David Millar v Lynette McDade [2017] NSWSC 984

David Millar v Lynette McDade [2017] NSWSC 984

The Court found that the disputed proposed amendments largely concerned particulars relevant to whether the Director of Military Prosecutions acted with reasonable and probable cause. Questions of admissibility and relevance of particulars to the DMP's state of mind are matters best left for trial. Provided amendments comply with pleading rules as to form, the substance of the proposed amendments is allowed.

Parties
Plaintiff: David Millar; First Defendant: Lynette McDade; Second Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
21 July 2017
Procedural Posture
Application to Amend Statement of Claim in Civil Proceedings, Malicious Prosecution / Interlocutory Application for Amendment of Pleadings
Outcome
Leave granted to amend statement of claim; interlocutory procedural orders made.
Legal Topics
Amendment of Pleadings, Malicious Prosecution, Particulars of Pleadings, Reasonable and Probable Cause, Uniform Civil Procedure Rules 2005 (nsw)
Civil Procedure Amendment of Pleadings Malicious Prosecution Particulars of Pleadings Reasonable and Probable Cause Uniform Civil Procedure Rules 2005 (nsw)

Case Brief

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Parties

David Millar

Plaintiff

Lynette McDade

First Defendant

Commonwealth of Australia

Second Defendant

Procedural Posture

Application to Amend Statement of Claim in Civil Proceedings, Malicious Prosecution / Interlocutory Application for Amendment of Pleadings

Legal Issues

  1. 1 Whether to grant leave to the plaintiff to amend the statement of claim in a malicious prosecution action
  2. 2 Whether proposed amendments are particulars or evidence and comply with rules of pleading
  3. 3 Relevance of facts occurring after prosecution for state of mind of prosecutor

Ratio Decidendi

The Court found that the disputed proposed amendments largely concerned particulars relevant to whether the Director of Military Prosecutions acted with reasonable and probable cause. Questions of admissibility and relevance of particulars to the DMP's state of mind are matters best left for trial. Provided amendments comply with pleading rules as to form, the substance of the proposed amendments is allowed.

Court Disposition

Leave granted to amend statement of claim; interlocutory procedural orders made.

Orders

  • Grant leave to the plaintiff to amend the statement of claim in the terms of the further amended statement of claim attached to submissions of 26 June 2017.
  • Dispense with requirements of r 19.5 Uniform Civil Procedure Rules 2005 and allow plaintiff to file a further amended statement of claim re-cast as to form but not substance.