Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) [2016] FCA 716

Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) [2016] FCA 716

Leave to add many proposed particulars was refused because allegations of events before the third statement of claim could and should have been pleaded earlier, the prior omission resulted from a strategic decision by the applicant's solicitors for which she was bound, and allowing them shortly before trial would likely require vacating the trial dates. Proposed allegations about later events involving additional persons were also refused because the pleading did not identify the factual and legal basis for attributing that conduct to the respondents and would likely disrupt the trial. Limited amendments that did not raise those difficulties were permitted, and subparagraph 18(h) was...

Jurisdiction
Australia
Judgment Date
16 June 2016
Procedural Posture
Employment and Industrial Relations Proceeding Alleging Victimisation in Contravention of S 469.5 of the Corporations (aboriginal and Torres Strait Islander) Act 2006 (cth) / Interlocutory Application Dated 3 June 2016 Seeking Leave to File a Fourth Statement of Claim
Outcome
Interlocutory application dismissed in part; limited leave to amend granted; subparagraph 18(h) struck out; applicant ordered to pay respondents' costs of the interlocutory application.
Legal Topics
['victimisation' 'pleadings' 'leave to Amend' 'strike Out' 'costs' 'attribution of Conduct to a Corporation']
['employment and Industrial Relations' 'corporations (aboriginal and Torres Strait Islander) Law' 'civil Procedure'] ['victimisation' 'pleadings' 'leave to Amend' 'strike Out' 'costs' 'attribution of Conduct to a Corporation']

Case Brief

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Procedural Posture

Employment and Industrial Relations Proceeding Alleging Victimisation in Contravention of S 469.5 of the Corporations (aboriginal and Torres Strait Islander) Act 2006 (cth) / Interlocutory Application Dated 3 June 2016 Seeking Leave to File a Fourth Statement of Claim

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to file a fourth statement of claim adding particulars to paragraphs 18 and 19.' "Whether proposed particulars concerning events before the third statement of claim should be permitted when the applicant's former solicitors had been apprised of them earlier." 'Whether proposed particulars concerning later events adequately pleaded a basis for attributing conduct of other persons to the respondents.' 'Whether subparagraph 18(h) of the third statement of claim should remain after the applicant conceded it was not correct.' 'What costs order should be made on the interlocutory application.']

Ratio Decidendi

Leave to add many proposed particulars was refused because allegations of events before the third statement of claim could and should have been pleaded earlier, the prior omission resulted from a strategic decision by the applicant's solicitors for which she was bound, and allowing them shortly before trial would likely require vacating the trial dates. Proposed allegations about later events involving additional persons were also refused because the pleading did not identify the factual and legal basis for attributing that conduct to the respondents and would likely disrupt the trial. Limited amendments that did not raise those difficulties were permitted, and subparagraph 18(h) was...

Court Disposition

Interlocutory application dismissed in part; limited leave to amend granted; subparagraph 18(h) struck out; applicant ordered to pay respondents' costs of the interlocutory application.

Orders

  • ['Subparagraph 18(h) of the third statement of claim is struck out.' 'The applicant has leave to file a fourth statement of claim incorporating the amendments foreshadowed in the opening words to paragraph 18 of Exhibit A, except for the words "and Officers of the first respondent and their family".' 'The applicant...