Plaintiff A v Bird, Plaintiff B v Bird, Plaintiff v Bird, Plaintiff D v Bird [2020] NSWSC 1145

Plaintiff A v Bird, Plaintiff B v Bird, Plaintiff v Bird, Plaintiff D v Bird [2020] NSWSC 1145

The plaintiffs were permitted only limited late evidence and limited pleading amendments because the applications were made very shortly before a long-fixed trial, the explanation for lateness was inadequate, substantial amendments would unfairly prejudice the defendants and potentially require further investigation or adjournment, and vacating the hearing would conflict with the overriding purpose and prejudice other litigants. Leave was allowed only where the material was confined, not seriously opposed, or merely clarified existing claims without material prejudice.

Jurisdiction
Australia
Judgment Date
25 August 2020
Procedural Posture
Common Law Civil Proceedings; Procedural and Other Rulings / Directions Hearing on a Notice of Motion Filed 14 August 2020 Seeking Leave to Serve Further Evidence and Leave to File an Amended Statement of Claim Shortly Before the Fixed Final Hearing
Outcome
The plaintiffs obtained leave only in part to serve limited further evidence and to make limited amendments, with other proposed evidence and amendments refused; the plaintiffs were directed to file and serve an Amended Statement of Claim reflecting the rulings.
Legal Topics
['pleadings' 'amendment of Pleadings' 'late Application for Amendment' 'leave to Serve Evidence Out of Time' 'hearsay' 'section 63 Evidence Act Exception' 'case Management' 'overriding Purpose']
['civil Procedure' 'evidence'] ['pleadings' 'amendment of Pleadings' 'late Application for Amendment' 'leave to Serve Evidence Out of Time' 'hearsay' 'section 63 Evidence Act Exception' 'case Management' 'overriding Purpose']

Case Brief

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Procedural Posture

Common Law Civil Proceedings; Procedural and Other Rulings / Directions Hearing on a Notice of Motion Filed 14 August 2020 Seeking Leave to Serve Further Evidence and Leave to File an Amended Statement of Claim Shortly Before the Fixed Final Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs should have leave, about two weeks before the fixed trial, to serve evidentiary statements or outlines from Plaintiffs B and D, police officers, a child protection worker, and two mothers of other children.' 'Whether limited evidence that Plaintiffs B and D had no present recollection should be permitted for the purpose of relying on s 63 of the Evidence Act 1995.' 'Whether outlines from police officers and a child protection worker were necessary where the defendants did not dispute the conduct, authenticity or accuracy of the recorded interviews, while reserving admissibility objections.' 'Whether supplementary statements by two mothers should be permitted to support the claimed s 63 hearsay exception.' 'Whether the plaintiffs should have leave to file an Amended Statement of Claim containing significant late amendments shortly before trial.']

Ratio Decidendi

The plaintiffs were permitted only limited late evidence and limited pleading amendments because the applications were made very shortly before a long-fixed trial, the explanation for lateness was inadequate, substantial amendments would unfairly prejudice the defendants and potentially require further investigation or adjournment, and vacating the hearing would conflict with the overriding purpose and prejudice other litigants. Leave was allowed only where the material was confined, not seriously opposed, or merely clarified existing claims without material prejudice.

Court Disposition

The plaintiffs obtained leave only in part to serve limited further evidence and to make limited amendments, with other proposed evidence and amendments refused; the plaintiffs were directed to file and serve an Amended Statement of Claim reflecting the rulings.

Orders

  • ['Direct that the plaintiffs file on or before midday on Thursday 27 August 2020, and serve at the same time, an Amended Statement of Claim which takes account of the rulings made in [31].' 'Grant the parties liberty to apply.' 'Grant leave to serve the statement of Plaintiff B insofar as it contains paragraphs 1 to...