Kwiatkowski v Plum Pictures Ltd [2022] NSWSC 362

Kwiatkowski v Plum Pictures Ltd [2022] NSWSC 362

Leave to amend was appropriate because the plaintiff confined the references to the Work Health and Safety Act 2011 (NSW) and the Marine Safety Act 1998 (NSW) to particulars of negligence, the amendments relied on the same factual matrix as the existing negligence claim, the first defendant relied only on presumptive rather than actual prejudice, no trial date had been set, the first defendant's evidence had not been filed, and the amendments would not unduly delay the future resolution of the real issues. Substituted service was appropriate because attempts to serve the second defendant at her recorded address failed, investigations did not reveal a usable physical address, and a website...

Jurisdiction
Australia
Judgment Date
31 March 2022
Procedural Posture
Civil Personal Injury Proceedings / Notice of Motion for Leave to File an Amended Statement of Claim and for Substituted Service on the Second Defendant
Outcome
The Court directed the plaintiff to file a Short Minute of Order granting leave to file the proposed Amended Statement of Claim and for substituted service on the second defendant; the plaintiff was ordered to pay the first defendant's costs of the Motion and any costs thrown away by the amendment.
Legal Topics
['amendment to Statement of Claim' 'leave to Amend Pleadings' 'limitation Period' 'breach of Statutory Duty as Particulars of Negligence' 'substituted Service' 'costs']
['civil Procedure' 'negligence' 'personal Injury' 'work Health and Safety' 'marine Safety'] ['amendment to Statement of Claim' 'leave to Amend Pleadings' 'limitation Period' 'breach of Statutory Duty as Particulars of Negligence' 'substituted Service' 'costs']

Case Brief

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Procedural Posture

Civil Personal Injury Proceedings / Notice of Motion for Leave to File an Amended Statement of Claim and for Substituted Service on the Second Defendant

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file the proposed Amended Statement of Claim, including amendments referring to the Work Health and Safety Act 2011 (NSW) and the Marine Safety Act 1998 (NSW).' 'Whether the contentious amendments pleaded a new cause of action or could be confined to particulars of negligence.' 'Whether delay and presumptive prejudice justified refusing leave to amend.' 'Whether substituted service should be permitted on the second defendant.']

Ratio Decidendi

Leave to amend was appropriate because the plaintiff confined the references to the Work Health and Safety Act 2011 (NSW) and the Marine Safety Act 1998 (NSW) to particulars of negligence, the amendments relied on the same factual matrix as the existing negligence claim, the first defendant relied only on presumptive rather than actual prejudice, no trial date had been set, the first defendant's evidence had not been filed, and the amendments would not unduly delay the future resolution of the real issues. Substituted service was appropriate because attempts to serve the second defendant at her recorded address failed, investigations did not reveal a usable physical address, and a website...

Court Disposition

The Court directed the plaintiff to file a Short Minute of Order granting leave to file the proposed Amended Statement of Claim and for substituted service on the second defendant; the plaintiff was ordered to pay the first defendant's costs of the Motion and any costs thrown away by the amendment.

Orders

  • ['The Court directs the plaintiff to file a Short Minute of Order granting leave to file the proposed Amended Statement of Claim and for substituted service on the second defendant.' "The plaintiff will pay the first defendant's costs of the Motion and any costs thrown away as a consequence of the amendment to the...