SMITH -v- McCUSKER QC [No 6] [2009] WASC 381

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 381
Case No:	CIV:1230/1995	Heard:	26 AUGUST 2009 AND ON THE PAPERS
Coram:	MARTIN CJ	Delivered:	11/12/09
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to amend statement of claim refused Ancillary orders refused
Category:	B
PDF Version

Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM JAMES McCUSKER QC
Catchwords:	Practice and procedure Pleadings Amendment Seeking to assert causes of action previously held to be unarguable Delay Prejudice to the other party Amendments vague and confusing
Legislation:	Nil
Case References:	Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100 Smith v McCusker (Unreported, WASC, Library No 970415, 16 June 1997 Smith v McCusker QC [2000] WASCA 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SMITH -v- McCUSKER QC [No 6] [2009] WASC 381 CORAM : MARTIN CJ HEARD : 26 AUGUST 2009 AND ON THE PAPERS DELIVERED : 11 DECEMBER 2009 FILE NO/S : CIV 1230 of 1995 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH

Plaintiffs

AND

MALCOLM JAMES McCUSKER QC

Defendant

Catchwords:

Practice and procedure - Pleadings - Amendment - Seeking to assert causes of action previously held to be unarguable - Delay - Prejudice to the other party - Amendments vague and confusing

Legislation:

Nil

Result:

Leave to amend statement of claim refused

Ancillary orders refused

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : In person ( Mrs E A Smith)

Defendant : Mr M N Solomon

Solicitors:

Plaintiffs : In person

Defendant : Jackson McDonald

Case(s) referred to in judgment(s):

Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker (Unreported, WASC, Library No 970415, 16 June 1997)
Smith v McCusker QC [2000] WASCA 320

(Page 3)

1 MARTIN CJ: The plaintiffs (the Smiths) have applied by motion for leave to amend their statement of claim in terms of a minute which has been filed, and for ancillary orders including orders for disclosure in relation to the allegations made in the amended pleading, that the defence be struck out as an abuse of process and that judgment be entered in favour of the Smiths accordingly. The Smiths have also applied for inspection of documents discovered by the defendant in respect of which legal professional privilege has been claimed, on the basis that the matters alleged in the proposed amended pleading give rise to a waiver of privilege.

The history of these proceedings

2 These proceedings have a long and tortuous history. It has been recounted on a number of occasions - see for example Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100. It is unnecessary to recount that history for the purposes of resolving these applications, other than to observe that in recent years I have been endeavouring to case manage these proceedings to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v McCusker QC [No 6]

Details

AGLC: Smith v McCusker QC [No 6] [2009] WASC 381
Case: [2009] WASC 381
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

The plaintiff sought leave to amend their statement of claim to assert causes of action that had previously been determined to be unarguable, against the defendant, a Queen's Counsel. The dispute was heard in the Supreme Court of New South Wales. The plaintiff sought to amend their statement of claim, which was the second amended statement of claim, to include new causes of action that had previously been determined to be unarguable. The plaintiff also sought an order for ancillary relief.

The court was required to decide whether the plaintiff could amend their statement of claim to include new causes of action that had previously been determined to be unarguable. The court also had to consider whether the delay in seeking to amend the statement of claim would cause prejudice to the defendant and whether the proposed amendments were vague and confusing. The court considered the principles of amendment of pleadings and the factors that should be taken into account when deciding whether to grant leave to amend. The court noted that the plaintiff had delayed in seeking to amend their statement of claim, which had caused prejudice to the defendant. The court also found that the proposed amendments were vague and confusing, and that they did not provide sufficient particulars to enable the defendant to answer them. The court held that the plaintiff was not entitled to leave to amend their statement of claim.

The court refused the plaintiff's application for leave to amend their statement of claim and refused all ancillary orders. The court held that the delay in seeking to amend the statement of claim had caused prejudice to the defendant, and that the proposed amendments were vague and confusing. The court held that the plaintiff had failed to demonstrate that the amendments were necessary or that they would not cause further delay or prejudice to the defendant.

Orders

Orders of the court

Leave to amend statement of claim refused

Ancillary orders refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.