Williamson v Scarano

This matter concerned an appeal by Williamson (the appellant) against the refusal of an application for leave to amend pleadings. The dispute arose in the context of an application for summary dismissal. The appeal was heard by Meagher, Hoeben and Ward JJA.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in refusing leave to amend the pleadings. Specifically, the court considered whether the primary judge was entitled to infer that the proposed amendments, which had been previously pleaded and then abandoned, were sought solely to resist the application for summary dismissal, without any adequate explanation for their revival.

The Court of Appeal reasoned that the primary judge was entitled to make such an inference. In the absence of any satisfactory explanation for the revival of abandoned claims, and given the timing of the application in response to a summary dismissal application, the primary judge was justified in concluding that the proposed amendments were tactical and lacked merit. The court applied principles relating to the amendment of pleadings, particularly where such amendments appear to be an attempt to avoid the consequences of an application for summary dismissal.

The appeal was allowed in part. The orders made by Bryson AJ on 4 November 2011, specifically orders 3, 4, 5, 7, 8 and 9, were set aside. The respondent's notice of motion dated 1 July 2011 was dismissed. The appellant was ordered to pay 90 per cent of the respondent's costs of the appeal.