Abrook, R. & L. & Ors v Patterson, G. & Ors [1995] FCA 516

Abrook, R. & L. & Ors v Patterson, G. & Ors [1995] FCA 516

Leave to amend was refused because, although refusal might substantially prejudice Horwaths, granting leave two weeks before trial would substantially prejudice the applicants by raising wider factual issues and potential joinder issues, would complicate the fixed trial management, and the unexplained delay after awareness of the AWA Case made the lateness of the application a strong factor against exercising the discretion to permit amendment.

Jurisdiction
Australia
Judgment Date
24 July 1995
Procedural Posture
Application for Leave to Amend Defence / Pre Trial Application Before Hearing Listed to Commence on 7 August 1995
Outcome
Application dismissed with costs.
Legal Topics
['late Amendment of Defence' 'contributory Negligence' 'prejudice' 'joinder of Parties' 'contribution Between Tortfeasors']
['civil Procedure' 'pleadings' 'negligence'] ['late Amendment of Defence' 'contributory Negligence' 'prejudice' 'joinder of Parties' 'contribution Between Tortfeasors']

Case Brief

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Procedural Posture

Application for Leave to Amend Defence / Pre Trial Application Before Hearing Listed to Commence on 7 August 1995

Legal Issues

  1. 1 ['Whether the first to seventh respondents should be granted leave shortly before trial to amend their defence to plead contributory negligence by FSFS.' 'Whether the proposed amendment would cause substantial prejudice to the applicants, including by requiring consideration of the conduct of former directors, trustees and managers and potential joinder of those persons.' 'Whether refusal of leave would cause substantial prejudice to Horwaths by preventing reliance on contributory negligence if liability were established.' 'Whether the lateness of the application and the fixed hearing date weighed against granting leave.']

Ratio Decidendi

Leave to amend was refused because, although refusal might substantially prejudice Horwaths, granting leave two weeks before trial would substantially prejudice the applicants by raising wider factual issues and potential joinder issues, would complicate the fixed trial management, and the unexplained delay after awareness of the AWA Case made the lateness of the application a strong factor against exercising the discretion to permit amendment.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The first to seventh respondents pay the applicants' costs of the application."]