Benecke v Wall [2016] NSWDC 118

District Court New South Wales

Medium Neutral Citation: Benecke v Wall [2016] NSWDC 118 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Leave to the plaintiff to amend the statement of claim by adding the proposed pars 16, 17, 18 and 19 of the proposed amended statement of claim annexed to the affidavit of Mr Krstic of 29 March 2016 refused

Leave to the plaintiff to amend the relief sought to include the claims for aggravated and exemplary damages granted

Plaintiff to supply to the defendant within 42 days any matter referred to in the defendant's solicitor's letters of 16 February 2016 and 29 February 2016 which has not been already supplied by the plaintiff's solicitors

The costs of this notice of motion be the defendant's costs in the cause Catchwords: CIVIL – Practice and procedure – Application to amend statement of claim to add a further cause of action: trespass to the person – False imprisonment occurred during a fight between plaintiff and defendant – Plaintiff's primary cause of action in trespass to the person (assault and battery) – Defendant cross-claimed, alleging he was assaulted and battered – Fight occurred 19 November 2011 – Proceedings commenced 18 November 2014 – Matter already been listed for hearing on 2 December 2015 – If false imprisonment occurred, would have been for less than 1 minute on 2 occasions – Cause of action arguable, but damages would be miniscule – Plaintiff dilatory is complying with orders and the Rules – Relief claimed discretionary – Further cause of action would lead to further hearing time for very little in damages – Relief refused – Other relief (to claim aggravated and exemplary damages) allowed. Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: McDonald v Coles Myer Limited (trading as K Mart Chatswood) (1995) Aust Torts Reports 81 361 Texts Cited: Bullen & Leake: Precedent of Pleadings 13th ed (1990) Category: Procedural and other rulings Parties: Mitchell Benecke (Plaintiff) Leonard Wall (Defendant) Representation: Ms Campbell (Plaintiff) Mr Russoniello (Defendant) File Number(s): 2014/339339 Publication restriction: No