Crawley v Vero Insurance Limited & Ors (No 2) [2012] NSWSC 1053

Crawley v Vero Insurance Limited & Ors (No 2) [2012] NSWSC 1053

The amendment was allowed because proposed paragraph 31 raised an arguable factual and legal basis for declaratory relief: it was reasonably arguable that a determination under s 409(1)(c) of the Legal Profession Act 2004 or s 44 of the Legal Profession Act 1987 could create a legal entitlement to the payments determined, and the invoice material was sufficient to permit the allegation to be pleaded. No prejudice or delay was argued. The relief was required to refer also to s 44 of the Legal Profession Act 1987 because many invoices appeared to have been rendered and paid before s 409 commenced. Discovery was ordered for categories 2, 5, 11 and 12, but category 4 was refused as unduly wide.

Jurisdiction
Australia
Judgment Date
06 September 2012
Procedural Posture
Common Law Interlocutory Application for Leave to Amend Pleadings, Discovery and Leave to Administer Interrogatories / Notice of Motion Filed 16 August 2012; Application for Interrogatories Not Pressed; Amendment and Discovery Determined
Outcome
Amendment allowed; limited discovery ordered; notice of motion otherwise dismissed.
Legal Topics
['leave to Amend Pleadings' 'utility of Proposed Amendment' 'discovery' "solicitors' Mutual Indemnity Fund" 'legal Profession Act 2004 S 409' 'legal Profession Act 1987 S 44']
['practice and Procedure' 'professional Indemnity Insurance' 'legal Profession Regulation'] ['leave to Amend Pleadings' 'utility of Proposed Amendment' 'discovery' "solicitors' Mutual Indemnity Fund" 'legal Profession Act 2004 S 409' 'legal Profession Act 1987 S 44']

Case Brief

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Procedural Posture

Common Law Interlocutory Application for Leave to Amend Pleadings, Discovery and Leave to Administer Interrogatories / Notice of Motion Filed 16 August 2012; Application for Interrogatories Not Pressed; Amendment and Discovery Determined

Legal Issues

  1. 1 ["Whether the plaintiff should have leave to amend the statement of claim to plead that LawCover determined to pay amounts from the Solicitors' Mutual Indemnity Fund and to seek declaratory relief." 'Whether the proposed amendment had sufficient utility and disclosed an arguable legal entitlement arising from a determination under s 409 of the Legal Profession Act 2004 or s 44 of the Legal Profession Act 1987.' 'Whether there was a sufficient factual basis for the proposed allegation that LawCover made the pleaded determination.' 'Whether further discovery should be ordered in categories 2, 5, 11 and 12, and whether category 4 was too wide.']

Ratio Decidendi

The amendment was allowed because proposed paragraph 31 raised an arguable factual and legal basis for declaratory relief: it was reasonably arguable that a determination under s 409(1)(c) of the Legal Profession Act 2004 or s 44 of the Legal Profession Act 1987 could create a legal entitlement to the payments determined, and the invoice material was sufficient to permit the allegation to be pleaded. No prejudice or delay was argued. The relief was required to refer also to s 44 of the Legal Profession Act 1987 because many invoices appeared to have been rendered and paid before s 409 commenced. Discovery was ordered for categories 2, 5, 11 and 12, but category 4 was refused as unduly wide.

Court Disposition

Amendment allowed; limited discovery ordered; notice of motion otherwise dismissed.

Orders

  • ['The Plaintiff have leave to file and serve a Further Amended Statement of Claim in the form attached to its outline of submissions dated 31 August 2012 with the addition of the words "or section 44 of the Legal Profession Act 1987" after the words "Legal Profession Act 2004" in prayer 5 of the relief claimed.'...