Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376 Hearing dates: 10 October 2012 Decision date: 10 October 2012 Before: Basten JA at [1] Campbell JA at [19] Barrett JA at [153] Decision: (1) Grant leave to appeal. (2) Direct Applicant to file, within seven (7) days, a Notice of Appeal in terms of the draft Notice of Appeal appearing at page 27 of the White Book. (3) Dismiss the appeal. (4) Order the Applicant to pay the Respondents' costs of this appeal. (5) Reserve Reasons. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE & PROCEDURE - amendment of defence - out of time and on eve of proposed trial - court's discretion to allow amendment taking into account circumstances of the request - consideration of Civil Procedure Act - no adequate explanation for delay - low chance of success as defence - prejudice to plaintiffs - amendment refused

TORTS - proportionate liability - whether contributory negligence provides a basis for limiting a defendant's damages under s 35 Civil Liability Act 2002 - legislative policy precludes inclusion of contributory negligence with the meaning of "concurrent wrongdoer"