Sesa v Workers Compensation Nominal Insurer (No 1)

In this matter, the plaintiff, Sesa, sought to bring proceedings against the Workers Compensation Nominal Insurer, which at the time of the commencement of the proceedings no longer existed. The plaintiff's initial statement of claim was found to be irregular under the Uniform Civil Procedure Rules. The defendant was not served with the statement of claim, and the defendant's solicitors were unable to locate the defendant to effect service. The plaintiff subsequently sought leave to file and serve an amended statement of claim. The court had to decide whether the plaintiff's initial failure to serve the defendant constituted a nullity at common law or merely an irregularity under the Uniform Civil Procedure Rules.

The court considered the nature of the irregularity and the circumstances in which the plaintiff sought leave to amend the statement of claim. The court noted that, under the common law, proceedings against a non-existent defendant were generally considered null. However, under the Uniform Civil Procedure Rules, an irregularity could be cured by leave of the court. The court found that, in this case, the plaintiff's failure to serve the defendant constituted an irregularity rather than a nullity. The court considered the plaintiff's explanation for the failure to serve the defendant, the defendant's inability to be located, and the plaintiff's efforts to amend the statement of claim. The court found that the plaintiff had made out a sufficient case for leave to be granted.

The court granted leave for the plaintiff to file and serve an amended statement of claim. The court found that the plaintiff's failure to serve the defendant was not a nullity at common law, but rather an irregularity under the Uniform Civil Procedure Rules. The court noted that the plaintiff had made out a sufficient case for leave to be granted and that the plaintiff's efforts to amend the statement of claim were reasonable. The court considered the circumstances of the case and found that it was in the interests of justice to grant leave. The court ordered that leave be granted to the plaintiff to file and serve an amended statement of claim.