Barnes v Surf Life Saving Illawarra Incorporated & Ors [2021] NSWDC 77

Barnes v Surf Life Saving Illawarra Incorporated & Ors [2021] NSWDC 77

The costs order made on 17 August 2020 was varied, as the adjournment of the hearing was attributable to a lack of readiness caused by both sides and the non-disclosure of the plaintiff’s supplementary expert report contributed to a misapprehension forming the basis of the costs consent order. The defendants were granted leave to further amend their defences to plead a risk warning defence under s 5M of the Civil Liability Act, but required to provide particulars identifying the precise recreational activities and risks, both for the s 5L and s 5M defences. The plaintiff was entitled to particulars so as to understand and respond to the defendants’ statutory defences.

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Civil / Interlocutory Decisions on Costs and Pleadings
Outcome
Applications granted in part; costs order varied; defendants permitted to further amend defences with required particulars.
Legal Topics
['costs Orders' 'pleading Requirements' 'amendments to Defences' 'statutory Defences' 'personal Injury' 'recreational Activities' 'risk Warnings']
['civil Procedure'] ['costs Orders' 'pleading Requirements' 'amendments to Defences' 'statutory Defences' 'personal Injury' 'recreational Activities' 'risk Warnings']

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Procedural Posture

Civil / Interlocutory Decisions on Costs and Pleadings

Legal Issues

  1. 1 ['Whether the costs order made by consent should be varied due to non-disclosure of a supplementary expert report' 'Whether the defendants are entitled to further amend their defences to add a risk warning defence under s 5M Civil Liability Act 2002 (NSW)' 'Whether the plaintiff is entitled to particulars of the statutory defences pleaded under ss 5L and 5M Civil Liability Act 2002 (NSW)']

Ratio Decidendi

The costs order made on 17 August 2020 was varied, as the adjournment of the hearing was attributable to a lack of readiness caused by both sides and the non-disclosure of the plaintiff’s supplementary expert report contributed to a misapprehension forming the basis of the costs consent order. The defendants were granted leave to further amend their defences to plead a risk warning defence under s 5M of the Civil Liability Act, but required to provide particulars identifying the precise recreational activities and risks, both for the s 5L and s 5M defences. The plaintiff was entitled to particulars so as to understand and respond to the defendants’ statutory defences.

Court Disposition

Applications granted in part; costs order varied; defendants permitted to further amend defences with required particulars.

Orders

  • ['Order 8 of 17 August 2020 varied: defendants to pay plaintiff’s costs of the notice of motion filed 28 July 2020; parties to bear their own costs of the vacation of the August 2020 hearing.' 'Defendants given leave to file further amended defences by 26 March 2021 with particulars for s 5L and s 5M.' 'Plaintiff to...