Hamilton v Australian Capital Territory - [2011] ACTSC 45

IAN JAMES HAMILTON v AUSTRALIAN CAPITAL TERRITORY
AND DR TONY TONKS
[2011] ACTSC 45 (22 March 2011)

PRACTICE AND PROCEDURE – pleading – amendment – whether amendment pleading evidence should be permitted – amendment not permitted – amendment permitted to plead material facts.
PRACTICE AND PROCEDURE – pleading – particulars – amendment – power to amend particulars – when particulars should be amended – amendments permitted.

Court Procedures Rules 2006 (ACT), rr 1303, 503, 432, pt 2.14

Helmhout v Apostoloff and Ors [2011] ACTSC 2
Beach Petroleum NL and Anor v Johnson and Ors (1991) 105 ALR 456
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237
Barclay Mowlem Constructions Ltd v Dampier Port Authority (2006) 33 WAR 82
Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271
Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
US Fidelity & Guaranty Co v Boland [1957] OWN 237
Bruce v Odhams Press Ltd [1936] 1 KB 697
Weldon v Neal (1887) 19 QBD 394
Golski v Kirk (1987) 14 FCR 143
Meredith v Commonwealth of Australia [2009] ACTSC 168
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Dare v Pulham (1982) 148 CLR 658
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Katsilis v Broken Hill Pty Co Ltd (1978) 52 ALJR 189

Walmsley SL, SC, DCJ, Abadee, A and Zipser, B, Professional Liability in Australia (Lawbook Co: Sydney, 2007) 2^nd edition, pp 985-7
Young, PW, Keller HDH, Walton, M (eds) Court Forms, Precedents and Pleadings New South Wales, (LexisNexis Butterworths: Sydney, 2003) looseleaf, p 60,131
Blain, W, Lord Brennan, Jacob, J, Langstaff, J (eds) Bullens Leake and Jacobs Precedents of Pleadings (Sweet & Maxwell: London, 2008) 16^th edition, pp 1407-8
Seaman, PL Supreme Court Practice Western Australia (LexisNexis Butterworths:
Sydney, 1990), looseleaf, [20.0.3]

No. SC 359 of 2005

Judge: Refshauge J
Supreme Court of the ACT

Date: 22 March 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 359 of 2005
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:IAN JAMES HAMILTON

Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY

First Defendant

DR TONY TONKS

Second Defendant

ORDER

Judge:  Refshauge J
Date:  22 March 2011
Place:  Canberra

THE COURT ORDERS THAT:

Subject to orders 2 and 3, the plaintiff have leave to amend the Amended Statement of Claim in accordance with the draft attached to the Application in Proceedings filed on 30 November 2009 and heard on 30 August 2010.

The plaintiff not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings filed on 30 November 2009 as heard on 30 August 2010.

The plaintiff have…

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] ACTSC 45
Decision Date

CaseChat Overview and Summary

The plaintiff, Ian James Hamilton, sought damages for injuries sustained in a motor vehicle accident, which occurred on 4 April 1996. Hamilton alleged that the negligence of the first defendant, the Australian Capital Territory, through its Community Nursing Service, and the second defendant, Dr Tony Tonks, caused him to suffer pressure ulcers. The trial of the claim commenced on 1 July 2009, but was adjourned because Hamilton wished to amend his amended statement of claim. The defendants opposed the proposed amendments. Hamilton sought leave to amend his Amended Statement of Claim in accordance with a document attached to the Application in Proceedings filed on 30 November 2009 and heard on 30 August 2010. The defendants opposed certain of the proposed amendments. The court was required to determine whether Hamilton was entitled to amend his Amended Statement of Claim in accordance with the draft attached to the Application in Proceedings and, if so, in what manner. The court found that Hamilton could amend his Amended Statement of Claim to plead material facts alleging negligence by the first defendant, through its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it was pleaded by alleging only material facts and by particularising the way it was alleged the negligence arises. The court also found that Hamilton should not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings. The court ordered that Hamilton have leave to amend the Amended Statement of Claim to plead material facts alleging negligence by the first defendant, through its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it was pleaded by alleging only material facts and by particularising the way it was alleged the negligence arises. The court also ordered that Hamilton not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings. The court further ordered that Hamilton file and serve a copy of the Further Amended Statement of Claim on or before 27 April 2011. The plaintiff was also ordered to pay the defendants’ costs of and occasioned by the amendment, such costs not to be assessed or payable until judgment in these proceedings or other order. The defendants were granted leave to seek directions at the trial as to the costs payable under the order.

Orders