Rivera v State of New South Wales and Anor [2012] NSWSC 1360

Rivera v State of New South Wales and Anor [2012] NSWSC 1360

The Amended Statement of Claim was lodged after the time allowed by Court orders, contained significant pleading deficiencies and added proposed defendants who had never been served, so the Court exercised its discretion under Rule 4.10 UCPR to refuse to accept it for filing. The proceedings had not been prosecuted since 2007, the underlying events were 10 years old, the Plaintiff was serving a lengthy sentence in the United States of America, had no current representation, had served no medical evidence, and had shown no realistic capacity or intention to progress the case. Having regard to the Civil Procedure Act 2005, pleading deficiencies, limitation concerns and Part 2A Civil...

Jurisdiction
Australia
Judgment Date
05 November 2012
Procedural Posture
Interlocutory Applications / Notice of Motion by the Second and Third Defendants Seeking Refusal to Accept an Amended Statement of Claim for Filing and Dismissal of the Proceedings for Want of Prosecution
Outcome
Amended Statement of Claim refused for filing; proceedings dismissed; Plaintiff ordered to pay the costs of the Second and Third Defendants of the application and the proceedings generally.
Legal Topics
['amended Pleadings Filed Out of Time' 'refusal to Accept Document for Filing' 'dismissal for Want of Prosecution' 'delay in Prosecution of Proceedings' 'permanent Impairment Threshold' 'costs']
['practice and Procedure' 'civil Procedure' 'civil Liability'] ['amended Pleadings Filed Out of Time' 'refusal to Accept Document for Filing' 'dismissal for Want of Prosecution' 'delay in Prosecution of Proceedings' 'permanent Impairment Threshold' 'costs']

Case Brief

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Procedural Posture

Interlocutory Applications / Notice of Motion by the Second and Third Defendants Seeking Refusal to Accept an Amended Statement of Claim for Filing and Dismissal of the Proceedings for Want of Prosecution

Legal Issues

  1. 1 ['Whether the Court should refuse under Rule 4.10 Uniform Civil Procedure Rules 2005 to accept for filing the Amended Statement of Claim lodged on 6 November 2007 after the time allowed by earlier orders had expired.' 'Whether the proceedings should be dismissed under Rule 12.7 Uniform Civil Procedure Rules 2005 for want of prosecution.' "Whether the history of delay, the Plaintiff's imprisonment in the United States of America, pleading deficiencies, limitation issues and Part 2A Civil Liability Act 2002 supported final dismissal of the proceedings."]

Ratio Decidendi

The Amended Statement of Claim was lodged after the time allowed by Court orders, contained significant pleading deficiencies and added proposed defendants who had never been served, so the Court exercised its discretion under Rule 4.10 UCPR to refuse to accept it for filing. The proceedings had not been prosecuted since 2007, the underlying events were 10 years old, the Plaintiff was serving a lengthy sentence in the United States of America, had no current representation, had served no medical evidence, and had shown no realistic capacity or intention to progress the case. Having regard to the Civil Procedure Act 2005, pleading deficiencies, limitation concerns and Part 2A Civil...

Court Disposition

Amended Statement of Claim refused for filing; proceedings dismissed; Plaintiff ordered to pay the costs of the Second and Third Defendants of the application and the proceedings generally.

Orders

  • ['Pursuant to Rule 4.10 Uniform Civil Procedure Rules 2005, the Court refuses to accept for filing the Amended Statement of Claim lodged on 6 November 2007.' 'Pursuant to Rule 12.7 Uniform Civil Procedure Rules 2005, the proceedings are dismissed.' 'The Plaintiff is to pay the costs of the Second and Third...