Fitzpatrick v Sydney Property Inspections (NSW) Pty Ltd
[2014] NSWDC 344
•05 November 2014
District Court
New South Wales
Medium Neutral Citation: Fitzpatrick v Sydney Property Inspections (NSW) Pty Ltd [2014] NSWDC 344 Date of orders: 05 November 2014 Decision date: 05 November 2014 Jurisdiction: Civil Before: COGSWELL SC DCJ Decision: Orders sought in the applicant’s Notice of Motion granted.
Catchwords: CIVIL LAW – procedure – application for leave to join party to proceedings – whether irreparable prejudice – reasonable explanation for delay – parties acting on their rights Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Category: Procedural and other rulings Parties: Angela Fitzpatrick (Applicant 1)
Conor Fitzpatrick (Applicant 2)
Sydney Property Inspections (NSW) Pty Ltd (Respondent 1)
Geoffrey Thomas Sweetland (Respondent 2)Representation: Counsel:
Solicitors:
T Brennan (Applicants)
B Mee (Respondents)
Holding Redlich (Applicants)
Hillman Lawyers (Respondents)
File Number(s): 2013/00159307
Judgment
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This is an application to amend pleadings. The application is to add a party to the proceedings. So it is a significant amendment.
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Section 58 of the Civil Procedure Act 2005 (NSW) requires me, in deciding what order to make, to "seek to act in accordance with the dictates of justice". The dictates of justice are elaborated in s 58(2). They include reference to ss 56 and 57 of the same Act. Section 57 requires proceedings to be managed having regard to the just determination of the proceedings and the efficient disposal of the business of the court. Efficient use must be made of available judicial and administrative resources and proceedings must be disposed of in a timely manner. There are other matters which are relevant in guiding my decision. They are referred to in s 58(2).
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In this case the plaintiffs are suing the defendant for assertions made and conduct said to have occurred regarding a property inspection. The plaintiffs sued the property inspection company and an employee. In January this year the plaintiffs sought to join the sole director of the company, who is also the wife of the employee who was already a party. The defendants wrote to the plaintiffs in January pointing out that the attempt to join the wife was "improperly pleaded and, in its current form, is liable to be struck out." They invited the plaintiffs to "reconsider re‑pleading." There was then a telephone conversation between the solicitor for the plaintiffs and the solicitor for the defendants. The solicitor for the plaintiffs agreed not to proceed with the amendment.
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Some six months later the same person who was going to be joined, namely the wife who was the director of the company, filed an affidavit in the proceedings. That affidavit contained information, so the plaintiffs say, which plugged the gap which had emerged in January and which affected their decision not to proceed with the amendments.
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Mr T Brennan of counsel who appeared today for the plaintiffs explained the legal significance of the problems which were confronted by his client in pressing ahead with the amendments in January. As I observed during the hearing, the evidence, including correspondence, does not disclose the basis upon which both solicitors were evidently satisfied that the pleadings as they stood in January were incompetent.
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A month or two after getting the affidavit, the plaintiffs now wish to make substantially the same amendments. They want to join the wife, who is the sole director of the first defendant company, and plead the same cause of action against her in substantial terms. The defendants object to this course and oppose the amendment.
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Mr B Mee of counsel who appears for the defendants makes three substantial arguments. The first is that the plaintiffs made a tactical decision in January not to proceed with amendments which were substantially the same. The second is that no explanation has been provided for the change. The third is that there will be irreparable prejudice.
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Mr Mee is right about the deliberate tactical decision. But it seems to me that the basis for the decision has been satisfactorily explained by Mr Brennan. Regrettably those reasons were not exposed at the time that the decisions were made.
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I am satisfied that an explanation has been provided. I think that the plaintiffs could have been more expeditious than they have been in proposing the amendment sooner after receiving the statement of claim. Nevertheless, they have provided an explanation and attempted to resolve it by correspondence.
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The irreparable prejudice point is powerful. The second defendant named - who is the husband of the person proposed to be joined and an employee of the first defendant - is gravely ill. His life expectancy is limited to months rather than years. As a matter of common sense this will obviously cause a great deal of stress which will not help his condition. In addition of course, the person proposed to be joined is his wife.
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Further argued prejudice is that there is no clear evidence of the capacity of the plaintiffs to pay for any costs for which they become liable.
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Thirdly, the affidavit, when it was filed by the woman who is now sought to be joined, was on the basis that she was not a party, but a witness.
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Against this Mr Brennan acknowledges fairly the significance of the medical condition of the second defendant. However, he says his clients have little choice in the matter. Should the amendment be refused they are still within time to commence separate proceedings against the woman. Mr Mee argues that there may be arguments available regarding abuse of process if that course is taken.
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I think both counsel make fair points. I can see the necessity of the plaintiffs having to join the woman in their own interests. I think that the applications about abuse of process would also be appropriate but at the same time would generate more stress in interlocutory activity. Although these circumstances are very regrettable, there are explanations which have to do with assessment
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by parties of their rights and acting on them. I think the more efficient course is to join the woman now, but to order the plaintiffs to pay any costs thrown away and to order them to pay before any further steps are taken in the proceedings.
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This has not been an easy decision because there is prejudice and there has been delay. But one of the matters that I have to take into account very much is, of course, justice and I must accord justice to the plaintiffs. They have provided an explanation for their decision which is not unreasonable.
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For those reasons, I propose to grant the orders sought in the notice of motion.
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Formally, I grant the orders sought in para 1 and para 2 of the notice of motion. I should add that the further amended statement of claim is to be filed and served on or before 19 December 2014. I make the orders set out in paras 2, 4, 5, 6 and 7 signed and sealed by me and dated today.
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Decision last updated: 15 July 2015
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