Supreme Court New South Wales Medium Neutral Citation: Becket v Le [2012] NSWSC 1193 Hearing dates: 30/08/2012 Decision date: 31 August 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) I grant the plaintiff leave to file an amended statement of claim on or before 4 pm on 7 September 2012 which reflects these reasons. (2) I order that the amendments which are made by the additional causes of action for "sexual assault" or "other sexual misconduct" as set out in the amended statement of claim are to be taken to have commenced from the date of filing of the amended statement of claim and not the date of the original filing of the statement of claim. (3) I order that the costs of the motion and the costs of and occasioned by the amendment are to be paid by the plaintiff. (4) I order the defendants to file and serve all lay and expert witness evidence upon which they propose to rely on or before 4 pm on 28 September 2012; (5) I order that the time for the joint conferences of experts be extended to 26 October 2012; (6) I order that any reports setting out the agreement or disagreement of the experts arising from their joint conference be filed and served by 7 November 2012; (7) I order that the defendants file and serve any amended defence upon which they propose to rely by 4 pm on Friday 21 September 2012; (8) I order that the plaintiff, if so advised, should file any reply on or before 4 pm on 5 October 2012. (9) I will stand the matter over for directions to 9.30am on 9 November 2012 before Justice Schmidt. (10) I grant the parties liberty to apply to me on short notice. Catchwords: PRACTICE AND PROCEDURE - leave sought to amend statement of claim - whether prejudice to defendants - whether risk to hearing date - leave granted in manner proposed Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Drug Misuse and Trafficking Act 1985 Fair Trading Act 1997 Category: Procedural and other rulings Parties: Sekneh Beckett (P) Andrew Tuan Anh Le (D1) Beauty and Health Care Pty Limited (D5) Representation: Counsel: G Parker (P) G Petty (D1, D5) Solicitors: Beilby Poulden Costello (P) Dibbs Barker (D1, D5) File Number(s): 2010/00105762 Judgment 1The plaintiff, Sekneh Beckett, by notice of motion filed 24 August 2012, seeks leave to file an amended statement of claim. The first and fifth defendants oppose some of the proposed amendments but not all of them. The plaintiff's claim 2These proceedings were commenced by a statement of claim filed on 29 April 2010. The statement of claim named five defendants. The third and fourth defendants have not been served with the proceedings and have taken no part in them. 3The proceedings as originally filed made claims arising out of and relating to breast augmentation surgery, which took place on 29 April 2007. 4Claims for compensatory damages were said to arise from the following causes of action: (1)assault and battery based upon the proposition that the surgery had been undertaken in the absence of any proper and valid consent; (2)negligence conduct, in breach of contract; and (3)a breach of the provisions of the Fair Trading Act 1997. 5As well, the plaintiff claimed exemplary and aggravated damages. The defences 6The first defendant, the surgeon, who performed that augmentation procedure, at the premises of the fifth defendant and with the assistance of the other defendants, put in issue the plaintiff's claims and specifically denied the absence of a proper and valid consent, saying at [25]: "...that he advised her in broad terms of the nature of the procedure to be performed." 7As well, the first defendant pleaded reliance on s 50 of the Civil Liability Act 2002 as constituting a complete defence. 8The defence of the second defendant and, rather curiously, the fifth defendant, a corporation, are both in almost identical form to that of the first defendant. 9Proceedings are fixed for final hearing on 3 December 2012. An amendment is sought 10After a number of threatened and inappropriate attempts to amend her statement of claim, the plaintiff has finally filed a notice of motion seeking leave to amend the original statement of claim. 11As this is effectively an extempore judgment being delivered orally on the day following the argument, I will refrain from doing any more than describing, in a summary way, the amendments, and my reasons for the orders, which I propose to make. 12The amendments which the plaintiff seeks to make, can be categorised in this way: (a)a group of factual allegations dealing with procedures on the day of, but prior to, the surgery; (b)an allegation, contained in particulars, that the pleaded facts, including the pre-operative procedures, constitute either a "sexual assault" or "other sexual misconduct", as those phrases are used in s 3B(1)(a) of the Civil Liability Act 2002; and, (c)an allegation of a private right to damages arising from s 13 of the Drug Misuse and Trafficking Act 1985, and a breach of the duty arising from the statute. 13The first and fifth defendants oppose the amendments other than the group of factual allegations. The second defendant took no part in the argument indicating he would abide by the orders of the Court. The first and fifth defendants oppose the amendments on these bases: (a)the amendments are futile because the plaintiff could not make out the claims; (b)the allegation of "sexual assault" or "other sexual misconduct" were both new as they incorporated for the first time, the expression, based upon allegations dealing with the pre-operative procedures; (c)the causes of action are all statute-barred since more than three years has passed since the operation occurred and necessarily the pre-operative procedures; (d)the pleading of breach of a duty arising from the Drug Misuse and Trafficking Act was an incompetent pleading because it failed to include any allegation of specific damage deriving from the administration of drugs which is alleged to be in contravention of the Drug Misuse and Trafficking Act; (e)prejudice to the first and fifth defendants, which ought to be presumed in light of the passage of time, namely, almost five years; and, (f)the conduct of the proceedings by the plaintiff to date was such as to disqualify her from being the recipient of a grant of leave. 14For the short reasons that follow, I have decided that leave should be granted to amend the statement of claim in the manner proposed but not so as to include the proposed paragraphs (115 to 117), which propound a cause of action under the Drug Misuse and Trafficking Act. A new cause of action 15The amendments which seek to plead a claim for damages arising from pre-operative procedures and in so doing, to categorise the conduct of the defendants as a "sexual assault" or "other sexual misconduct" ought to be considered separately because the limitation period for these causes of action has expired. 16The provisions of s 65 of the Civil Procedure Act 2005 require the plaintiff to satisfy the Court that the new causes of action and the claims for relief are such as to arise from "the same (or substantially the same) facts as those giving rise to an existing cause of action.": see s 65(2)(c) of the Civil Procedure Act. 17In my opinion, the new causes of action and claims for relief do arise out of the same or substantially the same facts as the existing proceedings. Whilst the facts, as is obvious from the additional facts which are pleaded, are not identical, they are nevertheless substantially similar. The substantial similarity arises at least in these ways: (1)The parties to the causes of action and the relief claimed are identical. (2)The causes of action arise from a single interaction, albeit over a number of hours, between the plaintiff and the defendants on 29 April 2007. (3)The additional facts which are sought to be pleaded would have been relevant evidence to be given at a hearing on the causes of action in the original statement of claim and were included in the plaintiff's evidentiary statement. (4)The factual and forensic basis for the acts amounting to the new causes of action remain the same as the earlier causes of action; that is, that there was no proper or valid consent to surgery or any of the treatment, including the pre-operative procedures. The evidence of the first defendant would have covered the conduct of the pre-operative procedures as part of his factual defence to the original allegations, including the allegations of the absence of a lawful consent. It will be said by the first defendant that the conduct of the plaintiff during the pre-operative procedures was evidence of, or else corroborative of, the giving of lawful consent. (5)Having regard to the existence of the cause of action for assault and battery, these additional allegations constitute merely a different legal characterisation of the nature of the cause of action, which seems to be, essentially, for the purpose of seeking to avoid the damages provisions of the Civil Liability Act in the same manner as the allegations of the intentional tort of assault and battery. 18As well, I am not satisfied that the amendments will cause any actual prejudice to the first defendant or to the fifth defendant. None was the subject of evidence and none was asserted from the Bar table. 19I am well satisfied that these amendments can be made and that there will be no risk to the hearing date of the matter. 20None of the other grounds addressed by the defendants, either alone or in combination, are sufficient to cause me to decline the exercise of discretion to permit the amendment. 21The cause of action under the Drug Misuse and Trafficking Act is in an entirely different category. I would not permit this amendment for these reasons: (a)It is an entirely new cause of action which would require quite different evidence both of a lay and expert kind to that likely to be called to deal with the balance of the proceedings. (b)It is not possible to understand from the pleading, the evidence adduced on the motion, or from submissions by counsel for the plaintiff from the Bar table, what is actually alleged to have been the damage caused by the administration of either of the two drugs nominated. (c)The pleading is defective in form. (d)It comes too late in the proceedings for it to be allowed because, in my assessment, it places at real jeopardy the hearing of this matter in December and, accordingly, would unfairly affect the defendants and, more particularly, the Court's processes. It would adversely impact on other litigants. 22I make these orders: (1)I grant the plaintiff leave to file an amended statement of claim on or before 4 pm on 7 September 2012 which reflects these reasons. (2)I order that the amendments which are made by the additional causes of action for "sexual assault" or "other sexual misconduct" as set out in the amended statement of claim are to be taken to have commenced from the date of filing of the amended statement of claim and not the date of the original filing of the statement of claim. (3)I order that the costs of the motion and the costs of and occasioned by the amendment are to be paid by the plaintiff. 23I make the following orders, which I note are not by consent and are made over the objection of the first defendant: (4)I order the defendants to file and serve all lay and expert witness evidence upon which they propose to rely on or before 4 pm on 28 September 2012; (5)I order that the time for the joint conferences of experts be extended to 26 October 2012; (6)I order that any reports setting out the agreement or disagreement of the experts arising from their joint conference be filed and served by 7 November 2012; (7)I order that the defendants file and serve any amended defence upon which they propose to rely by 4 pm on Friday 21 September 2012; (8)I order that the plaintiff, if so advised, should file any reply on or before 4 pm on 5 October 2012. (9)I will stand the matter over for directions to 9.30 am on 9 November 2012 before Justice Schmidt. (10)I grant the parties liberty to apply to me on short notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2012