Williams v Smith [No 2]
[2012] WASC 489
•14 DECEMBER 2012
WILLIAMS -v- SMITH [No 2] [2012] WASC 489
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 489 | |
| Case No: | CIV:1026/2011 | 21 NOVEMBER 2012 | |
| Coram: | LE MIERE J | 14/12/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend statement of claim refused in each action | ||
| B | |||
| PDF Version |
| Parties: | PAUL MONTAGUE WILLIAMS MELANIE JAYNE SMITH STEPHANIE SMITH |
Catchwords: | Practice and procedure Plaintiff's application to amend statement of claim Turns on own facts |
Legislation: | Children and Community Services Act 2004 (WA), s 124B Family Law Act 1975 (Cth), s 67Z Limitation Act 2005 (WA), s 15 |
Case References: | AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MELANIE JAYNE SMITH
Defendant
- Plaintiff
AND
STEPHANIE SMITH
Defendant
Catchwords:
Practice and procedure - Plaintiff's application to amend statement of claim - Turns on own facts
(Page 2)
Legislation:
Children and Community Services Act 2004 (WA), s 124B
Family Law Act 1975 (Cth), s 67Z
Limitation Act 2005 (WA), s 15
Result:
Leave to amend statement of claim refused in each action
Category: B
Representation:
CIV 1026 of 2011
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
CIV 1027 of 2011
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
(Page 3)
Case(s) referred to in judgment(s):
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
(Page 4)
1 LE MIERE J: In each of these actions the plaintiff has applied for leave to amend his statement of claim in accordance with a minute of proposed amended statement of claim dated 2 November 2012 and to amend the writ in each action so as to permit amendments to the statement of claim which fall outside the indorsement of claim.
2 The plaintiff (Mr Williams) is the father of a child who I will refer to as Libby and the former de facto husband of the defendant in CIV 1026 of 2011 who is the mother of Libby and who I will refer to as Melanie. The defendant in CIV 1027 of 2011, who I will refer to as Stephanie, is the mother of Melanie and grandmother of Libby.
History of proceedings
3 Mr Williams commenced each of these actions on 11 January 2011. In each action Mr Williams claimed that he had been defamed by statements by the defendants on various occasions between 19 June 2007 and 18 August 2008. The defendants asserted that the actions had been commenced more than one year after the publications complained of and by reason of s 15 of the Limitation Act 2005 (WA) could not be maintained.
4 On 22 August 2011 I granted the plaintiff leave to amend the writ of summons and the statement of claim in each action to substitute claims for relief for injurious falsehood in substitution for the claims in defamation. In CIV 1026 of 2011, the plaintiff alleged that Melanie had maliciously made false statements about him to Dr Tan and to Libby. In CIV 1027 of 2011, Mr Williams alleged that Stephanie maliciously made a false statement about him to the plaintiff's mother (Elizabeth), to Libby, to Melanie and to a neighbour and friend of Mr Williams, who I will refer to as Pamela.
5 On 27 September 2011 Melanie and Stephanie each filed a defence in which they denied making the statements attributed to them or that they did so falsely or maliciously. The plaintiff and the defendants each gave discovery. On 31 May 2012 I gave the plaintiff leave to amend the writ and statement of claim in each action. On 1 June 2012 Mr Williams amended the writ and statement of claim in CIV 1026 of 2011 to allege that Melanie made a malicious false statement about him to Dr Tan in addition to the alleged malicious false statements previously pleaded. Mr Williams amended each statement of claim to allege further damage in addition to the damage previously pleaded.
(Page 5)
6 Earlier this year the plaintiff and the defendants each answered interrogatories delivered by the other party. After receipt of the plaintiff's answers to interrogatories the defendants each applied for an order that the action be summarily dismissed, alternatively the statement of claim be struck out or further alternatively that certain paragraphs in the statement of claim be struck out. Those applications were heard on 3 September 2012. On 12 October 2012 I delivered reasons for decision: [2012] WASC 371. I dismissed the defendants' applications for summary judgment and struck out [14] of the statement of claim in CIV 1026 of 2011 and [10] in the statement of claim in CIV 1027 of 2011 on the ground that they failed to state material facts giving rise to the plaintiff's claim. I directed that if the plaintiff wished to amend his statement of claim he should file and serve a minute of proposed amended statement of claim. On 2 November 2012 the plaintiff filed a minute of proposed amended statement of claim in each action. The plaintiff now moves for leave to amend his statement of claim in accordance with the minute. The defendants oppose leave to amend the statement of claim in each action.
Proposed amended statement of claim in CIV 1026 of 2011
7 Paragraph 3 pleads that on 19 June 2007 Melanie published to Dr Tan the words, or words to the effect of: 'Paul Williams is sexually abusing [Libby]'.
8 Paragraph 4 pleads that in their natural and ordinary meaning the words referred to in [3] (first matter complained of) were understood to mean that Mr Williams had sexually abused his daughter. Paragraph 6 pleads that on 24 September 2007 the defendant published to Dr Tan the words or words to the effect of: 'Paul Williams is sexually and physically abusing [Libby]' (second matter complained of). Paragraph 9 pleads that on 27 February 2008 the defendant published to Dr Tan the words or words to the effect of: 'Voiced by her mother of neglect/abuse by Paul Williams'.
9 Paragraph 7 pleads that in their natural and ordinary meaning the first, second and third matters complained of meant and were understood to mean the four meanings pleaded in [7.1] to [7.4]. That is embarrassing. The plaintiff should plead the meaning he alleges of each of the publications complained of, not meanings which he says arise from the three publications complained of collectively.
10 Paragraph 9 is embarrassing in its present form. The plaintiff should plead the words he alleges were published by the defendant in direct speech.
(Page 6)
11 Paragraph 11 pleads that the first, second and third matters complained of were published by the defendant maliciously. The plaintiff then gives particulars of malice. The plaintiff seeks to amend (d) of the particulars by adding '/mentally' after the words 'the plaintiff had not sexually, physically' and before the words 'abused or neglected [Libby]'. I would allow that amendment but the words to be inserted should be 'or mentally' rather than '/mentally'.
12 The plaintiff seeks to amend his statement of claim by adding two new particulars in (e) and (f). Paragraph (e) is embarrassing. The first part of the paragraph pleads that the defendant was aware at the time of each of the publications complained of that the plaintiff had not sexually, physically or mentally abused or neglected Libby. It is difficult to understand the words which follow. The paragraph should be redrafted to make the meaning clear.
13 Paragraph (f) of the particulars of malice consists of two sentences. The first sentence repeats that the defendant was aware at the time of each of the publications complained of that the plaintiff had not sexually, physically or mentally abused or neglected Libby. That is merely repetitive and should not be allowed. The second sentence is:
The defendant was aware at the time of publication that she was in a relationship with a person that the Department of Child Protection (DCP) had removed his children and made them Ward of the State on the basis of sexual abuse, domestic violence and drug addiction including his registration with DCP as an ASH (Assessed Significant Harm) to children with DCP.
- That is arguably relevant to the plea of malice and I would permit the amendment.
14 Paragraph 13 pleads that on or about 24 September 2007 Dr Tan republished the first and second matters complained of to the Department of Child Protection (DCP) and by reason of this republication the plaintiff was interviewed/investigated by DCP in relation to the republication by Dr Tan as to the sexual abuse, physical abuse and harm to Libby. It is further pleaded that Dr Tan had both a duty of care and mandatory reporting obligation to republish the allegations of the defendant by way of s 672A of the Family Law Act 1975 (Cth) and s 124B of the Children and Community Services Act 2004 (WA). I first observe that the plaintiff's reference to s 672A of the Family Law Act appears to be an erroneous reference to s 67Z(2) or pt VII div 8 subdivision D of the Act, which is entitled 'Allegations of Child Abuse and Family Violence'.
(Page 7)
- Section 67Z applies if an interested person in proceedings under the Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused. Dr Tan is not an interested person for the purposes of that section and hence it has no application to her. Section 124B of the Children and Community Services Act provides, amongst other things, that a doctor who believes on reasonable grounds that a child has been the subject of sexual abuse that occurred on or after the commencement day was the subject of ongoing sexual abuse must report the belief as soon as practicable after forming the belief. The commencement day is 1 January 2009. The section does not apply to conduct of Dr Tan in September 2007. That does not mean that Dr Tan did not have an ethical or professional obligation to report suspected child abuse to the Department for Child Protection. However, s 124B of the Children and Community Services Act 2004 does not apply to the conduct of Dr Tan on 24 September 2007.
15 Paragraph 14 pleads that on 18 September 2008 Dr Tan republished the first, second and third matters complained of by way of referrals for Libby to attend North Metropolitan Child Mental Health Services and Princess Margaret Hospital (Child Protection Unit) and that the defendant failed to attend those medical providers based on the referrals. The plaintiff does not plead that North Metropolitan Child Mental Health Services or Princess Margaret Hospital republished the first, second or third matters complained of to him (the plaintiff) or that at any relevant time he became aware that Dr Tan had republished the first, second and third matters complained of to North Metropolitan Child Health Mental Services or Princess Margaret Hospital. In [20] the plaintiff pleads that 'all of the parties' in various paragraphs of the statement of claim have republished the first, second and third matters complained of to the plaintiff but the parties referred to do not include North Metropolitan Child Mental Health Services or Princess Margaret Hospital. In those circumstances it is irrelevant that Dr Tan republished the first, second and third matters complained of to North Metropolitan Child Health Mental Services and Princess Margaret Hospital. The plaintiff will not be allowed to amend his statement of claim in accordance with [14] of the minute.
16 Paragraph 15 pleads that on 12 September 2007 the defendant republished the first matter complained of to Joondalup Health Campus which led to a sexual assault examination of Libby and the republication of this by Joondalup Health Campus to Princess Margaret Hospital by way of referral. In the course of oral argument the plaintiff submitted, in effect, that this is a further injurious falsehood on which the plaintiff
(Page 8)
- wishes to sue. The proposed pleading exceeds the indorsement on the writ. The indorsement on the writ is a claim for malicious injurious falsehood as a result of the defendant publishing, or causing to be published, false words of and concerning the plaintiff by way of verbal statements to Dr Tan and Libby on 19 June 2007, 24 September 2007 and 27 February 2008. The proposed pleading will not be allowed unless the indorsement is amended. When this was drawn to the plaintiff's attention he moved to amend the indorsement to cover the publication referred to in [15] of the proposed pleading.
17 In considering whether to allow the amendments the court should have regard to the matters referred to by the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. A party does not have an entitlement to amend a pleading, or an indorsement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and its effect on the parties should be considered. Relevant matters also include the nature and importance of the amendment to the party applying, the stage the litigation has reached and the explanation for any delay in applying for amendment.
18 The plaintiff's reasons for the delay in applying for the amendment are that he has not worked since 2008, he has suffered and continues to experience a psychiatric condition diagnosed as post traumatic stress disorder, he is not legally trained, the matters giving rise to the litigation and the litigation are overwhelming issues, and he has found the litigation very difficult. I do not accept that to be an adequate explanation. The plaintiff has twice before amended his statement of claim. On 31 May 2012 I gave the plaintiff leave to amend the writ and statement of claim in CIV 1026 of 2011 to allege that Melanie made a malicious false statement about him to Dr Tan on an occasion in addition to the alleged malicious false statements previously pleaded. Mr Williams was expressly made aware that if he wished to allege or rely upon any further publications by the defendant they had to be specified in the indorsement of claim. Mr Williams then took the opportunity to add a further publication in his indorsement of claim but did not include the publication now sought to be relied upon. The plaintiff has offered no adequate explanation why the proposed amendment was not made then.
19 A consideration of the nature and importance of the amendment to the plaintiff favours the grant of leave to amend. The plaintiff's case is that Melanie maliciously published false statements about the plaintiff which caused actual damage to him which was intended by Melanie or
(Page 9)
- was the natural and probable result of the publications by her. From the time when the plaintiff amended his claim to a claim in injurious falsehood the plaintiff has alleged that the defendants maliciously made false statements to the effect that the plaintiff had sexually abused Libby, that the plaintiff was made aware of those statements by the persons to whom they were made and that the result of those statements was that the plaintiff suffered mental anguish and traumatic shock giving rise, or contributing to, post traumatic stress disorder as a result of which the plaintiff was incapacitated and unable to work. At trial the plaintiff will give evidence of becoming aware of the statements made by the defendant and the effect upon him of those events. It would be artificial to prevent the plaintiff giving evidence of his knowledge of Libby undergoing a sexual assault examination as a result of a complaint to Joondalup Health Campus and the effect of those events upon him.
20 Allowing the amendment will cause general prejudice to the defendant in the sense that she will have to respond to new allegations of fact one year and 10 months after the action was commenced and five years after the events complained of. However, the defendant has not pointed to any particular prejudice that will be caused to her by allowing the amendment. The amendment is to plead facts which are within the knowledge of the defendant and as to which she can give direct evidence herself.
21 The action has not yet been listed for trial. The parties have not yet exchanged witness statements. The trial bundle has not yet been compiled. Allowing the amendment will cause some delay to the action. It will necessitate an amendment to the defence. However, the resulting delay will not be great. The defendant is not legally represented. Accordingly, no legal costs will be wasted as a result of the amendment. The relevant limitation period has not yet expired. The plaintiff could commence a new action for injurious falsehood based upon Melanie's alleged statement to doctors and staff at Joondalup Health Campus.
22 Having weighed up all matters relevant to the exercise of the power to permit the amendment I will grant leave to amend the writ. The amendment will be to add to the indorsement of claim a new paragraph to the effect:
(b) verbal statements made of and concerning the plaintiff to doctors or other staff at Joondalup Health Campus on or about 12 September 2007.
(Page 10)
23 Paragraph 15 of the proposed statement of claim should not be allowed in its present form. First, it is embarrassing to plead that the defendant republished the first matter complained of. The publication complained of is a new publication. The plaintiff should plead the publication including the words it is alleged the defendant spoke. Secondly, the pleading should identify the person or persons to whom the defendant published the words. If the plaintiff cannot identify those persons by name then they should be identified by position or occupation or in some other way that identifies them. Thirdly, the plaintiff should plead, if it is his case, words to the effect that as a result of the publication complained of Libby underwent a sexual assault examination at Joondalup Health Campus and when that occurred. Fourthly, the republication of the words complained by Joondalup Health Campus to Princess Margaret Hospital is irrelevant on the present pleading. There is no pleading that the plaintiff became aware at any relevant time of the republication of the words complained of to Princess Margaret Hospital.
24 The plaintiff did not press [16], [17] or [18] and hence I will not refer to them further.
25 Paragraph 19 pleads that in or about 2007 and 2008 the defendant republished the first, second and third matters complained of or similar words to that effect 'where it was the intent to advise' Libby and led her to believe the plaintiff had sexually, physically or mentally abused or harmed her in some way which resulted in extreme behaviour by Libby towards the plaintiff. In the course of argument the plaintiff said that [19] intends to plead that the defendant published the first, second and third matters complained of to Libby on more occasions in 2007 and 2008 than the three occasions referred to in the indorsement of claim. The plaintiff moved for leave to amend the indorsement of claim to cover the pleading in proposed [19].
26 Similar considerations apply to this application as apply to the plaintiff's application to amend the indorsement to plead the publication by the plaintiff to the Joondalup Health Campus. It has always been part of the plaintiff's case that the defendant published the false statements complained of to, or in the presence of, Libby and that the publication of those statements to Libby was one of the matters that caused actual loss to the plaintiff. I will allow the amendment if and when the plaintiff further specifies the alleged publications. It will be necessary for the plaintiff to include in the indorsement of claim, and plead in the statement of claim, each publication by identifying the date or approximate date of the publication and the words spoken. If the plaintiff cannot specify the
(Page 11)
- precise publication then he will have to do the best he can to identify the publications. If the plaintiff means to plead that the defendant published the words complained of with the intention that Libby should believe the plaintiff had sexually, physically or mentally abused or harmed her in some way then the plaintiff should plead that. The pleading that the publications to Libby complained of resulted in extreme behaviour by Libby is insufficient. The pleading must identify the nature of the behaviour alleged and how that caused him actual damage.
27 Paragraph 20 pleads that 'all of the parties in 12, 13, 15, 16, 17, 18, 19 above as Third Parties have republished to the plaintiff' the first, second and third matters complained of or words to similar effect 'where it was the intent to communicate that the plaintiff had sexually, physically/mentally abused or harmed [Libby] in some manner or form'. It is then pleaded that this resulted in damage to the plaintiff 'which was the intention and or the natural and probable result of the publications'. I will not allow amendment in those terms. The pleading does not identify the alleged republications, that is, who republished each matter complained of, to whom it was published and when it was republished. The pleading of intention is confusing and may be irrelevant. If it is intended to plead that persons other than the defendant held the specified intention then it is not relevant.
28 The plaintiff does not press [21] so I will make no further reference to it.
29 The proposed amendments to [22] is to plead that by reason of third party publications of the matters complained of and the matters pleaded at [13], [14], [15], [16], [17], [18], [19] and [20] damage was caused to the plaintiff's relationship with Libby, the plaintiff was caused mental anguish and traumatic shock giving rise to or contributing to post traumatic stress disorder and the plaintiff was incapacitated and unable to work and continues to be unable to work. The plaintiff's case is that the defendant's publications caused actual loss to the plaintiff. It is irrelevant to plead that 'third party publications' caused damage to the plaintiff. The plaintiff does not press [16], [17] and [18] and hence those pleas are not relevant. I will not allow the amendments to [22].
30 Paragraph 24 currently pleads that the damage pleaded at [22] and [23] was the result which the defendant intended by the publication of the first, second and third matters complained of or alternatively was the natural and probable result of such publication. The proposed amendment is to add that the damage pleaded at [22] and [23] was the result of the
(Page 12)
- matters pleaded at [12], [13], [14], [15], [16], [17], [18], [19] and [20]. For the reasons I have stated those paragraphs are either defective or not pressed. I will not allow the amendment to [24].
Proposed amended statement of claim in CIV 1027 of 2011
31 Paragraphs 3, 4, 5 and 6 plead the words published by the defendant, their meaning, the persons to whom they were published and that they were false. Paragraph 7 pleads that the words were published by the defendant maliciously. The proposed amended statement of claim adds a new paragraph of particulars of malice. The paragraph is in substance the same as (f) of the particulars of malice proposed to be pleaded by the plaintiff in CIV 1026 of 2011 and is relevant. However, the pleading should not refer to 'the defendant of CIV 1026 of 2011'. The reference is to Melanie. She should be identified in the pleading. The pleading must be a stand alone document. It cannot incorporate by reference matters pleaded in CIV 1026 of 2011.
32 Paragraph 9 pleads that on or about 1 January 2008 the defendant republished the first and second matters complained of in CIV 1026 of 2011 or similar words to that effect 'where it was the intent to advise the plaintiff that he was sexually abusing Libby'. That pleading is defective. It does not identify to whom it is alleged the defendant republished the first and second matters complained of in CIV 1026 of 2011. Further, it is not permissible to plead by incorporating by reference the pleading in CIV 1026 of 2011. The paragraph must set out the facts alleged by the plaintiff. If, as appears to be the case, the publication or publications are the same as the publication pleaded in [3] then it is merely repetitious. I will not allow the amendment to plead [9].
33 Paragraph 10 pleads that in or about 2007 and 2008 the defendant republished the first and second matters complained of in CIV 1026 of 2011 or similar words to that effect where it was the intent to advise Libby and led her to believe the plaintiff had sexually abused her, which resulted in extreme behaviour by Libby towards the plaintiff. This paragraph is defective in form in that it attempts to plead by incorporating by reference matters pleaded in CIV 1026 of 2011. As I have said, the statement of claim must be pleaded as a stand alone document, not incorporate by reference matters pleaded in CIV 1026 of 2011. More fundamentally, the paragraph pleads publications beyond those in the indorsement of claim. I will not give leave to amend the indorsement of claim to include a claim in respect of the publications referred to in [10] of the proposed statement of claim. The pleading is too vague. Some
(Page 13)
- attempt must be made to identify the alleged publications. As I have said before, the pleading of 'extreme behaviour' is inadequate. It fails to state the nature of the behaviour alleged and how that caused actual damage to the plaintiff.
34 Paragraph 11 pleads that on or about 2008, Libby republished the words or similar words used and actions as complained of in [3] to the plaintiff and other third parties. The reference to other third parties fails to state the relevant material facts. The relevant facts include to whom the words were republished. Furthermore, without the third parties being identified it is not possible to determine that republication to those persons is relevant.
35 Paragraph 12 pleads that on or about 1 January 2008, and on or about 16 July 2009, Elizabeth republished the words complained of in [3] to the plaintiff by way of affidavit. The words 'and by way of affidavit' are embarrassing. It is not clear whether the plea is that the words complained of were published by Elizabeth to the plaintiff by way of affidavit, that is, by Elizabeth giving the plaintiff, or causing the plaintiff to be given, an affidavit containing those words or whether it means that the words were published by way of affidavit to other persons. If the intention is to plead that the words were published to other persons by way of affidavit then it is not possible to determine whether or not that is relevant without those persons being identified.
36 Paragraph 13 pleads that on or about 1 January 2008, and on or about 16 July 2009, Pamela republished the words complained of in [3] to the plaintiff and by way of affidavit and attachment marked as PLS1. That plea is defective. There was no attachment to the minute of proposed statement of claim as filed. Furthermore, the plea 'by way of affidavit and attachment marked as PLS1' is embarrassing for the same reason that the words 'and by way of affidavit' are embarrassing in [12].
37 Paragraph 14 pleads that the plaintiff became aware of the publications by the defendant as per [3] on 1 January 2008 and then resigned and ceased to be a director of the company Montagu Holdings Australia Pty Ltd on or before 11 March 2008 and further pleads that the plaintiff provided services by way of service agreements to Montagu Resources Australia Pty Ltd, Montagu Australia Pty Ltd and Montagu Minerals Pty Ltd. The paragraph pleads a temporal connection between the plaintiff becoming aware of the publications and resigning and ceasing to be a director of Montagu Holdings. The paragraph does not plead a causal connection. However, a more fundamental problem is that the
(Page 14)
- second sentence pleads that the plaintiff provided services by way of service agreements to Montagu Resources Australia Pty Ltd, Montagu Australia Pty Ltd and Montagu Minerals Pty Ltd not Montagu Holdings Australia Pty Ltd.
38 Paragraph 16 pleads that the plaintiff suffered loss in the form of salary from Montagu Holdings. Paragraph 14 does not plead that the plaintiff was employed by Montagu Holdings. It is not pleaded that the defendant knew that the plaintiff was a director of Montagu Holdings or was employed by that company. The pleading that the plaintiff provided services by way of service agreements to the three companies listed is irrelevant in the absence of any plea that the plaintiff ceased to provide those services and suffered any consequential loss as a result of the publications complained of.
39 Paragraph 17 currently pleads that the damage pleaded at [8], [9] and [10] was the result which the defendant intended by the publication of the words or alternatively was the natural and probable result of such publication. The proposed amended statement of claim pleads that the damage pleaded at [8], [9] and [10] and the matters pleaded at [11], [12], [13], [14], [15] and [16] was the result which the defendant intended by the publication of the words or alternatively was the natural and probable result by such publication. I will not allow that amendment because the paragraphs referred to are defective for the reasons stated.
Conclusion - CIV 1026 of 2011
40 I will not give leave to amend the statement of claim in accordance with the minute because the proposed statement of claim is defective for the reasons I have stated. I will give leave to amend the indorsement of claim by adding a new paragraph:
(b) verbal statements made of and concerning the plaintiff to doctors or other staff at Joondalup Health Campus on or about 12 September 2007; or words to similar effect.
41 I will give the plaintiff leave to file and serve a further minute of proposed amended statement of claim because there is a possibility that the defects in the proposed statement of claim may be made good. I approach the resolution of the pleadings in this matter with a degree of flexibility bearing in mind that the plaintiff is self-represented and does not have the resources or expertise possessed by legal practitioners. However, justice to the defendant requires that the plaintiff cannot go on indefinitely attempting to amend his statement of claim, particularly
(Page 15)
- where the plaintiff attempts to add in new allegations. The process must come to an end so that the pleadings can be closed and the action proceed. I will give the plaintiff 28 days in which to file and serve a minute of proposed amended statement of claim. I will them permit the plaintiff to apply to amend his statement of claim in accordance with that further proposed amended statement of claim. That application, and any further applications by the plaintiff, will have to be dealt with on their merits. However, if the plaintiff persists in advancing proposed amendments to the statement of claim which are defective the court may come to the view that the plaintiff is unable to plead a statement of claim in proper form and refuse any further applications for leave to amend.
Conclusion - CIV 1027 of 2011
42 I will refuse leave to amend the statement of claim in accordance with the proposed amended statement of claim because the proposed amendments are defective for the reasons I have stated. I will give the plaintiff leave to file a minute of further proposed amended statement of claim within 28 days. The observations I have made in relation to CIV 1026 of 2011 apply equally to CIV 1027 of 2011.
0