Background
The plaintiff sought, by notice of motion filed on 3 September 2026, leave under s 64 of the Civil Procedure Act 2005 (NSW) to make extensive amendments to his Further Amended Statement of Claim against South Eastern Sydney Local Health District. The proceeding had already involved more than four weeks of lay and expert evidence concerning liability and quantum.
The proposed amendments were first given to the defendant on 25 August 2026, the likely final day of liability evidence, shortly before a reconvened psychiatric expert conclave. They would have expanded the pleading from about 31 to 55 pages, substantially recast the alleged duty and breaches, and introduced new allegations concerning consultant psychiatrist Dr Matthew Boulton and registered nurse Brooke Carlin after each had completed giving evidence.
The Court’s Holding
Richardson J refused the amendment application except for an unopposed amendment to paragraph 2B and further particulars to paragraph 52(y) and (z) of the proposed pleading. The plaintiff had not acted with expedition: he waited about 12 days after the lay evidence ended, and many of the matters relied on were apparent from clinical records, witness statements, and expert material before the hearing.
The proposed changes were broad and would materially alter the liability case the defendant had been required to meet. The Court accepted that the defendant may have conducted its case differently and adduced different evidence had the new allegations been pleaded earlier. Applying ss 56, 58 and 64 of the Civil Procedure Act, the Court held that allowing the late amendments would be inconsistent with the just, quick and cheap resolution of the real issues. The plaintiff was ordered to pay the defendant’s costs of the amendment application.
Key Takeaways
- Late amendments that substantially recast duty and breach allegations may be refused after liability evidence has effectively closed.
- Procedural prejudice includes the lost opportunity to shape evidence and expert instructions around the pleaded case.
- The Court permitted only limited, unopposed amendments and directed the parties to arrange remaining quantum evidence and submissions.
Why It Matters
The decision illustrates that the statutory power to amend pleadings is constrained by the overriding purpose and the dictates of justice. A party cannot ordinarily wait until the end of a complex trial to advance a materially different liability case where the opposing party and witnesses have already presented their evidence on the existing pleadings.