McMurtire v The Commonwealth & Ors [2002] NSWSC 187

McMurtire v The Commonwealth & Ors [2002] NSWSC 187

Leave to amend the statement of claim is only granted when the amendments are not futile and the claims arise out of substantially the same facts as those originally pleaded, provided statutory time limitations are not breached. The plaintiff's pleadings disclose viable causes of action in breach of contract against the second and third defendants, and in negligence against the second defendant; the claim of unconscionable conduct and the claim in negligence against the third defendant are struck out because they are not supported by the pleaded facts or are statute barred. Security for costs is not ordered given the circumstances and general principles that poverty is not a bar to...

Parties
Plaintiff: Mark McMurtire; First Defendant: The Commonwealth of Australia; Second Defendant: The Aboriginal & Torres Strait Islander Commission; Third Defendant: Dumaresq Shire Council
Jurisdiction
Australia
Judgment Date
19 March 2002
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Statement of Claim and Security for Costs
Outcome
Orders made as set out; extension of time to amend partly conditional on provision of explanation; certain claims struck out; costs reserved.
Legal Topics
Extension of Time, Pleadings, Security for Costs, Breach of Contract, Negligence, Unconscionable Conduct, Statute of Limitations
Civil Procedure Extension of Time Pleadings Security for Costs Breach of Contract Negligence Unconscionable Conduct Statute of Limitations

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Parties

Mark McMurtire

Plaintiff

The Commonwealth of Australia

First Defendant

The Aboriginal & Torres Strait Islander Commission

Second Defendant

Dumaresq Shire Council

Third Defendant

Procedural Posture

Civil / Interlocutory Application for Leave to Amend Statement of Claim and Security for Costs

Legal Issues

  1. 1 Whether to grant the plaintiff an extension of time to file an amended statement of claim
  2. 2 Whether pleadings for breach of contract, negligence, and unconscionable conduct are properly made
  3. 3 Whether claims are statute barred

Ratio Decidendi

Leave to amend the statement of claim is only granted when the amendments are not futile and the claims arise out of substantially the same facts as those originally pleaded, provided statutory time limitations are not breached. The plaintiff's pleadings disclose viable causes of action in breach of contract against the second and third defendants, and in negligence against the second defendant; the claim of unconscionable conduct and the claim in negligence against the third defendant are struck out because they are not supported by the pleaded facts or are statute barred. Security for costs is not ordered given the circumstances and general principles that poverty is not a bar to...

Court Disposition

Orders made as set out; extension of time to amend partly conditional on provision of explanation; certain claims struck out; costs reserved.

Orders

  • The plaintiff is to file and serve an affidavit explaining delay in filing an amended statement of claim on or before 23 April 2002.
  • Matter stood over until 30 April 2002 at 10.00 am before the court.