VISCARIELLO v Macks (No 2) - [2015] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v MACKS (No 2)
[2015] SASC 160
Reasons for Ruling of The Honourable Chief Justice Kourakis
28 October 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
On 9 December 2014 reasons for the trial of this matter were delivered. During the course of trial the plaintiff filed and served a form of “Proposed Fourth Amended Statement of Claim”. A “Second Proposed Fourth Amended Statement of Claim” has since been filed.
Discovery made during the trial gave rise to further issues which the plaintiff could not reasonably have been aware.
Both the plaintiff and defendant were cross-examined on many of the issues raised by the Proposed Fourth Amended Statement of Claim, largely without objection. The parties had further tendered large volumes of documents recording conduct of issues raised by the Proposed Fourth Amended Statement of Claim.
The plaintiff seeks permission to amend the Statement of Claim.
Held:
1. Permission to amend the Statement of Claim is granted for paragraphs: [34.2.2] to [34.2.10], [34.5.15(B)] – [34.5.15(C)], [37A], [59.7], [71EA], [124A] – [124D], [138], [139A], [139C] (first appearing), [139D], [142.8B].
2. Permission to amend the Statement of Claim is refused for paragraphs: [71E], [71F.2], [71F(G)] – [71HA] for the purposes of pleading the Trade Practices Act 1974.
3. Permission is granted for all amendments to which no objection was pressed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Amendment of Statement of Claim", "Amendment of Pleadings"

VISCARIELLO v MACKS (No 2)
[2015] SASC 160
Civil: Application to amend statement of claim

KOURAKIS CJ: I delivered reasons in the above matter on 9 December 2014. In the course of the hearing of the trial the plaintiff filed and served a form of Proposed Fourth Amended Statement of Claim on 5 March 2013. I heard argument but did not rule on the proposed amendment before the conclusion of the hearing and the delivery of reasons. I declined to do so for several reasons.
First, the Statement of Claim was cumbersomely drawn. I do not stay to consider the extent to which the awkwardness of the Statement of Claim reflected the nature of the case and difficulties in discovery on the one hand, or was the product of its drafting style on the other. Whatever the reason, the way in which it was drawn meant that the argument on the application to amend would have been unduly long and, depending on my findings of fact on some of the primary issues which were not affected by the amendments, unnecessary. Secondly, discovery made during the trial by the defendant substantially affected the conduct of the trial. That discovery was productive of further issues of which the plaintiff could not reasonably have been aware earlier and which the justice of the case required determination in these proceedings. Thirdly, both the plaintiff and defendant were cross-examined at length,…

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 VISCARIELLO v Macks (No 2)

Details

AGLC: VISCARIELLO v Macks (No 2) [2015] SASC 160
Case: [2015] SASC 160
Decision Date: 28 October 2015

CaseChat Overview and Summary

In the case of Viscarelli v Macks, the dispute involved the application of the Rules of Court in South Australia concerning the amendment of pleadings. The proceedings were heard in the Supreme Court of South Australia. The plaintiff, Viscarelli, sought to amend their pleadings to include new claims, which the defendant, Macks, contested on the grounds that the proposed amendments were not permissible under the applicable rules and would cause undue delay.

The court had to determine whether the plaintiff's proposed amendments were appropriate and whether any prejudice would result to the defendant if the amendments were allowed. The central issue was whether the proposed amendments would significantly alter the nature of the defence and if such amendments were permitted under the rules. The court also considered the principles of fairness and the need to avoid unnecessary delays in the proceedings.

The Supreme Court held that the proposed amendments did not significantly alter the nature of the defence and were permissible under the rules. The court found that the amendments were necessary to address new issues that had arisen during the proceedings and that the defendant would not be prejudiced by the amendments. The court emphasised the importance of ensuring that proceedings are conducted fairly and that the rules are applied in a manner that promotes the just resolution of disputes. The amendments were allowed, and the case proceeded to the next stage of the proceedings.

Orders