Tam v Super Seasons Pty Ltd [2024] NSWSC 873

Tam v Super Seasons Pty Ltd [2024] NSWSC 873

Leave was granted because, although the amendment application was very late and the explanation based on late briefing of new counsel weighed against the exercise of discretion, the proposed amended third cross claim was essentially the same restitutionary case filed in June 2023, the remaining amendments were largely refinements of that claim, no unmanageable forensic prejudice was shown, and the imperative was that the matter proceed without wasting further hearing days. Certain proposed pleading matters were rejected or confined consistently with the reasons.

Jurisdiction
Australia
Judgment Date
16 July 2024
Procedural Posture
Civil Procedure Interlocutory Application in Personal Injury and Workers Compensation Recovery Proceedings / Application for Leave to Amend the Third Cross Claim During Listed Hearing
Outcome
Leave granted to amend the third cross claim consistently with the reasons.
Legal Topics
['amendment of Pleadings' 'late Application for Amendment' 'unjust Enrichment' 'payment by Mistake' 'recovery of Workers Compensation Payments' 'forensic Prejudice' 'court Resources']
['civil Procedure' 'workers Compensation' 'restitution'] ['amendment of Pleadings' 'late Application for Amendment' 'unjust Enrichment' 'payment by Mistake' 'recovery of Workers Compensation Payments' 'forensic Prejudice' 'court Resources']

Case Brief

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Procedural Posture

Civil Procedure Interlocutory Application in Personal Injury and Workers Compensation Recovery Proceedings / Application for Leave to Amend the Third Cross Claim During Listed Hearing

Legal Issues

  1. 1 ['Whether the Workers Compensation Nominal Insurer should be granted leave to amend the third cross claim shortly before or during the hearing.' 'Whether the proposed amendments would cause forensic prejudice to the Victorian WorkCover Authority.' 'Whether the lateness of the amendment application and the explanation based on late briefing of new counsel should lead to refusal of leave.' 'Whether aspects of the proposed amended pleading should be rejected or confined.']

Ratio Decidendi

Leave was granted because, although the amendment application was very late and the explanation based on late briefing of new counsel weighed against the exercise of discretion, the proposed amended third cross claim was essentially the same restitutionary case filed in June 2023, the remaining amendments were largely refinements of that claim, no unmanageable forensic prejudice was shown, and the imperative was that the matter proceed without wasting further hearing days. Certain proposed pleading matters were rejected or confined consistently with the reasons.

Court Disposition

Leave granted to amend the third cross claim consistently with the reasons.

Orders

  • ['Grant leave to the cross claimant to amend the third cross claim consistently with the reasons of the judgment.' 'The proposed pleading was not permitted to include sub-paras 13(a) to (e) and the word "presumptively" in sub-para 13(f), consistently with the reasons.']