SMN v WEM

The plaintiff, SMN, sought damages from the defendant, WEM, for alleged sexual assaults that occurred when she was a minor and he was her karate teacher. The defendant had previously pleaded guilty to related criminal charges. The plaintiff sought to amend her statement of claim to include additional allegations of sexual acts and to include a new cause of action for "vaginal injury," which had previously been time-barred but was no longer subject to a statutory limitation period. The defendant opposed the amendment and applied to dismiss the proceeding for want of prosecution, or alternatively to stay it, arguing the amendment was an abuse of process.

The court considered whether the plaintiff needed leave to amend her statement of claim under Rule 376(4) of the Uniform Civil Procedure Rules 1999, whether the proceeding should be dismissed for want of prosecution under Rule 280, and whether the proceeding should be stayed as an abuse of process under inherent jurisdiction. The court found that the plaintiff did not need leave to amend her statement of claim as the limitation period for the new cause of action had been removed. The court also found that the proceeding should not be dismissed for want of prosecution as the delay was not due to the defendant's fault, but the court ordered the parties to mediate and set a timetable for further amendments to the pleadings and expert reports. The proceeding was not stayed as an abuse of process.

The court dismissed the defendant's application to stay or dismiss the claim. It granted the plaintiff leave to proceed on all causes of action pleaded in the amended statement of claim. The court ordered the plaintiff to file and serve a further amended statement of claim by 10 November 2017, limited to allegations relating to quantum, and ordered the parties to agree on a mediator for the claim by that date. The defendant was to file and serve a further amended defence by 8 December 2017, and the plaintiff was to file and serve a reply to any further amended defence by 20 December 2017. The plaintiff was to file and serve a statement of loss and damage within 28 days of the close of pleadings. The defendant was to provide the plaintiff a list of three experts to assess the plaintiff for medico-legal purposes within seven days of service of the statement of loss and damage. The plaintiff was to pay the defendant's costs of the application for leave to proceed and leave to amend the statement of claim on the standard basis. The proceedings were transferred to the District Court at Brisbane.