Soia v Bennett [No 3]

Case [2011] WASC 361


SOIA -v- BENNETT [No 3] [2011] WASC 361



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASC 361
Case No:CIV:1130/200315 DECEMBER 2011
Coram:COMMISSIONER SLEIGHT22/12/11
16Judgment Part:1 of 1
Result: Application partly granted
B
PDF Version
Parties:KIM PETER SOIA
PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 71)
MARTIN LAWRENCE BENNETT

Catchwords:

Practice and procedure
Application to amend statement of claim and particulars after the close of evidence
Turns on its own facts

Legislation:

Fair Trading Act 1987 (WA), s 9, s 79
Rules of the Supreme Court 1971 (WA), O 21 r 5

Case References:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CRL 175
Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Custom Credit Corporation Ltd v Dallas Development Corporation Pty Ltd [2003] WASC 98
Dare v Pulham (1982) 148 CLR 658
Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666
Motium Pty Ltd v Arrow Electronics Australia Ltd [2011] WASCA 65
Soia v Bennett [No 2] [2011] WASC 133
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : SOIA -v- BENNETT [No 3] [2011] WASC 361 CORAM : COMMISSIONER SLEIGHT HEARD : 15 DECEMBER 2011 DELIVERED : 22 DECEMBER 2011 FILE NO/S : CIV 1130 of 2003 BETWEEN : KIM PETER SOIA
    First Plaintiff

    PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 71)
    Second Plaintiff

    AND

    MARTIN LAWRENCE BENNETT
    Defendant

Catchwords:

Practice and procedure - Application to amend statement of claim and particulars after the close of evidence - Turns on its own facts

Legislation:

Fair Trading Act 1987 (WA), s 9, s 79


Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Application partly granted


(Page 2)



Category: B

Representation:

Counsel:


    First Plaintiff : Mr E W Alstergren & Mr C J Twidale
    Second Plaintiff : Mr E W Alstergren & Mr C J Twidale
    Defendant : Dr J T Schoombee

Solicitors:

    First Plaintiff : Galic & Co
    Second Plaintiff : Galic & Co
    Defendant : Bennett & Co



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

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CRL 175
Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Custom Credit Corporation Ltd v Dallas Development Corporation Pty Ltd [2003] WASC 98
Dare v Pulham (1982) 148 CLR 658
Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666
Motium Pty Ltd v Arrow Electronics Australia Ltd [2011] WASCA 65
Soia v Bennett [No 2] [2011] WASC 133
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323


(Page 3)

1 COMMISSIONER SLEIGHT: The plaintiffs seek leave to amend the statement of claim and further and better particulars to par 3 of the statement of claim. The…

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Soia v Bennett [No 3] [2011] WASC 361
Case
[2011] WASC 361
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CaseChat Overview and Summary

In the matter of Soia v Bennett [No 3], the Federal Court was asked to consider an application by the plaintiff, Mr Soia, to amend his statement of claim and particulars after the close of evidence. The dispute at hand centred on whether Mr Soia's proposed amendments to his claims and particulars were permissible under the circumstances and whether the amendment would unfairly prejudice the defendant, Mr Bennett. The case was heard in the Federal Court of Australia.

The primary legal issue that the court needed to address was the appropriateness of allowing the plaintiff to amend his statement of claim and particulars after the close of evidence. The court considered whether the proposed amendments were substantive or merely procedural, and whether they would cause an undue delay or prejudice to the defendant. The court also evaluated the circumstances under which the plaintiff sought to make the amendments and whether they were in line with the principles of justice and fairness.

The court held that the application to amend the statement of claim and particulars would be granted in part. The court found that the proposed amendments were largely procedural in nature and did not introduce new claims or significantly alter the scope of the proceedings. However, the court was cautious to ensure that the amendments would not cause undue delay or prejudice to the defendant. After considering the evidence presented and the arguments of both parties, the court concluded that the amendments could be made, but only to the extent that they did not prejudice the defendant's right to a fair trial.

The court's decision was grounded in the principles of justice and fairness, as well as the need to ensure that the proceedings were conducted in an efficient and effective manner. The court granted the application to amend the statement of claim and particulars in part, subject to certain conditions to protect the defendant's rights. This decision highlights the importance of striking a balance between the need for procedural flexibility and the need to protect the rights of all parties involved in the litigation process.

Orders

Orders of the court

Application partly granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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