Porter v Le [2016] NSWSC 1030

Porter v Le [2016] NSWSC 1030

Leave to amend was granted because the proposed amendments did not raise a new case but addressed the obverse of the plaintiff's existing contention that Panafcort masked symptoms, namely what the plaintiff's condition would or might have been without taking it. Any alleged prejudice to the defendant was more apparent than real and could be accommodated, and the trial judge could address any necessary evidentiary or procedural accommodation. The hearing therefore should not be vacated.

Jurisdiction
Australia
Judgment Date
26 July 2016
Procedural Posture
Common Law Proceedings; Practice and Procedure Ruling on Amendment and Vacation of Hearing / Notice of Motion Dated 20 July 2016 for Leave to Amend Statement of Claim; Defendant's Application to Vacate Hearing Scheduled to Commence on 22 August 2016
Outcome
Leave to amend granted; defendant's application to vacate the hearing dismissed.
Legal Topics
['late Amendment of Statement of Claim' 'vacation of Hearing' 'expert Evidence' 'concurrent Expert Evidence' 'causation Counterfactual']
['practice and Procedure' 'medical Negligence'] ['late Amendment of Statement of Claim' 'vacation of Hearing' 'expert Evidence' 'concurrent Expert Evidence' 'causation Counterfactual']

Case Brief

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Procedural Posture

Common Law Proceedings; Practice and Procedure Ruling on Amendment and Vacation of Hearing / Notice of Motion Dated 20 July 2016 for Leave to Amend Statement of Claim; Defendant's Application to Vacate Hearing Scheduled to Commence on 22 August 2016

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to further amend his statement of claim shortly before the listed hearing.' 'Whether the proposed amendments raised a new case or merely formalised the case and expert issues already being addressed.' 'Whether the hearing scheduled to commence on 22 August 2016 should be vacated because of alleged prejudice arising from late-served evidence.']

Ratio Decidendi

Leave to amend was granted because the proposed amendments did not raise a new case but addressed the obverse of the plaintiff's existing contention that Panafcort masked symptoms, namely what the plaintiff's condition would or might have been without taking it. Any alleged prejudice to the defendant was more apparent than real and could be accommodated, and the trial judge could address any necessary evidentiary or procedural accommodation. The hearing therefore should not be vacated.

Court Disposition

Leave to amend granted; defendant's application to vacate the hearing dismissed.

Orders

  • ['Grant leave to the plaintiff to amend his statement of claim in the form attached to the letter dated 20 July 2016 annexed to the affidavit of Natalie Aprea affirmed 20 July 2016 and marked "O".' "The defendant's application to vacate the hearing scheduled to commence on 22 August 2016 is dismissed."]