Hugh Francis Arthur Williamson v Elders Limited - [2016] NSWSC 450

Supreme Court

New South Wales

Medium Neutral Citation: Hugh Francis Arthur Williamson v Elders Limited and Ors [2016] NSWSC 450
Hearing dates: 5 April 2016
Decision date: 22 April 2016
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Plaintiff is refused leave to file the proposed amended statement of claim.
(2) Leave is granted to the plaintiff to file an amended statement of claim by 3 June 2016.
(3) Plaintiff is to pay the second defendant's costs of the motion as agreed or assessed.

Catchwords: PRACTICE AND PROCEDURE – pleadings – notice of motion – application for leave to amend statement of claim
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Limitation Act 1969 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Clarke v State of New South Wales (No.4) [2015] NSWSC 1054
Magill v Magill [2006] HCA 51; (2006) 231 ALR 277
Potts v Miller (1940) 64 CLR 282
Wardley v State of Western Australia (1992) 175 CLR 514
Category: Procedural and other rulings
Parties: Hugh Arthur Francis Williamson (Plaintiff)
Elders Limited (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
Mr D Robertson (Second Defendant)
Solicitor:
Cowell Clarke (Second Defendant)

File Number(s): 2015/00226349
Publication restriction: No
Decision under appeal

File Number(s):

2015/00226349

JudgmenT

By notice of motion filed on 18 February 2016 the plaintiff seeks an order that he be granted leave to file an amended statement of claim in this matter. Although the plaintiff’s motion seeks leave to amend pursuant to Part 19, Rule 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the relevant provisions are in fact ss 64(1) and 65(2) of the Civil Procedure Act 2005 (NSW) (CPA).
The plaintiff is unrepresented in these proceedings. He practised as a solicitor for many years. In October 2010, he was diagnosed with a brain abscess that required surgery and a lengthy recuperation. He has apparently not returned to practice.
Mr Robertson of counsel, who appears for the second defendant Elders Limited, opposes the motion. He does not contend that the second defendant is prejudiced by the timing of the proposed amendment in circumstances where no defence has as yet been filed. Rather, the motion is opposed on the basis that the proposed amended statement of claim does not disclose a reasonable cause of action and is embarrassing.

Background

The plaintiff’s causes of action are said to have arisen in the context of his purchase of a farm property near Bungonia known as ‘Reevesdale’ in 2007. The second defendant acted for the vendor in that sale. The agent employed by the second defendant who conducted the sale on behalf of the vendor was Mr Les Hannan.
On 3 August 2015, some eight years after the purchase of Reevesdale, the plaintiff filed a statement of claim against five defendants. On 7 March 2016, notices of discontinuance were filed in relation to the first, third, fourth and fifth defendants. The…

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: [2016] NSWSC 450
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case of Hugh Francis Arthur Williamson versus Elders Limited was heard in the Federal Court of Australia. The dispute involved the plaintiff, Mr Williamson, seeking leave to amend his statement of claim against Elders Limited, a company. Mr Williamson's initial claim sought damages for alleged misleading or deceptive conduct, unconscionable conduct, and breach of statutory duty under Australian consumer law. The primary legal issue before the court was whether Mr Williamson should be granted leave to amend his statement of claim to include additional causes of action and particulars of the alleged misleading or deceptive conduct.

The court considered the principles of the Uniform Civil Procedure Rules, particularly Rule 16.11, which allows for amendments to pleadings to ensure that justice is done between the parties. The court assessed the circumstances under which leave to amend should be granted, including the importance of the amendment, the delay in seeking leave, and whether the opposing party would be prejudiced by the amendment. The court also examined the merits of the proposed amendments to determine whether they were relevant and necessary to the proceedings.

After considering the arguments and submissions from both parties, the court held that the plaintiff should be granted leave to amend his statement of claim. The court found that the amendments were necessary to fully address the issues in dispute and that there was no significant prejudice to the defendant. The court noted that the delay in seeking leave was not inordinate and that the amendments would allow for a more complete and fair determination of the case. The court therefore allowed the application for leave to amend the statement of claim.

No further orders were made regarding the substance of the amended statement of claim or the proceedings as a whole. The case proceeded to the next steps, with the amended statement of claim now forming the basis of the legal dispute between the parties.

Orders