Hamilton v State of New South Wales

[2014] NSWSC 217

Supreme Court

New South Wales

Medium Neutral Citation:

Hamilton v State of New South Wales [2014] NSWSC 217

Hearing dates:

11 March 2014

Decision date:

11 March 2014

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

Adjournment granted.

Costs borne by the plaintiff.

Catchwords:

PROCEDURE - notice of motion - adjournment application granted - costs

Legislation Cited:

Civil Procedure Act 2005

Category:

Procedural and other rulings

Parties:

Janice Rita Hamilton (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr AE Moreya (Plaintiff)
Solicitors:
Hoffmann & Koops (Plaintiff)
Ms A Taylor
IV Knight, Crown Solicitor (Defendant)

File Number(s):

2013/55881

Publication restriction:

None

EX TEMPORE Judgment

1. HER HONOUR: I make the following directions and orders:

1. That the hearing of the motions on 19 March 2014 be vacated.

2. That the plaintiff serve the proposed amended statement of claim on or before 4 April 2014.

3. That the parties confer and the defendant advise the plaintiff as to whether leave to file the amended statement of claim will be consented to or opposed, on or before 11 April 2014.

4. That the matter be listed before the Registrar on 14 April 2014 so that a hearing date can be allocated for the motion, if that is necessary and any further directions given.

5. That the plaintiff file and serve amended submissions by 14 April 2014, if leave to amend the summons is opposed.

6. That the defendant file and serve any amended submissions, in that event, on or before 28 April 2014.

7. That the plaintiff file and serve any submissions in reply on or before 12 May 2014.

1. I am contemplating that any further hearing date would be after 12 May, noting that the estimate would remain one day.

1. Today, the plaintiff has approached the Court seeking, amongst other orders, to have a hearing of two motions fixed for 19 March to be vacated. That application has arisen in circumstances where, in proceedings commenced last year by statement of claim filed in February, the plaintiff makes serious allegations of misfeasance in public office.

1. The procedural history of the matter appears already to be somewhat unfortunate. Thus far, two further amended pleadings have been served by the plaintiff. The two motions which are listed are a motion by the plaintiff for leave to proceed on the basis of the latest amended statement of claim served and, on the defendant's part, a motion seeking orders that the proceedings be dismissed and, in the alternative, the statement of claim struck out.

1. The motion seeking an adjournment of the hearing was pursued in circumstances where the defendant's submissions had been served on the plaintiff and were considered by the plaintiff's legal representatives. Senior Counsel advised the plaintiff that there was force in those submissions and that the third version of the statement of claim needed, in the circumstances, to be further amended.

1. Despite that acceptance, the defendant opposed the adjournment of the hearing of the motions and submitted that it ought not to be deprived of the opportunity of pressing its motion.

1. Having heard the parties, I came to the conclusion that justice demanded that the adjournment sought should be granted on the basis that the costs of the motion and any costs thrown away as the result of the adjournment must be borne by the plaintiff. That reflects fairly what is plainly a measure of success, on the defendant's part, given the plaintiff's acceptance that the third version of her pleadings is deficient and requires further amendment.

1. The adjournment in the circumstances, it seemed to me, had to be granted despite the defendant's opposition. It is a large thing for proceedings to be dismissed without any hearing, particularly in circumstances where deficiencies in pleadings are accepted and the plaintiff seeks the opportunity to address them by appropriate pleading amendment.

1. While not all of the background to the application and the procedural history of the matter which the parties explained in their submissions will be apparent from the file, it is important, in these reasons, to record what today does not appear to be entirely in accord with what is contemplated by s 56 of the Civil Procedure Act 2005, notwithstanding the complexity of what the plaintiff alleges.

1. The plaintiff certainly cannot proceed on the basis that further opportunities will be given to replead the statement of claim which she wishes to advance her case. This motion's success ought to be accepted as being the last opportunity reasonably available to the plaintiff to advance her case by way of re-pleading.

1. It is for those reasons that I granted the adjournment and made the orders and directions as to the future progress of the matters earlier set out. I urge the parties to confer so that the matter can now proceed sensibly to a hearing, if that has to occur. The directions which have been made accommodate the possibility that this won't be necessary.

1. I make the costs orders earlier mentioned and adjourn the matter to the Registrar's list on 14 April so that a further hearing of the motion can be fixed, if that remains necessary.

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Decision last updated: 12 March 2014