Kaplan v State of Victoria (No 2)

[2022] FCA 679

FEDERAL COURT OF AUSTRALIA

Kaplan v State of Victoria (No 2) [2022] FCA 679

File number(s):

VID 391 of 2021

Judgment of::

MORTIMER J

Date of judgment:

2 June 2022

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application to amend defence – application filed close to trial – where amendments are relatively minor corrections and clarifications – where amendments are not seriously prejudicial – leave granted to file amended defence

PRACTICE AND PROCEDURE – interlocutory application to amend statement of claim – application filed immediately prior to trial – where amendments seek to plead new issue under Wrongs Act 1958 (Vic) s 28LC(2)(a) – whether informal assertion at case management hearing sufficient notice of new allegation – where new allegation does not have reasonable prospects of success as pleaded – consideration of impact on trial and prejudice to other parties if leave to amend granted – leave to file amended statement of claim refused

Legislation:

Wrongs Act 1958 (Vic) ss 28LC(2)(a), 28LE

Federal Court Rules 2011 (Cth) r 16.53

Cases cited:

Bellou v Victoria University [2018] FCA 1794

Jones v Dunkel (1959) 101 CLR 298

Snell v State of Victoria (Department of Education and Training) [2022] FCA 5
State of Victoria v Thompson [2019] VSCA 237

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

27

Date of hearing:

2 June 2022

Counsel for the Applicants:

Mr A Butt with Mr C Dawlings and Mr A Marcou

Solicitor for the Applicants:

Cornwalls

Counsel for the Respondents:

Mr C Young QC with Mr T Jeffrie and Mr B House

Solicitor for the Respondents:

MinterEllison

ORDERS

VID 391 of 2021

BETWEEN:

JOEL KAPLAN

First Applicant

JANET ABADEE AS REPRESENTATIVE OF MATT KAPLAN, A MINOR

Second Applicant

SARIT COHEN AS REPRESENTATIVE OF GUY COHEN, A MINOR (and others named in the Schedule)

Third Applicant

AND:

STATE OF VICTORIA

First Respondent

RICHARD MINAK

Second Respondent

PAUL VARNEY

Third Respondent

DEMI FLESSA

Fourth Respondent

ORDER MADE BY:	MORTIMER J
DATE OF ORDER:	2 JUNE 2022

THE COURT ORDERS THAT:

1.The respondents have leave to file an amended defence pursuant to rule 16.53 of the Federal Court Rules 2011 (Cth) in the form that is contained in annexure CI-1 to the affidavit of Caitlin Ible, affirmed 25 May 2022.

2.The applicants’ interlocutory application dated 1 June 2022 for leave to amend their statement of claim be refused.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised)

MORTIMER J:

1. I set out the applicable principles in relation to amendment of pleadings in Bellou v Victoria University [2018] FCA 1794 at [29] and the authorities there referred to. At [38] to [39] of that judgment, I also emphasised that the effects on other litigants and on the Court’s resources in general are relevant considerations, where proposed amendments may lead to adjournment of a trial that is fixed for hearing. I also emphasised that the…