Searle v Commonwealth of Australia [2018] NSWSC 105

Supreme Court New South Wales

Medium Neutral Citation: Searle v Commonwealth of Australia [2018] NSWSC 105 Hearing dates: 9 February 2018 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Common Law Before: Garling J Decision: 1. Order that the Notice of Motion filed by the Commonwealth on 9 February 2018 seeking leave to amend its Defence, be dismissed. 2. Order the defendant to pay plaintiff's costs of that Motion. 3. With respect to Notice of Motion of the Commonwealth dealing with the Notice to Produce served by the plaintiff dated 31 January 2018, decline to require production of the documents in accordance with that Notice. 4. Direct that an Amended Notice to Produce be served on or before 5pm 13 February 2018 which deletes paragraph 4 of the existing Notice of Motion, and limits the documents or things to be produced to the plaintiff and a sample of 10 sailors whose names are to be agreed between the parties. 5. The costs of this Notice of Motion are to be costs in the cause. 6. Stand the Notice of Motion over for production before trial judge at 10am on 5 March 2018. Catchwords: CIVIL PROCEDURE – leave to amend defence to add a pleading of failure to mitigate – prejudice to plaintiffs – interests of justice – Civil Procedure Act 2005 s 58 – leave refused CIVIL PROCEDURE – case management – notice to produce documents – where accuracy of records is uncertain – limitation placed on notice to produce Legislation Cited: Civil Procedure Act 2005 Cases Cited: Aon Risk Services Pty Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Clayton William Searle (P) Commonwealth of Australia (D) Representation: Counsel: N Kidd SC (P) G Sirtes SC / J A Steele (D)