WAYNE GARRY MEREDITH v COMMONWEALTH OF AUSTRALIA
[2009] ACTSC 168 (19 November 2009)
PRACTICE AND PROCEDURE – application to amend statement of claim where action out of time – Court Procedures Rules 2006 (ACT), rr 502, 503 – whether amendment a new cause of action – suggested test – alleged negligent statement by additional representor held to be a new cause of action – whether action arises from the “same or substantially the same facts” – employment relationship with additional representor sufficiently different to distinguish facts – relevance of specific prejudice arising from the unavailability of the representor and general prejudice to the respondent.
Limitation Act 1985 (ACT), s 11
Trade Practices Act 1974 (Cth), s 52, 53
Court Procedures Rules 2006 (ACT), rr 6, 502, 503, 509, 511, 514
Commonwealth of Australia v Cornwell (2007) 229 CLR 519
Weldon v Neal (1887) 19 QBD 394
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Renowden v McMullin (1970) 123 CLR 584
Morgan v Banning (1999) 20 WAR 474
Draney v Barry [2002] 1 Qd R 145
Hristeas v GMH Pty Limited [1968] VR 14
Black v The City of South Melbourne (1964) 38 ALJR 309
Collins v Hertfordshire County Council [1947] KB 598
Golski v Kirk (1987) 14 FCR 143
Howarth v Adey [1996] 2 VR 535
Canberra Cruises and Tours Pty Limited & Ors v Commonwealth of Australia and Anor [2003] ACTSC 90
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Nectaria Nominees Pty Limited v Commonwealth of Australia (1992) 111 FLR 459
Stone James v Pioneer Concrete WA Pty Limited [1985] WAR 233
Chatsworth Investments Limited v Cussins (Contractors) Limited [1969] 1 WLR 1
Adam v Shiavon [1985] 1 Qd R 1
Brunsden v Humphrey (1884) 14 QBD 141
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
EX TEMPORE JUDGMENT
No. SC 528 of 2007
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 November 2009
IN THE SUPREME COURT OF THE )
) No. SC 528 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:WAYNE GARRY MEREDITH
Plaintiff
AND:COMMONWEALTH OF AUSTRALIA
Defendant
ORDER
Judge: Refshauge J
Date: 19 November 2009
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff has leave to amend paragraph 7 of the Statement of Claim as proposed in the draft Amended Statement of Claim annexed to the Application in Proceedings dated 11 November 2009.
The plaintiff has leave to amend the Reply as proposed in the draft Amended Reply annexed to the Application in Proceedings dated 11 November 2009.
Leave is refused for the amendment to paragraph 3(d) and to insert paragraph 7A of the Statement of Claim.
The plaintiff pay the defendant’s costs of the application and amendment, such costs not to be payable until judgment in the proceedings.
On 9 January 1966, Mr Wayne Garry Meredith commenced full-time work as a temporary employee of the Commonwealth of Australia working in ACT…
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- Case
- [2009] ACTSC 168
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the proposed amendment constituted a new cause of action and whether the amendment arose from the "same or substantially the same facts" as the original claim. The court considered the test for determining whether an amendment was a new cause of action and whether the facts of the case were substantially the same. The court also examined the employment relationship between the plaintiff and the additional representor, and the specific and general prejudice that might arise from the unavailability of the representor.
The court held that the amendment constituted a new cause of action, as the employment relationship with the additional representor was sufficiently different from the original relationship to distinguish the facts. The court also found that the amendment did not arise from the "same or substantially the same facts" as the original claim. The court noted that the specific prejudice arising from the unavailability of the representor was relevant to the determination, as was the general prejudice to the respondent. However, the court found that the employment relationship with the additional representor was sufficiently different to distinguish the facts.
The court refused the plaintiff's application to amend the statement of claim, as the proposed amendment constituted a new cause of action. The court found that the employment relationship with the additional representor was sufficiently different from the original relationship to distinguish the facts, and that the amendment did not arise from the "same or substantially the same facts" as the original claim. The court also noted that the specific and general prejudice to the respondent were relevant considerations in the determination. However, the court found that these factors were not sufficient to overcome the differences in the facts of the case.
Orders
Orders of the court
1.
The plaintiff has leave to amend paragraph 7 of the Statement of Claim as proposed in the draft Amended Statement of Claim annexed to the Application in Proceedings dated 11 November 2009.
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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