Amending Pleadings After Issuing Proceedings

By: Sach Fernando

 County Court Melbourne

Andrew Gardiner v Robert Forsyth [2020] VCC 413

Principles of case management require Courts to not only consider the interest of justice, but also public interest in proper and efficient use of court resources. 

The ruling of Her Honour Judge Tsalamandris pertains to the Plaintiff’s application to make amendments to the Statement of Claim at a late stage in the proceedings.


The Plaintiff seeks damages against Urologist, Dr Robert Forsyth, for negligent medical treatment.

The proceeding was listed for a trial by jury on 12 March 2020, and the Plaintiff sought to amend his Statement of Claim on 4 February 2020, some 16 months after it was first filed.

The Defendant opposed the proposed amendment on the grounds that it would be prejudiced, and that confidence in the administration of justice would be undermined if permission was granted so late in the proceedings. The Defendant submitted to the Court that, inter alia, there would be significant cost consequences and an unavoidable delay suffered by the Defendant if the amendment was permitted. However, they conceded that there was no evidence of actual irremediable prejudice to the Defendant in the event the amendment was permitted.

The Law

Section 47 of the Civil Procedure Act 2010 provides the types of orders that a Court can make to actively case manage.

Her Honour referred to the High Court’s decision in Aon Risk Services Australia Limited v Australian National University[1] to outline the factors that a Court should consider in determining whether to grant leave for a pleading to be amended. These include:

a)   Whether there will be a substantial delay caused by the amendment;

b)   The extent of any wasted costs;

c)   Whether there is an irreparable element of unfair prejudice caused by the amendment;

d)   Concerns of case management arising from the stage in the proceeding when the amendment is sought;

e)   Whether the grant of the amendment will lessen public confidence in the judicial system; and

f)    Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[2]

Her Honour further referred to the recent Court of Appeal decision of Billington v Sussan Corporation Australia[3] where the Court refused the Plaintiff’s appeal of a decision by the trial judge to refuse his proposed amendment to the Statement of Claim introducing a claim for damages in battery. In that case, the amended Statement of Claim was served on the Defendant one day before trial. The Court of Appeal upheld the trial judge’s decision to refuse the late amendment as the proposed amendment would, in part, involve irremediable unfair prejudice to the Defendant.

Her Honour emphasised that the Courts are required to perform a balancing act when determining whether to grant leave to amend pleading, with the overwhelming consideration being, “what do the interest of justice dictate?”.


Her Honour permitted the Plaintiff’s application to amend his Statement of Claim. She considered that refusing the application would result in overwhelming prejudice in the running of his case, and that justice demanded that he not be shut out from doing so.

Her Honour further considered that, in this case, the consequential prejudice to the Defendant could be remedied by a costs order.

Sach Fernando is an Accredited Specialist in Personal Injury Law and a Principal at Maxiom Injury Lawyers.

[1] (2009) 239 CLR 175 

[2] Justice J Forrest in Ultra Thoroughbred Racing v Those Certain Underwriters & Ors [2011] VSC 370 

[3] [2020] VSCA 12  

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: [email protected]

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Strictly Confidential

By: Sach Fernando

strictly confidential

Subpoenas are commonly issued in litigation to investigate various aspects of a case. In personal injury litigation subpoenas are primarily issued for the purposes of assessing the authenticity or severity of a Plaintiff’s injuries – considerations that are fundamental in the assessment of their damages.

Where the documents sought contain confidential communication discussed by the Plaintiff with their doctors about a sexual assault, the party issuing the subpoena must seek leave of the Court to compel the production of those documents and afford the doctor an opportunity to raise any objections they have.

In the matter of Rebecca Slater (a pseudonym) v Unilodge Australia Pty Ltd (Ruling) [2018] VCC 2072, the Court was not satisfied that the preconditions required to grant leave had been satisfied with respect to the records of the Plaintiff’s former Psychiatrist. 

1.     Background

 1.1.  The Plaintiff was a young female resident of Unilodge, a provider of student accommodation. In July 2015 a male a resident at Unilodge entered the female bathroom and filmed the Plaintiff showering. The male resident was subsequently evicted from the premises. Despite the eviction, it is alleged that he entered Unilodge on multiple occasions and was sighted by the Plaintiff. It is alleged that the subsequent exposure to the male resident caused a further deterioration in the Plaintiff’s psychiatric condition.

1.2.  The Defendant issued eight subpoenas addressed to, inter alia, the Plaintiff’s former psychiatrist.

1.3.  The Plaintiff had exchanged with the Defendant some records of her former treating psychiatrist, however objected to the production of the subpoenas issued by the Defendant pursuant to Section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“the Act”).  

1.4.  The basis of the objection was that:

 (a)  The subpoenaed material contains “confidential communication” between a person against whom a sexual offence has, or is alleged to have been committed, to a registered medical practitioner or counsellor.

 (b)  The Defendant had not complied with the requirement of leave prior to issuing a subpoena or adducing evidence of “confidential communication”.

1.5.  The Defendant argued that:

 (a)  Section 32C of the Act did not apply because the alleged sexual assault or incident was not a sexual offence as defined by Section 32B of the Act; and

 (b)  Even if Section 32C did apply, leave should be granted to the Defendant to inspect the records given the nature of the proceeding and in all the circumstances of the case. 

 2.     The Law

 2.1.  Section 32B of the Act defines “sexual offences” as an offence to which clause 1 of schedule 1 of the Sentencing Act 1991 applies.

 2.2.  Section 32B of the Act also defines “confidential communication” as communication made in confidence between a person against whom a sexual offence has been or is alleged to have been committed.

2.3.  Section 32C of the Act provides, prima facie, for the exclusion of evidence of “confidential communication”. The Section provides that “confidential communication” is not to be disclosed unless the Court grants leave.

2.4.  Section 32D(1) of the Act requires the Court to be satisfied by three sequential preconditions before granting leave in these matters:

1)     That the evidence in the doctor’s notes will have substantial probative value to a fact in issue

2)     Court must be positively satisfied of a negative, namely that other evidence of similar or greater probative value is unavailable.

3)     Protect confidentiality of the proscribed class of evidence in the public interest.

2.5.  The procedure which is required to be applied by a party seeking to produce the information is set out in the Common Law Division Practice Note (PNCLD2-2018) of 1 August 2018 ) (“Practice Note”).

 3.     Ruling

 3.1.  Judicial Registrar Gurry identified two entries within the records of the Plaintiff’s Psychiatrist as falling within the definition of “confidential communication”.

3.2.  These two entries contained details of a sexual assault that the Plaintiff had discussed with her Psychiatrist and was unrelated to the July 2015 incident. The assault would however result in an offence under Schedule 1(1) of the Sentencing Act 1991 (Vic).

3.3.  The two entries pertained to a sexual assault on the Plaintiff which took place when she was a minor. However, it would be the Plaintiff’s evidence that she was fearful that, as a result of the July 2015 incident which took place at Unilodge, she would be subjected to a similar offence. Accordingly, the Court considered that these two entries would be of substantial probative value to a fact in issue in the present case- causation.

3.4.  The Court also considered that the Defendant had an opportunity to have the Plaintiff examined, and therefore they were not precluded from making a full defence on the non-release of the medical records in respect of the two entries.

3.5.  Finally, the Court found that there would be substantial harm caused to the Plaintiff by the release of the two entries and releasing them would be contrary to the intended purpose of the legislation.

3.6.  Accordingly, the Court was not satisfied that the three preconditions had been satisfied to release the Plaintiff’s Psychiatrist’s records to the Defendant and proposed that the subpoena to the Psychiatrist be set aside and re-issued in the appropriate manner as outlined in the Act and Practice Note.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: [email protected]

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