Ibrahimi & Ors v Commonwealth of Australia (No 6) [2016] NSWSC 1418

Supreme Court New South Wales

Medium Neutral Citation: Ibrahimi & Ors v Commonwealth of Australia (No 6) [2016] NSWSC 1418 Hearing dates: 5 October 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [29] Catchwords: PRACTICE AND PROCEDURE – Amendment of pleadings – Delay – Prejudice to defendant – Where the shortcomings in pleadings giving rise to the application for amendment had been specifically drawn to the attention of plaintiffs' solicitor – Application to amend the pleadings refused Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bishopsgate Insurance Australia Limited (in liq.) v Deloitte Haskins & Sells [1999] 3 VR 863 Category: Procedural and other rulings Parties: Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant Representation: Counsel: M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O'Meara and R Jedrzejczyk - Defendant

Solicitors: The People's Solicitors - Plaintiffs Australian Government Solicitor - Defendant File Number(s): 2013/377410 Publication restriction: Nil

Judgment – EX TEMPORE (revised) 1. Earlier today I gave judgment in relation to the admissibility of evidence sought to be led in the plaintiffs' case from Mr Paul Kimber. I concluded that that the evidence was not relevant to any pleaded issue and I rejected it. Immediately following that judgment senior counsel for the plaintiffs made an application to amend the pleadings, so as to plead those matters which would render the evidence of Mr Kimber relevant. A proposed amended pleading is exhibit C on the application. The application is opposed by the defendant. 2. Previous statements of claim filed in the proceedings are exhibits A and B. Exhibit D is a letter of 27 July 2016 from the solicitor for the defendant to the solicitors for the plaintiffs. The content of that letter is a matter to which I will return in a moment. 3. Senior counsel for the plaintiffs submitted that the failure to plead the matters to which the proposed evidence of Mr Kimber might be relevant had come about as the result of a 'misconception' on the part of those acting for the plaintiffs. He submitted that the matters now sought to be pleaded formed an important part of the plaintiffs' case and that in those circumstances the interests of justice weighed in favour of the application being granted. 4. Senior counsel for the defendant, in opposing the application, relied on a series of factors. 5. Firstly he pointed to exhibits A and B which, as I have said, are the pleadings which were previously filed in the proceedings and which contained, to a greater or lesser extent, pleadings of the nature which are now sought to be relied upon. He submitted that it was evident from a comparison of the pleadings that a forensic decision had been made to plead the further amended statement of claim in its present form. 6. Secondly, he submitted that the fact that Mr Kimber's evidence was not relevant to any pleaded fact in issue had been expressly drawn to the attention of the solicitors for the plaintiffs in exhibit D. 7. Thirdly, he submitted that no cogent explanation had been advanced for the circumstances which had brought about the present application. 8. Fourthly, he submitted that prejudice would be visited upon the defendant in the event that the application was granted, and that such prejudice would manifest itself in a number of ways. He submitted that matters arising from any evidence to be given by Mr Kimber had not been investigated by the defendant, and that there would be a necessity to do so in the event that the application for an amendment were granted. He also pointed to the serious nature of the allegations which had been made by the plaintiffs, and submitted their gravity was such would give rise to further prejudice in the event that the proceedings were delayed. He also submitted that in the circumstances of this case there was no real prospect, even if a costs order were made against the plaintiffs, that such a costs order would ever be able to be met. 9. Finally, senior counsel submitted that in light of the evidence filed by the plaintiffs there was no utility in granting the amendment which was sought. He submitted that granting the amendment would necessarily require further evidence to be called, over and above that on which the plaintiffs had indicated they wished to rely. This, he submitted, would inevitably cause even further delay to the completion of the proceedings. 10. The power of the Court to amend a pleading is to be found in s. 64 of the Civil Procedure Act 2005 (NSW):