Commonwealth of Australia v Covington-Thomas [2005] NSWCA 299

New South Wales Court of Appeal

CITATION: Commonwealth of Australia v Covington-Thomas [2005] NSWCA 299

HEARING DATE(S): 1 September 2005

JUDGMENT DATE: 1 September 2005

JUDGMENT OF: Giles JA at 1; Tobias JA at 23; Campbell AJA at 24

DECISION: Grant leave to appeal. Direct notice of appeal be filed within seven days. Appeal allowed. Amended statement of claim filed pursuant to orders of Dowd J and points of claim similarly filed struck out. Opponent granted leave to file further amended statement of claim a copy of which is now to be marked for identification 1 and placed with the papers. Opponent should pay the claimant's costs of the application for leave to appeal up to and including 26 August 2005. No order for the costs thereafter incurred, to the intent that each party shall bear his or its costs. Opponent have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Amendment - judge's discretion miscarried, but further amended pleading provided and leave granted to file it - costs of application for leave to appeal - no question or principle. ND

CASES CITED: State Government Insurance Commission v Oakley (1990) Aust Tort Rep 81-0113.

Commonwealth of Australia - Claimant/Appellant PARTIES: Peter Norman Covington-Thomas - Opponent/Respondent

FILE NUMBER(S): CA 40769/04

R Williams QC & M Dicker - Claimant/Appellant COUNSEL: G Melick SC & W Walsh - Opponent/Respondent

Australian Commonwealth Solicitor - Claimant/Appellant SOLICITORS: James Taylor, Myrtleford, Victoria - Opponent/Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 21243/95

LOWER COURT JUDICIAL OFFICER: Dowd J