Oakley by his tutor Annabel Robertson v State of New South Wales

The application before the court was brought by Oakley, represented by his tutor Annabel Robertson, against the State of New South Wales. The dispute concerns an amendment to the defence in a proceeding for damages arising from an incident involving Oakley. The application was heard by the Supreme Court of New South Wales. The central issue before the court was whether the defendant should be permitted to amend its defence to include a new defence under section 5M of the Civil Liability Act 2002 (NSW). The section allows for the apportionment of liability in negligence cases, which could potentially reduce the damages owed by the defendant. The plaintiff argued that the amendment would cause significant prejudice due to the delay and the fact that the factual issues had already been the subject of evidence. The court considered the potential for prejudice and the necessity of the amendment for the defendant to rely on section 5M at the trial.

The court found that there was no demonstrated prejudice to the plaintiff as a result of the delay in amending the defence. The court noted that the factual issues in dispute were already before the court, and the amendment would not introduce new evidence or arguments. The court held that the amendment was necessary to permit the defendant to rely on section 5M at the trial, as the amendment would allow for a proper consideration of the apportionment of liability. The court emphasised the importance of allowing parties to present their full defences and considered it unjust to deny the defendant the opportunity to rely on a potentially valid defence. The court granted the application to amend the defence. In relation to costs, the court observed that there were no exceptional circumstances to warrant a departure from the general rule that costs ought to follow the event. The application was therefore allowed with no order as to costs.