O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905

Supreme Court New South Wales

Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905 Hearing dates: 11/10/2013, 4/11/2013 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Garling J Decision: On 11 October 2013, on the first application: (1) Grant leave to the plaintiff to file a Second Further Amended Consolidated Statement of Claim by 10 am 17 October 2013. (2) Order the plaintiff to pay the defendants' costs of and occasioned by the amendment On 4 November 2013, on the second application (1) Grant leave to the plaintiff to file a Third Further Amended Consolidated Statement of Claim, on or before 4pm 7 November 2013, which is in the form of the Third Amended Consolidated Statement of Claim - Annexure A to the Notice of Motion dated 4 November 2013, except that paragraph 42 is to be deleted therefrom. (2) Order the plaintiff to pay the defendants' costs of and occasioned by the amendment. (3) Otherwise dismiss the Notice of Motion filed 4 November 2013. (4) Order the plaintiff to pay the defendants' costs of the Notice of Motion. Catchwords: PROCEDURE - two motions to amend statement of claim - application of ss 56 and 57 of Civil Procedure Act 2005 -amendments appropriate where additional evidence can be obtained without any real delay and without any undue expense - amendment of pleadings to reflect evidence is permissible - amendment is not appropriate in the interests of justice, where a new claim is pleaded and evidence is not readily available - No point of general principle Cases Cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 Category: Procedural and other rulings Parties: Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3) Representation: Counsel: Mr Bartley SC / Mr Toomey (P) Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3) Solicitors: Beilby Poulden Costello (P) Kennedys (Australasia) Pty Ltd (D1, D2, D3) File Number(s): 2011/187028