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Cherkupalli v Commonwealth of Australia [2012] NSWSC 997. Harrison J.

[D's submissions]

26 The Court is required to take into account its lists and the general desirability of efficiency in the conduct of litigation: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. There is no suggestion that the plaintiff has only recently become aware of material that has provoked the proposed amendment nor is any adequate explanation given for it: AON Risk Services. The plaintiff has had adequate opportunity to plead and prepare his case and it would be inappropriate to permit him to amend further: AON Risk Services.

Diment v South Eastern AHS [2009] NSWSC 1097. Hall J.

The plaintiff sought leave to further amend to plead additional incidents of injury, a latex allergy, attributed to her employment with the defendant as well as the health service’s professional negligence therapeutically.

The amendments related additional latex exposures, out of time.

Leave was sought under 1987 WCA s 151D, and Civil Procedure Act 2005 ss 64 & 65, as well as UCPR Pt 14 rule 17.

The defendant did not aver prejudice, but contended the amendment application was impugned for want of explanation for its lateness.

Hall J noted Aon Risk Services v ANU (2009) 83 ALR 951, Salido v Nom Deft (1993) 32 NSWLR 524, Itek Graphix PL v Elliott [2002] NSWCA 104, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

His Honour, infra [19]: “… there would be few better placed to know exactly what has been the history of the plaintiff and her unfortunate condition than the defendant, or particularly its staff members at Sutherland Hospital, who have had direct dealings with her about her condition.”

.One might consider the amendments as additional particulars of the subsisting cause of action, his Honour noted at [24], therefore such would advantage a defendant, posing no difficulty in allowing leave.

Because these were additional elements of a series of exposures and increasing reactions, as distinct from discrete incidents of isolated injuries, 1998 WIM Act procedural requirements were inapplicable: [51].

The fundamental question was whether it was just and fair to grant leave to amend: Salido and Itek. In the absence of contrary proofs, his Honour allowed the amendment.

To costs [61], Hall J: “It is submitted on behalf of the defendant that costs should be costs in the cause and the application is one which sought an indulgence from the court. In many cases it would be appropriate that an interlocutory application have the costs order of the kind sought by the defendant.

“However, I consider in the present case that the amendment sought, particularly in circumstances in which no prejudice or disadvantage whatsoever can be identified, having regard to the principles to be applied by the authorities to which I have referred, the defendant ought to have consented to the amendments but did not do so. There has been a great volume of evidence enumerated to support the application and there has been a full day of hearing.”

Defendant to pay plaintiff’s application costs.

P: A J McQuillen, inst Gregory Harrison Healey. D: D C Morgan, inst Moray & Agnew.







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