GREATER LITHGOW CITY COUNCIL v WOLFENDEN [2007] NSWCA 180

GREATER LITHGOW CITY COUNCIL v WOLFENDEN [2007] NSWCA 180

Section 65(4) of the Civil Procedure Act made clear that s 65 did not limit the general amendment power in s 64, and the settled construction from McGee v Yeomans and later Court of Appeal authority should be applied. The District Court had power to grant leave to amend to add the statute barred cause of action, and there was no basis to interfere with the discretion exercised in favour of the plaintiff because the frank injury and its connection with the epilepsy had been disclosed early to the employer.

Jurisdiction
Australia
Judgment Date
16 July 2007
Procedural Posture
Application for Leave to Appeal and Appeal in Civil Proceedings / Court of Appeal Application for Leave to Appeal From District Court Decision Granting Leave to Amend Statement of Claim
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['amendment of Pleadings' 'statute Barred Cause of Action' 'civil Procedure Act Ss 64 and 65' "workers' Common Law Damages"]
['practice and Procedure' 'limitation' 'workers Compensation'] ['amendment of Pleadings' 'statute Barred Cause of Action' 'civil Procedure Act Ss 64 and 65' "workers' Common Law Damages"]

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal in Civil Proceedings / Court of Appeal Application for Leave to Appeal From District Court Decision Granting Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether s 65 of the Civil Procedure Act was a code excluding any power under s 64 to allow an amendment adding a statute barred cause of action.' 'Whether the Court should follow the line of authority based on McGee v Yeomans permitting amendments under the general amendment power in cases not covered by the special rule.' "Whether there was any basis to interfere with the District Court judge's discretionary decision to allow the amendment."]

Ratio Decidendi

Section 65(4) of the Civil Procedure Act made clear that s 65 did not limit the general amendment power in s 64, and the settled construction from McGee v Yeomans and later Court of Appeal authority should be applied. The District Court had power to grant leave to amend to add the statute barred cause of action, and there was no basis to interfere with the discretion exercised in favour of the plaintiff because the frank injury and its connection with the epilepsy had been disclosed early to the employer.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Leave to appeal granted.' 'The appellant to file a notice of appeal within seven days.' 'Appeal dismissed with costs.']