Hore v Parklands Albury Wodonga Limited [2010] NSWSC 207

New South Wales Supreme Court

CITATION : Hore v Parklands Albury Wodonga Limited [2010] NSWSC 207

HEARING DATE(S) : 22 March 2010

JUDGMENT DATE : 23 March 2010

JUDGMENT OF : Harrison J

1. Grant leave to the plaintiff to amend his pleadings so as to rely upon the proposed further amended statement of claim. DECISION : 2. Grant leave to the defendant to amend its defence in the form proposed. 3. Costs of these applications should be costs in the cause.

CATCHWORDS : PRACTICE AND PROCEDURE – application for leave to amend pleading – whether amendments so obviously futile that leave to amend should be refused – embarrassing pleadings – whether no reasonable cause of action disclosed – leave to amend granted

LEGISLATION CITED : Civil Liability Act 2002

CATEGORY : Procedural and other rulings

CASES CITED : McGuirk v The University of New South Wales [2009] NSWSC 1424

PARTIES : Hayden Mark Hore (Plaintiff) Parklands Albury Wodonga Limited (Defendant)

FILE NUMBER(S) : SC 2008/289593

COUNSEL : I D M Roberts SC with A J Black (Plaintiff) J E Maconachie QC with C L Thompson (Defendant)

SOLICITORS : Walsh & Blair Lawyers (Plaintiff) Carroll & O'Dea (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

23 March 2010

2008/289593 Hayden Mark Hore v Parklands Albury Wodonga Limited

JUDGMENT 1 HIS HONOUR: These are two notices of motion filed respectively by the plaintiff and the defendant. By his notice of motion the plaintiff seeks leave to amend his amended statement of claim in the form of a further amended statement of claim, which is annexed to an affidavit of his solicitor Timothy James Abbott sworn 10 March 2010. The defendant seeks leave to amend its defence in order to rely upon s 42 of the Civil Liability Act 2002. In the events that have occurred, the defendant's application has become uncontroversial but the plaintiff's application has not. Background 2 On 11 November 2006 the plaintiff was catastrophically injured when he swung from a rope attached to a tree located adjacent to the southern shore of the Murray River in which he landed, striking his head on the riverbed. The tree is to be found in or adjacent to a reserve, known as the Water Works River Reserve, on the Victorian side of the Murray River. The reserve is allegedly maintained by the defendant for public use as a swimming, picnicking and recreational area. 3 The contentious paragraphs of the proposed further amended statement of claim are in the following terms: 5A On and prior to 11 November 2006 the defendant was responsible for the management and maintenance of so much of the southern bank of the river adjacent to the reserve which was within New South Wales pursuant to an agreement with the Department of Natural Resources and Environment (NSW).