Sliwinski v W Tolson & Company Pty Limited and Ors [2022] NSWDDT 7

Sliwinski v W Tolson & Company Pty Limited and Ors [2022] NSWDDT 7

Leave to amend was granted because refusing the amendment would prevent the Tribunal from determining the real issues between all parties, contrary to the overriding purpose in the Civil Procedure Act 2005 (NSW). Although the plaintiff's preparation had caused difficulties and the Claims Resolution Process had concluded, no hearing date had been set, the Tribunal had power to case manage the matter after the CRP, the third defendant would take over the proposed new defendant's liability, and any prejudice or additional costs did not justify refusing the amendment.

Jurisdiction
Australia
Judgment Date
07 December 2022
Procedural Posture
Dust Diseases Damages Proceedings Concerning Alleged Asbestos Exposure, Asbestosis and Psychological Sequelae / Interlocutory Notice of Motion for Leave to Amend the Amended Statement of Claim After Completion of the Claims Resolution Process
Outcome
The plaintiff's Notice of Motion was granted; costs were reserved and the matter was listed for further directions.
Legal Topics
['amendment of Statement of Claim' 'joinder of Defendant' 'claims Resolution Process' 'prejudice From Amendment' 'case Management' 'costs of Motion']
['civil Procedure' 'dust Diseases' 'personal Injury'] ['amendment of Statement of Claim' 'joinder of Defendant' 'claims Resolution Process' 'prejudice From Amendment' 'case Management' 'costs of Motion']

Case Brief

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Procedural Posture

Dust Diseases Damages Proceedings Concerning Alleged Asbestos Exposure, Asbestosis and Psychological Sequelae / Interlocutory Notice of Motion for Leave to Amend the Amended Statement of Claim After Completion of the Claims Resolution Process

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to amend the Amended Statement of Claim to plead further alleged asbestos exposure and join an additional defendant after the Claims Resolution Process had concluded.' 'Whether the proposed amendment would cause irreparable prejudice to existing defendants that could not be addressed by costs or case management.' 'Whether the Tribunal had power to allow the amendment and manage the proceedings after the Claims Resolution Process had concluded.']

Ratio Decidendi

Leave to amend was granted because refusing the amendment would prevent the Tribunal from determining the real issues between all parties, contrary to the overriding purpose in the Civil Procedure Act 2005 (NSW). Although the plaintiff's preparation had caused difficulties and the Claims Resolution Process had concluded, no hearing date had been set, the Tribunal had power to case manage the matter after the CRP, the third defendant would take over the proposed new defendant's liability, and any prejudice or additional costs did not justify refusing the amendment.

Court Disposition

The plaintiff's Notice of Motion was granted; costs were reserved and the matter was listed for further directions.

Orders

  • ['I make an order in accordance with prayer 1 of the Notice of Motion filed 5 October 2022.' 'Costs of the Motion are reserved.' 'Listed for further directions before me on 30 January 2023.']