David Millar v Lynette McDade [2017] NSWSC 984

Supreme Court New South Wales

Medium Neutral Citation: David Millar v Lynette McDade [2017] NSWSC 984 Hearing dates: 21 July 2017 Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant leave to the plaintiff to amend the statement of claim in accordance with these reasons and substantially in the form propounded in the further amended statement of claim attached to the submissions of the plaintiff of 26 June 2017.

(2) Dispense with the requirements of r 19.5 Uniform Civil Procedure Rules 2005 and instead grant leave to the plaintiff to file a further amended statement of claim re-cast as to form but not as to substance.

(3) The costs of and incidental to today are costs in the cause.

(4) The plaintiff is to serve the re-cast further amended statement of claim within 14 days.

(5) The defendant is to raise any objection concerning the content of the re-cast statement of claim within a further seven days, 11 August 2017.

(6) Grant both parties liberty to apply on short notice if a dispute arises about the form of the re-cast further amended statement of claim.

(7) Absent a dispute, the defendant is to file a defence to the further amended statement of claim within a further period of 14 days, 25 August 2017.

(8) The matter is set down for directions before the Common Law Registrar on 4 September 2017 at 9am. Catchwords: PROCEDURE – application to amend statement of claim – malicious prosecution – where amendments are particulars of an averment relating to a lack of reasonable and probable cause – distinction between particulars and evidence considered – UCPR r 15.4 considered – held that amendment to be allowed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: PPK Willoughby Pty Limited v Roads and Maritime Services [2014] NSWSC 407 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Category: Procedural and other rulings Parties: David Millar (Plaintiff) Lynette McDade (First Defendant) Commonwealth of Australia (Second Defendant) Representation: Counsel: J J Hyde with D F Villa (Plaintiff) A M Mitchelmore with J K Edwards (First and Second Defendants)