Evans v Pacific National (NSW) Pty Ltd, formerly Asciano Pty Ltd t/as Freight Corp [2010] NSWDC 12

New South Wales District Court

CITATION: Evans v Pacific National (NSW) Pty Ltd, formerly Asciano Pty Ltd t/as Freight Corp [2010] NSWDC 12

HEARING DATE(S): 11 December 2009

JUDGMENT DATE: 31 March 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. Leave is granted pursuant to s 64 of the Civil Procedure Act 2005 to amend the proceedings by correcting the erroneous naming of Asciano Pty Ltd which has hitherto been described as Afciano Pty Ltd; 2. Leave is granted to the plaintiff to join Pacific National (NSW) Pty Ltd as a defendant in the proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005; DECISION: 3. Leave is granted for Asciano (incorrectly sued as Afciano) Pty Ltd t/as Freight Corp to be removed from the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005; 4. The plaintiff is granted leave to file an amended statement of claim in the form annexed to the notice of motion filed on 3 December 2009, such amended statement of claim to be filed on or before 28 April 2010; 5. Costs of the plaintiff's summons and the costs of the plaintiff's notice of motion are to be costs in the cause; 6. Liberty to apply on 7 days notice, if required.

CATCHWORDS: PRACTICE & PROCEDURE – amendment to correct mistake in naming of a party – s 64 of Civil Procedure Act 2005 – removal of a party ceasing to be a proper party and joinder of party that ought to have been joined – rr 6.24 and 6.29 of Uniform Civil Procedure Rules 2005 - LIMITATION OF ACTIONS – whether plaintiff should be given leave to proceed – train crash – psychological condition of gradually increasing effect – ss 60C, 60G and 60I of Limitation Act 1969