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.

Background:

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?”.

 Ruling

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: sfernando@maxiomlaw.com.au

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