Commonwealth of Australia v Covington-Thomas [2005] NSWCA 299

Commonwealth of Australia v Covington-Thomas [2005] NSWCA 299

Leave to appeal was warranted because Dowd J's orders left the amended statement of claim on foot despite the opponent's disclaimers and the points of claim did not cure the defects, creating an unsatisfactory and confusing pleading regime. The appeal was allowed, the amended statement of claim and points of claim were struck out, and leave was granted to file the further amended statement of claim because it sensibly removed the claims to aggravated and exemplary damages and clarified the allegation of aggravation of injury.

Jurisdiction
Australia
Judgment Date
01 September 2005
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Leave to Amend Pleadings / Court of Appeal Hearing From Orders of Dowd J in the Supreme Court Common Law Division
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['amendment of Statement of Claim' 'pleadings' 'leave to Appeal' 'strike Out' 'psychiatric Injury' 'aggravated Damages' 'exemplary Damages' 'costs of Application for Leave to Appeal']
['civil Procedure' 'torts' 'costs'] ['amendment of Statement of Claim' 'pleadings' 'leave to Appeal' 'strike Out' 'psychiatric Injury' 'aggravated Damages' 'exemplary Damages' 'costs of Application for Leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Leave to Amend Pleadings / Court of Appeal Hearing From Orders of Dowd J in the Supreme Court Common Law Division

Legal Issues

  1. 1 ["Whether Dowd J's decision granting leave to file an amended statement of claim on conditions miscarried." 'Whether the amended statement of claim left the proceedings in an unsatisfactory and confusing state by appearing to allege matters the opponent disclaimed.' 'Whether the points of claim cured or compounded the defects in the amended pleading.' 'What costs order should be made for the application for leave to appeal after the opponent proposed a further amended statement of claim.']

Ratio Decidendi

Leave to appeal was warranted because Dowd J's orders left the amended statement of claim on foot despite the opponent's disclaimers and the points of claim did not cure the defects, creating an unsatisfactory and confusing pleading regime. The appeal was allowed, the amended statement of claim and points of claim were struck out, and leave was granted to file the further amended statement of claim because it sensibly removed the claims to aggravated and exemplary damages and clarified the allegation of aggravation of injury.

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Grant leave to appeal.' 'Direct that the notice of appeal be filed within seven days.' 'Appeal allowed.' 'The amended statement of claim filed pursuant to the orders of Dowd J and the points of claim similarly filed are struck out.' 'The opponent is granted leave to file the further amended statement of claim, a...