Jausnik v Nominal Defendant (No 2) - [2015] ACTSC 130

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jausnik v Nominal Defendant (No 2)
Citation:	[2015] ACTSC 130
Hearing Date:	12 May 2015
DecisionDate:	13 May 2015
Before:	Mossop AsJ
Decision:	See [31]
Category:	Interlocutory Application
Catchwords:	PROCEDURE – Application for leave to amend statement of claim – application made on second day of trial – inadequate explanation for delay in making application – no consideration given by parties to which proposed amendments fell within the scope of existing pleadings and which proposed amendments would expand the scope of existing pleadings – application dismissed other than in relation to one minor amendment only
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 21, 502
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Jausnik v Nominal Defendant [2014] ACTSC 406
Parties:	Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party)
Representation:	Counsel Mr PJ Deakin QC and Ms LP McFee (Defendant) Mr GM Watson SC and Mr WS Reynolds (First Third Party) Mr J Sheller (Second Third Party)
Solicitors Minter Ellison (Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party)
File Number:	SC291 of 2012

The application

1. Yesterday during the course of the proceedings I granted the defendant leave to file an amended statement of claim in relation to the third party proceedings but the amendment that I permitted was only a very minor one and I otherwise dismissed the defendant’s application for leave to amend its pleadings. I indicated that I reserved my reasons and I would give them as soon as possible. These are my reasons.
2. The nature of the claim is summarised in an earlier interlocutory decision in the matter Jausnik v Nominal Defendant [2014] ACTSC 406 at [4]-[8] and need not be repeated here.
3. The proceedings were commenced by originating claim filed 11 October 2012. They were first listed before me for directions on 18 July 2014. On 12 September 2014 I listed the matter for hearing on 16 February 2015 and made other directions. At that stage a mediation was arranged by the parties for 8 October 2014. The matter did not settle at mediation. On 18 November 2014 I gave leave to the defendant to file expert reports after a certificate of readiness had been filed: see Jausnik v Nominal Defendant [2014] ACTSC 406. In giving that leave I recognised that there was a risk that as a consequence of permitting reliance upon those reports the hearing date may need to be vacated. That proved to be correct as a result of the difficulties in obtaining expert opinion in response to the expert reports filed by the defendant and on 19 December 2014 I made orders by consent vacating the hearing date. I also then listed the matter for hearing on 11 May 2015. On 4 March 2015 I made directions relating to preparation for the trial. The return of a subpoena issued…

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 Jausnik v Nominal Defendant (No 2)

Details

AGLC: Jausnik v Nominal Defendant (No 2) [2015] ACTSC 130
Case: [2015] ACTSC 130
Decision Date: 13 May 2015

CaseChat Overview and Summary

The case of Jausnik v Nominal Defendant (No 2) involves an application by the plaintiff, Jausnik, for leave to amend the statement of claim, which was made on the second day of the trial. The application was made in the Federal Court of Australia. The plaintiff sought to amend the statement of claim to include additional allegations and expand the scope of the existing pleadings. The defendant opposed the application, arguing that the plaintiff had not provided an adequate explanation for the delay in making the application and that the proposed amendments would significantly expand the scope of the existing pleadings.

The central legal issue the court had to decide was whether the plaintiff's application for leave to amend the statement of claim should be granted. The court needed to consider the plaintiff's reasons for the delay in making the application, whether the proposed amendments fell within the scope of the existing pleadings, and whether the proposed amendments would expand the scope of the existing pleadings. The court also needed to consider the impact of the proposed amendments on the defendant and the overall fairness of the proceedings.

The court found that the plaintiff had not provided an adequate explanation for the delay in making the application. The court also found that the parties had not considered which proposed amendments fell within the scope of the existing pleadings and which proposed amendments would expand the scope of the existing pleadings. The court held that it was not appropriate to grant leave to amend the statement of claim in the circumstances of this case, other than in relation to one minor amendment. The court dismissed the application for leave to amend the statement of claim, other than in relation to one minor amendment.

The court's final orders were to dismiss the application for leave to amend the statement of claim, other than in relation to one minor amendment. The court did not provide further details about the minor amendment that was allowed. The court's decision highlights the importance of providing adequate explanations for delays in making applications and the need for parties to consider the scope of proposed amendments before making an application. The court's decision also highlights the need for parties to consider the impact of proposed amendments on the overall fairness of the proceedings.

Orders

Orders of the court

See [31]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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