Roach v Malsave Pty Ltd [2020] NSWSC 364

Roach v Malsave Pty Ltd [2020] NSWSC 364

The adjournment was refused because the plaintiff's COVID-19, voice and technology concerns did not justify delaying the hearing, and the proposed late evidence and amendments would radically change the pleaded case immediately before trial. The defendant had prepared its case on the existing pleadings and particulars and would be prejudiced by having to investigate new allegations from events in 2013, while the Court and administration of justice would also be prejudiced by loss of the allocated hearing dates and further delay. Having regard to Part 6 of the Civil Procedure Act 2005 (NSW), the plaintiff was not permitted to recast her case at that late stage.

Jurisdiction
Australia
Judgment Date
07 April 2020
Procedural Posture
Civil Proceedings Concerning a Negligence and Statutory Duty Claim Arising From Alleged Vocal Cord Injury Caused by Construction Noise / Plaintiff's Application to Adjourn the Hearing Listed to Commence on 6 April 2020
Outcome
Plaintiff's application to adjourn the hearing refused.
Legal Topics
['adjournment of Hearing' 'case Management' 'pleadings and Particulars' 'late Amendment of Case' 'late Evidence' 'audio Visual Link Evidence' 'expert Evidence']
['civil Procedure' 'personal Injury' 'evidence'] ['adjournment of Hearing' 'case Management' 'pleadings and Particulars' 'late Amendment of Case' 'late Evidence' 'audio Visual Link Evidence' 'expert Evidence']

Case Brief

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Procedural Posture

Civil Proceedings Concerning a Negligence and Statutory Duty Claim Arising From Alleged Vocal Cord Injury Caused by Construction Noise / Plaintiff's Application to Adjourn the Hearing Listed to Commence on 6 April 2020

Legal Issues

  1. 1 ["Whether the hearing should be adjourned because of matters relating to COVID-19, the plaintiff's voice, technology for an audio-visual link hearing, and late evidence." 'Whether the plaintiff should be permitted, immediately before the hearing, to recast her case by relying on new allegations about open laboratory doors, intermittent noise, and noise in the staffroom.' 'Whether the defendant and the administration of justice would suffer prejudice if the adjournment were granted.']

Ratio Decidendi

The adjournment was refused because the plaintiff's COVID-19, voice and technology concerns did not justify delaying the hearing, and the proposed late evidence and amendments would radically change the pleaded case immediately before trial. The defendant had prepared its case on the existing pleadings and particulars and would be prejudiced by having to investigate new allegations from events in 2013, while the Court and administration of justice would also be prejudiced by loss of the allocated hearing dates and further delay. Having regard to Part 6 of the Civil Procedure Act 2005 (NSW), the plaintiff was not permitted to recast her case at that late stage.

Court Disposition

Plaintiff's application to adjourn the hearing refused.

Orders

  • ["Refuse the plaintiff's application to adjourn the hearing of this matter which was listed to commence on 6 April 2020 and will now commence at 10am on 7 April 2020."]