McGarry v Southern NSW Local Health District [2017] NSWSC 305

McGarry v Southern NSW Local Health District [2017] NSWSC 305

Leave to file and serve the second further amended statement of claim was granted because the hearing date remained months away, the amendments expanded existing negligence claims rather than pleading substantive new causes of action, the expanded allegations were tolerably clear and capable of answer, any forensic disadvantage from the lost rasp could be considered by the trial judge, and costs were a sufficient remedy for the defendants. The timetable motion was dismissed because experts could be asked to address alternative assumptions, including assumptions reflecting Dr Nott's expected evidence, the timetable had been agreed months earlier, and any advantage from giving the experts...

Jurisdiction
Australia
Judgment Date
29 March 2017
Procedural Posture
Personal Injury Negligence Proceedings / Interlocutory Notices of Motion for Leave to Amend Pleadings and for Interruption or Vacation of Expert Evidence Timetable Before Trial
Outcome
Leave granted on the plaintiff's notice of motion of 17 February 2017 to file and serve a second further amended statement of claim; the plaintiff's notice of motion of 19 January 2017 was dismissed; costs ordered against the plaintiff as specified.
Legal Topics
['leave to Amend Pleadings' 'further Amended Statement of Claim' 'expert Evidence Timetable' 'expert Conclave' 'costs of Interlocutory Motions']
['civil Procedure' 'personal Injury' 'negligence'] ['leave to Amend Pleadings' 'further Amended Statement of Claim' 'expert Evidence Timetable' 'expert Conclave' 'costs of Interlocutory Motions']

Case Brief

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Procedural Posture

Personal Injury Negligence Proceedings / Interlocutory Notices of Motion for Leave to Amend Pleadings and for Interruption or Vacation of Expert Evidence Timetable Before Trial

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file and serve a second further amended statement of claim expanding allegations against the defendants.' 'Whether the proposed amendments would unfairly prejudice the defendants or endanger the hearing date.' "Whether the agreed timetable for preparation of expert evidence should be interrupted or set aside so that Dr Nott's witness statement would be available before the expert conclave." "What costs orders should be made on the plaintiff's notices of motion."]

Ratio Decidendi

Leave to file and serve the second further amended statement of claim was granted because the hearing date remained months away, the amendments expanded existing negligence claims rather than pleading substantive new causes of action, the expanded allegations were tolerably clear and capable of answer, any forensic disadvantage from the lost rasp could be considered by the trial judge, and costs were a sufficient remedy for the defendants. The timetable motion was dismissed because experts could be asked to address alternative assumptions, including assumptions reflecting Dr Nott's expected evidence, the timetable had been agreed months earlier, and any advantage from giving the experts...

Court Disposition

Leave granted on the plaintiff's notice of motion of 17 February 2017 to file and serve a second further amended statement of claim; the plaintiff's notice of motion of 19 January 2017 was dismissed; costs ordered against the plaintiff as specified.

Orders

  • ['The plaintiff is granted leave to file and serve a second further amended statement of claim, in the form foreshadowed by the end of the hearing before me on 27 March 2017.' 'The plaintiff must pay the costs of each of the defendants occasioned by the filing of that second further amended statement of claim.' 'The...