Patricia Fay Talbot v Alan Gerald Taylor No. SCGRG 92/2671 Judgment No. 3743 Number of Pages 3 District Court Practice Case Flow Management Principles

[1992] SASC 3743

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
District court practice - case flow management principles - Application for leave to appeal from order by District Court Judge permitting amendment by plaintiff of particulars of claim at the commencement of the trial - in view of the substantial nature of the amendments, trial then adjourned to a date in 1993 - held that there was a clear breach of the case flow management principles and the order for adjournment should not have been made - however, the order allowing the amendments could have been made without the matter being adjourned as the amendments were not so extensive as to cause any serious embarrassment to the defendant if the defendant had been properly prepared for trial - despite the irregular adjournment, the status quo ante could not now be restored and the adjourned trial date would have to remain - contention by the defendant that leave should nonetheless be granted to appeal from the order allowing the amendments held untenable - the amended pleading gave a much clearer indication of the plaintiff's claims and should be permitted to remain - observations as to the need to plead facts only and references to causes of action were unnecessary and in breach of the rules as to pleading.

HRNG ADELAIDE, 4 December 1992 #DATE 4:12:1992
Counsel for appellant:     Mr A M Burtt
Solicitors for appellant:    Andersons Barker Gosling
No attendance by respondent

ORDER
Application for leave to appeal refused.

JUDGE1 PERRY J This is an application for leave to appeal against the order of Acting Judge Thompson made on 18 November 1992 that the trial, which was at that time about to commence, be adjourned to 8 March 1993 and that the plaintiff be given leave to amend his particulars of claim. 2. The amendment has in fact been carried into effect and amended particulars of claim were filed in the District Court on 24 November 1992. 3. The action had not proceeded regularly for some time before matters came to a head on the trial date on 18 November 1992. 4. It appears from the arguments of Mr Burtt that, although I have not been provided with a copy of the defendant's defence, the defence raised a plea that the particulars of claim as they then stood disclosed no cause of action. When a defendant raises a plea that the particulars of claim do not disclose a cause of action, the proper course is for that issue to be determined pre-trial during the course of the interlocutory proceedings. If that aspect of the matter had been pursued in that way, the result may well have been a striking out of the particulars of claim attached to the summons dated 25 October 1990 and, depending upon the manner in which the discretion of the court was exercised, the plaintiff may or may not have been given leave to bring in amended particulars of claim. Indeed, if that course had been followed, a document which might have resembled the particulars of claim as they are now filed might have been brought into Court at an earlier stage and the present situation might never have arisen. 5. At all events, putting aside the question of when it was that the defendant should have moved on her assertion that the particulars of claim, as originally filed, did not disclose a cause of action, the question arises as to the propriety of the order now appealed from. 6. I have had the benefit of reading the transcript and the amended particulars of claim which were subsequently filed, and I have also had the benefit of considering the matters referred to in the affidavit of Mr Banks filed in this Court on 2 December. It seems clear enough that on a proper application of the case flow management principles which find expression in Rule 2, there should not have been an order permitting such a late amendment to the particulars of claim, or even if the amendment had been permitted, there should not have been any adjournment of the hearing. 7. However, it seems to me that events have now overtaken the situation as it then existed, and there is little point in attempting to perform the impossible, that is to try to restore the status quo ante. 8. This Court has no control over trial dates assigned by the District Court, and it is obvious anyway that it cannot be expected that an earlier trial date than 8 March 1993 could now be assigned to the matter. 9. It seemed at one stage that Mr Burtt for the applicant was suggesting that his client was prejudiced in that whereas she might have been successful on the old particulars of claim, she might now have a harder task in defending the action on the amended particulars of claim. That argument could not possibly be accepted. It would be quite wrong to contemplate forcing the plaintiff back to the now superseded particulars of claim. 10. It must be accepted that the amended particulars of claim put more flesh on the bones of the pleading as it stood before, and are apt to alert the applicant more clearly to the claims which she faces. It would be absurd in those circumstances to vacate the order permitting amendment, and oblige the parties to proceed on what, on all accounts, must be regarded as an inadequate particularisation of the plaintiff's claim. 11. I should say, though, with respect to the use of the expression "cause of action", that it is unnecessary, and indeed it has not been necessary since the Judicature Act, to plead a cause of action. Indeed, it is irregular to do so. Under the rules of this Court and the District Court all that should be pleaded is a statement of the facts, together with an indication of the relief sought. 12. At the end of the trial the court gives such relief as the evidence entitles the parties to. In doing so it may range freely over all possible causes of action. Likewise there is no obligation in the pleadings to describe in as many words the "cause of action" relied upon, and indeed, as I have said, to do so is irregular. 13. This means that in comparing the original particulars of claim with the amended particulars of claim, all one should have regard to are the changes in the factual allegations. I have considered them closely, and it seems to me that there was very little that should have caught the defendant by surprise, and the proper order should have been to allow the trial to proceed on the amended particulars of claim. 14. I am not able to see that any adjournment would have been necessary if the defendant had properly prepared her case in the first place. Adequate preparation of the defence to the case as it was set out in the original particulars of claim should have been sufficient to deal with the issues raised by the amended particulars of claim. 15. Returning to the present application, in my opinion, it should be refused. No useful purpose would be served by allowing an appeal to go forward, the focus of which would be an attempt to vacate the order permitting the amendment. 16. Given that the trial date is now 8 March 1993, the matter should proceed on the basis of the amended particulars of claim. Any further interlocutory processes should be proceeded with promptly, so that there is no further embarrassment in bringing the matter to trial then. 17. The application for leave to appeal is refused.