Wilson & ors v The State of New South Wales [2001] NSWSC 1165

New South Wales Supreme Court

CITATION : Wilson & ors v The State of New South Wales [2001] NSWSC 1165 FILE NUMBER(S) : SC 20218/99 HEARING DATE(S) : 23/11/01; 6/12/01 JUDGMENT DATE : 14 December 2001

PARTIES : Anthony James Wilson & Ors State of New South Wales JUDGMENT OF : O'Keefe J

COUNSEL : Mr D R Campbell/Mr A S Kostopolous - Plaintiffs Mr C F Hodgson - Defendant SOLICITORS : Greg Walsh & Co, Chester Hill - Plaintiffs IV Knight, Crown Solicitors, Sydney - Defendant CATCHWORDS : Amendment - New cause of action based on essentially same facts - Prejudice - Effect of dismissal of first action - Stay of second action on essentially similar facts until costs for first action paid - Estoppel - traditional and Anshun - Relative financial positions of parties LEGISLATION CITED : Supreme Court Act 1970, ss 23, 63 Supreme Court Rules, Part 20, rule 1 Port of Melbourne Authority v Anshun (1980-1981) 147 CLR 589 Macquarie Bank v National Mutual Life Association of Australia (1996) 40 NSWLR 543 CASES CITED : Bowen v Hickey (1961) 78 WN (NSW) 820 Rice v Henley (1915) 32 WN (NSW) 54 Wilson & ors v State of New South Wales [2001] NSWSC 869, unreported, 28 September 2001 DECISION : 1. The amended Statement of Claim of 19 April 2001 is struck out; 2. Leave is given to the plaintiffs to amend their Statement of Claim so as to claim on the causes of action of malicious prosecution and abuse of process generally in the form set out in the document filed in Court, initialled by me and dated 6 December 2001, a copy of which has been placed with the papers; 3. The costs of the application to amend so as to claim on the bases referred to in Order 2 (above) are to be the defendant's costs in the action; 4. The plaintiffs are to pay the costs of the application to strike out the Statement of Claim and the amendments thereto, up to and including the amendment effected on 19 April 2001; 5. Order under Part 52A, Rule 9 for the payment of the costs referred to in Order 4 (above) before the conclusion of the proceedings refused.