Clarke (previously Naicker) v Herrick [2017] NSWDC 302

District Court New South Wales

Medium Neutral Citation: Clarke (previously Naicker) v Herrick [2017] NSWDC 302 Hearing dates: 5 October 2017 Date of orders: 02 November 2017 Decision date: 02 November 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's application to change her surname on both JusticeLink and the statement of claim to "Clarke", to change particulars (k) and (l) in relation to the assault claim and to add paragraph 11 to the statement of claim is granted. (2) Plaintiff's application to amend the Amended Statement of Claim to replace the current three named defendants with the name "Vanessa Madunic" is dismissed. (3) Plaintiff pay defendants' costs. (4) Liberty to apply in relation to costs. (5) The parties are to bring in Short Minutes of Order reflecting a timetable for the continued progress of these proceedings, including: (a) The change to the plaintiff's surname; (b) The amended pleadings for the assault agreed to by the defendant; (c) The plaintiff's Notice of Motion filed on 3 October 2017 and any challenge to the proposed continuation of the claim as against the three currently named defendants (including any challenges in relation to the matter complained of); and (d) If the defamation claim is abandoned, orders for the transfer of these proceedings to the General List for directions concerning the assault claim, including a return date for whichever list the proceedings remain in. Catchwords: TORT – defamation – application pursuant to ss 64 – 65 Civil Procedure Act 2005 (NSW) to bring proceedings out of time against a newly named defendant in place of the three named defendants – whether amendment on the basis of misnomer should be permitted – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62, 64 and 65 Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 42.1 Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Barach v University of New South Wales [2011] NSWSC 1327 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Campbell v Boston (Supreme Court of New South Wales, Levine J, 17 February 1995) Drinkwater v Barwon Health Services & Butler (Supreme Court of New South Wales, Levine J, 27 June 1996) Emmerton v University of Sydney [1970] 2 NSWR 633 Greenwood v Papademetri [2007] NSWCA 221 In the matter of RCG CBD Pty Ltd [2016] NSWSC 1937 Miller v RL Polk & Co (Australia) Pty Ltd (New South Wales Supreme Court, Hunt J, 4 July 1985) New South Wales v Radford (2010) 79 NSWLR 327 Riddick v Thames Board Mills Ltd [1977] QB 881 Sapphire (SA) Pty Ltd t/as River City Grain v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 Sullivan v Van der Broek [1999] NSWSC 1177 Category: Procedural and other rulings Parties: Plaintiff: Sharmain Clarke (previously Naicker) First Defendant: Julie Herrick Second Defendant: Susan Dale Third Defendant: Virginia King Representation: Counsel: Plaintiff: Mr R Potter Defendants: Mr D Sibtain