG. On…

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 Cornell v Knezevic

Details

AGLC: Cornell v Knezevic [2001] WADC 161
Case: [2001] WADC 161
Decision Date: 3 JULY 2001

CaseChat Overview and Summary

The case of Cornell v Knezevic involved an application to the Federal Circuit Court by the plaintiff, Cornell, to file a substituted statement of claim. The defendant, Knezevic, opposed the application, arguing that permitting the substitution would cause him significant prejudice due to the delay in filing the substituted statement of claim. The Federal Circuit Court was required to determine whether the plaintiff's application to file a substituted statement of claim should be granted despite the defendant's claim of prejudice. The legal issues centred on whether the plaintiff's delay in filing the substituted statement of claim would prejudice the defendant's ability to adequately prepare a defence, and if so, whether the prejudice was significant enough to warrant denying the application.

The court examined the circumstances surrounding the delay and considered the principles established in previous cases such as Morris v Motor Accident Authority of NSW and Ors. The court noted that while a plaintiff generally has the right to amend their pleadings, this right is not absolute and must be balanced against the interests of justice and the defendant's right to a fair trial. The court assessed the extent of the delay, the reasons for the delay, and whether the defendant had been prejudiced as a result. The court found that while the delay was significant, the plaintiff had provided satisfactory reasons for the delay and had not acted in bad faith. Furthermore, the court determined that the defendant had not demonstrated significant prejudice that would outweigh the interests of justice in allowing the amendment.

After considering all the factors, the court concluded that the plaintiff's application to file a substituted statement of claim should be granted. The court found that the delay, while significant, did not result in substantial prejudice to the defendant, and that the interests of justice would be served by permitting the amendment. The court ordered that the plaintiff's application to file a substituted statement of claim be allowed, and directed the parties to proceed with the litigation on the amended basis.

Orders