Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257

Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257

Although the amended statement of claim was ambiguous and needed to state more clearly that the alleged negligent acts and omissions extended to acts and omissions of the RFS, the case the plaintiff sought to run was based on material facts already pleaded and on evidence already marshalled. Refusing the plaintiff permission to advance that case would be inappropriate; however, broadly stated particulars such as alleged failures to take adequate steps to extinguish the fire required further content before being permitted. Leave to file and serve a further amended statement of claim was granted in accordance with those reasons, with leave to the defendants to file any defence and with...

Jurisdiction
Australia
Judgment Date
17 March 2020
Procedural Posture
Procedural and Other Ruling in Negligence Proceedings for Property Damage by Fire / Application Concerning Whether the Plaintiff Could Advance or Amend a Case Relying on Acts or Omissions of the NSW Rural Fire Service Shortly Before a Listed Trial
Outcome
Plaintiff granted leave to file and serve a further amended statement of claim; defendants granted leave to file and serve any defence; costs of 16 March and 17 March 2020 ordered to be the parties' costs in the cause.
Legal Topics
['leave to Amend Pleadings' 'argument Not Previously Pleaded' 'prejudice' 'case Management' 'proper Articulation of Claim' 'non Delegable Duty' 'vicarious Liability' 'concurrent Wrongdoer' 'controlled Burn']
['civil Procedure' 'negligence' 'torts'] ['leave to Amend Pleadings' 'argument Not Previously Pleaded' 'prejudice' 'case Management' 'proper Articulation of Claim' 'non Delegable Duty' 'vicarious Liability' 'concurrent Wrongdoer' 'controlled Burn']

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Procedural Posture

Procedural and Other Ruling in Negligence Proceedings for Property Damage by Fire / Application Concerning Whether the Plaintiff Could Advance or Amend a Case Relying on Acts or Omissions of the NSW Rural Fire Service Shortly Before a Listed Trial

Legal Issues

  1. 1 ["Whether the plaintiff's written opening advanced a new case not previously pleaded by alleging that specific acts or omissions of the RFS in managing the controlled burn were to be sheeted home to the defendants." 'Whether the plaintiff should be permitted to file and serve a further amended statement of claim at a late stage before trial.' 'Whether the defendants would suffer prejudice if the plaintiff were allowed to run the case based on acts or omissions of the RFS.' 'Whether proposed particulars of negligence were sufficiently definite to identify the real issues for trial.']

Ratio Decidendi

Although the amended statement of claim was ambiguous and needed to state more clearly that the alleged negligent acts and omissions extended to acts and omissions of the RFS, the case the plaintiff sought to run was based on material facts already pleaded and on evidence already marshalled. Refusing the plaintiff permission to advance that case would be inappropriate; however, broadly stated particulars such as alleged failures to take adequate steps to extinguish the fire required further content before being permitted. Leave to file and serve a further amended statement of claim was granted in accordance with those reasons, with leave to the defendants to file any defence and with...

Court Disposition

Plaintiff granted leave to file and serve a further amended statement of claim; defendants granted leave to file and serve any defence; costs of 16 March and 17 March 2020 ordered to be the parties' costs in the cause.

Orders

  • ['I give the plaintiff leave to file and serve a further amended statement of claim, in accordance with my reasons, by close of business today.' 'I give the defendant leave to file and serve any defence to that further amended statement of claim, in accordance with my reasons, by midday tomorrow 18 March 2020.' "The...