Covington-Thomas v Commonwealth of Australia [2004] NSWSC 743

New South Wales Supreme Court

CITATION : Covington-Thomas v Commonwealth of Australia [2004] NSWSC 743 HEARING DATE(S) : 16/06/03, 17/06/03, 18/06/03, 03/07/03, 19/08/03, 19/09/03, 24/10/03, 18/12/03 JUDGMENT DATE : 17 August 2004

JUDGMENT OF : Dowd J at 1 DECISION : Leave granted to file amended Statement of Claim; various costs orders made.

CATCHWORDS : Leave to amend Statement of Claim - aggravated damages - nervous shock LEGISLATION CITED : Supreme Court Rules 1970 CASES CITED : Baldry v. Jackson [1976] 2 NSWLR 415 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 PARTIES : Peter Norman Covington-Thomas Commonwealth of Australia FILE NUMBER(S) : SC 21243/95 COUNSEL : Plaintiff: Mr A Melick Defendant: Mr M Dicker SOLICITORS : Plaintiff: JamesTaylor & Co., Solicitors Defendant: Ms C Fieravanti-Wells

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Tuesday, 17 August 2004

21243/95 Peter Norman Covington-Thomas v Commonwealth of Australia

JUDGMENT 1 DOWD J: By Notice of Motion filed on behalf of the Plaintiff on 2 June 2003 (the "Amendment Motion"), application was made to the Court for leave to amend the Statement of Claim filed on 29 November 1995 commencing these proceedings. The relief sought in the Amendment Motion is as follows: "…1. THAT the Plaintiff be given leave to file and an (sic) amended Statement of Claim herein…". 2 A further Notice of Motion filed by the Plaintiff, also on 2 June 2003, sought orders extending the time for the Plaintiff to file an Amended Statement of Claim (the "Extension Motion"), which application was subsequently withdrawn by the Plaintiff. I consequently made orders on 3 July 2003 that the Extension Motion be dismissed, with the Plaintiff to pay the costs of that application. 3 I note that certain orders were made in this matter on 3 February 2000 by Harrison M as to the Plaintiff's then application for an extension of time in which to commence these proceedings. Given thereby that the Plaintiff was granted an extension of time within which to commence these proceedings up to and including 29 November 1995, should the Plaintiff be successful in securing leave to amend his claim, such amendment would have effect from the date of the commencement of the proceedings, notwithstanding that the relevant limitation period would otherwise have expired (see Baldry v. Jackson [1976] 2 NSWLR 415 at 419 and Pt20 r4(5) SCR). 4 The Amendment Motion was heard before the Court initially on 16, 17 and 18 June 2003, with further hearing dates in July, August, September and October 2003. I reserved my judgment on 18 December 2003, following further hearing of the amendment application. Thereafter, submissions of counsel for both parties were provided to the Court, the last received at the end of May 2004.