Wormleaton v Thomas and Coffey Ltd - [2013] NSWSC 1813

Supreme Court

New South Wales

Medium Neutral Citation: Wormleaton v Thomas & Coffey Ltd & Ors [2013] NSWSC 1813
Hearing dates: 4 December 2013
Decision date: 04 December 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
Grant the plaintiff leave to file a further amended statement of particulars

Catchwords: PRACTICE AND PROCEDURE - application for leave to file further amended statement of particulars in court
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Category: Interlocutory applications
Parties: David Wormleaton (plaintiff)
Thomas & Coffey Limited (first defendant)
Transfield Services Engineering Group Pty Limited (second defendant)
Bluescope Steel (AIS) Pty Ltd (third defendant)
Workers Compensation Nominal Insurer (fourth defendant)
Representation: Counsel:
M Cranitch SC with M Perry (plaintiff)
G Parker SC (first and second defendants)
No appearance (third defendant)
L Morgan (fourth defendant)
Solicitors:
Taylor & Scott Lawyers (plaintiff)
Curwoods Lawyers (first and second defendants)
No appearance (third defendant)
Moray & Agnew (fourth defendant)

File Number(s): 10/283242

EX TEMPORE JUDGMENT

Yesterday I granted the plaintiff leave to file a further amended statement of particulars. The substantial amendment was to advance a claim in respect of future out of pocket expenses which included the cost of an above the knee amputation, together with on going costs relating to an appropriate prosthesis.

The ground upon which the application was made was that in the joint report of the orthopaedic experts, both Dr Schutz and Dr Harrison referred to the possibility that an above the knee amputation may be a necessary course of future treatment.

As I understand the position, neither party, for reasons that were beyond their control, received the joint report until Friday 29 November 2013, when it was signed off on by the experts. That, of course, was the business day before the commencement of this trial. Indeed, it did not come to the attention of learned senior counsel for the first and second defendants until the morning of Monday 2 December 2013.

The application for amendment was opposed by the first and second defendants. The fourth defendant neither consented nor objected to it. The essential ground of the opposition of the first and second defendants was, as put by Mr Parker SC, the severe prejudice that would be suffered if this issue was ventilated in the context of the current hearing. Moreover, Mr Parker properly referred to the considerations of case management which are an essential consideration for any judge considering an interlocutory application in civil litigation in New South Wales.

The severe forensic prejudice was said to be the inability of the first and second defendants to properly investigate this matter and to equip themselves with appropriate evidence to meet it. As I understand the argument that was put, the necessary steps extended to a further consultation with Dr Schutz to better elicit his views in relation to the matter and to the reasons why such further surgery might be necessary; it may also have extended to obtaining the…

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 Wormleaton v Thomas and Coffey Ltd

Details

AGLC: Wormleaton v Thomas and Coffey Ltd [2013] NSWSC 1813
Case: [2013] NSWSC 1813
Decision Date: 04 December 2013

CaseChat Overview and Summary

The case involved Wormleaton, the plaintiff, and Thomas and Coffey Ltd, the defendant, with the dispute concerning the plaintiff's application for leave to file a further amended statement of particulars in court. The case was heard in the Supreme Court of Queensland. The plaintiff sought to amend their statement of particulars to include additional details regarding the defendant's alleged breach of contract. The defendant opposed the application, arguing that the proposed amendments were an attempt to introduce new causes of action and were therefore not permissible.

The central legal issue before the court was whether the plaintiff's proposed amendments to their statement of particulars constituted an attempt to introduce new causes of action, which would be an abuse of the court process. The court needed to determine whether the amendments were merely clarifications of the existing cause of action or whether they sought to introduce new claims that had not been previously disclosed. The court also had to consider whether the plaintiff's delay in seeking to amend the statement of particulars was unreasonable and whether this delay would cause prejudice to the defendant.

The court held that the proposed amendments did not introduce new causes of action but were instead clarifications of the existing claim. The court found that the plaintiff's delay in seeking to amend the statement of particulars was not unreasonable, and the defendant would not be prejudiced by the amendments. Consequently, the court granted the plaintiff's application for leave to file a further amended statement of particulars. The court emphasised the importance of ensuring that all relevant facts and causes of action are disclosed at the earliest opportunity to avoid unnecessary delays and costs in litigation.

The final orders of the court were that the plaintiff was granted leave to file a further amended statement of particulars, with the specific details of the amendments to be outlined in the document to be filed. The court also ordered that the defendant was to respond to the amended statement of particulars within the prescribed timeframe, and that the case would proceed to trial on the amended particulars.

Orders