Covington-Thomas v Commonwealth of Australia

Covington-Thomas v Commonwealth of Australia - [2004] NSWSC 743 - NSWSC 2004 case summary — Zoe

[10]

12 The Plaintiff was thereafter directed to file a proposed further amended pleading (the "Proposed Further Amended Statement of Claim"), which (following a series of changed versions) was served on the Defendant's solicitors under cover of a letter dated 14 October 2003 from the Plaintiff's solicitors. 13 At the subsequent hearing before me on 18 December 2003, it was further submitted on behalf of the Plaintiff that the amendments sought to be made arise from information made known to the Plaintiff as a result of documents being uncovered from files held by the Defendant, some of which were from related proceedings which have been ongoing for many years. 14 In written submissions relied upon by counsel for the Plaintiff provided to the Court in August 2003, it was said that the proposed amendments ought be allowed as they are prayers for "…damage suffered …at least substantially identical with and overlapping with that already claimed in the proceedings…", in accordance with the Statement of Claim filed in November 1995. 15 The Proposed Further Amended Statement of Claim nonetheless remains in a form which in many respects is not satisfactory, either in its requirement under Pt15 SCR (and in particular Pt15 r7 that facts, not evidence be pleaded in the statement of claim), its failure to maintain a plea for costs against the Defendant and in the difficulties likely to arise for the Court at the eventual hearing of the matter by the lack of clarity attaching to the Proposed Further Amended Statement of Claim. Not only as a matter of common sense, or as a matter of courtesy to the Court in having to determine a complex and difficult claim at the hearing of this matter, but as required under Pt20 r1(2) SCR, all necessary amendments should be made to the Plaintiff's claim as pleaded "…for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings…". 16 It is open to the Court, particularly under Pt 20 r1 SCR to require pleadings to be amended and somewhat to intervene and effectively draw the pleadings in the matter; it may be the case that the occasional heat which has been generated in the involvement of the legal practitioners preparing this pleading reflects the effort and pressure they have laboured under for this long and complex matter, a position likely to benefit from some independent review. However, to have the matter listed for hearing before the Court bearing pleadings which do not succinctly, nor comprehensively and accurately reflect the nature and extent of the Plaintiff's claim is to reflect poorly upon the difficult circumstances in which the Plaintiff found himself at sea on that terrible night in 1964 and the difficult circumstances he has had to face in bringing his claim. 17 Although I have noted in Court in December 2003 that the Proposed Further Amended Statement of Claim fails, in paragraph 6, to plead that the Plaintiff has suffered pain, suffering, shock and loss or enjoyment of life and might otherwise continue to suggest amendments to the pleading, to do so is an extremely costly method of ensuring the Plaintiff's claim (and thereafter the Defendant's defence to such claim) is set out in a manner which raises the "real questions" for this hearing. 18 In the consideration of whether any pleading might be amended, the Court must have regard not only to any hardship occasioned to the Plaintiff in refusing the application, but the likely prejudice occasioned to the Defendant in allowing the amendment. In the exercise of the discretion of the Court, all relevant circumstances are to be taken into consideration and weighed appropriately. 19 As was submitted on behalf of the Defendant, the Proposed Further Amended Statement of Claim "…is still defective…", on the following grounds:

[24]

33 Further, the Defendant submitted that "…aggravated and exemplary damages as claimed cannot be established by the matters claimed and particularised in paragraphs 10 and 11 of the Proposed Further Amended Statement of Claim….". 34 Until oral submissions made on 18 December 2004, the Plaintiff's claim included a claim for aggravated damages which was withdrawn by counsel, said to be as a result of counsel's research and subsequently counsel's instructions at that time. 35 Whilst I am therefore in the position that I need not decide the question of whether leave ought be granted to the Plaintiff to file an amended pleading which includes a claim for aggravated damages, as it is a matter which was withdrawn by the Plaintiff and therefore has not yet been made the subject of any determination by this Court; it may be that an appropriately framed claim for aggravation other than for nervous shock might nonetheless be included, if this be the Plaintiff's instructions, in any subsequent pleading of the nature to which I have referred below and therefore become a matter for the trial judge at the hearing or at some earlier stage. Of the likely evidence to be adduced, it seems to me to cause no further hardship for the Plaintiff, nor prejudice for the Defendant, in evidence being adduced going to matters of aggravated damages as much as matters of damages generally, if the Plaintiff so intends to plead his cause of action in this manner. 36 If the question of aggravated damages being available or not available has not been decided for plaintiffs in the position of Mr Covington-Thomas, then it may be that such a matter ought be one which is brought before the Court at the hearing to ensure, in accordance with Pt20 r1(2) SCR that the "…real questions raised by or otherwise depending on the proceedings [and] avoiding multiplicity of proceedings…" are considered by the Court. 37 It was further submitted that the question of exemplary damages as pleaded should not be the subject of any order granting the amendment, as there is no conduct on the part of the Defendant which could give rise to exemplary damages, that any such prayer would be the subject of an order that it be struck out and that therefore, such a prayer ought not be allowed as it is so clear on the face of the pleading that exemplary damages will not be awarded. 38 It is clearly the position that mere human fallibility is not sufficient by which to ground a claim for exemplary damages and the Plaintiff to date has not set out relevant particulars of any claim for exemplary damages, and in the circumstances of the case should not be allowed as being embarrassing as a matter of reading. However, subject to the orders I make as to the further course of the pleadings in this matter, which should ensure that all relevant matters are more clearly and comprehensively set out for the Court, I propose to allow the Plaintiff to file the Proposed Further Amended Statement of Claim. 39 In consideration of all the matters before me and noting that this is an interlocutory application made at a time when it appears further evidence is to be sought and thereafter adduced as to the basis and quantum of damages claimed by the Plaintiff, it is clear that the hearing of this matter set down for two weeks beginning in early June 2003 could not have proceeded on the Statement of Claim filed by the Plaintiff in November 1995, to which the Defendant had filed an appropriate defence and for which the Plaintiff had supplied relevant particulars under Pt33 r8A SCR, filed on 3 October 2002. 40 In my view the matter should not proceed without the fullest possible elucidation of the Plaintiff's claim, for which I do not consider that the Proposed Further Amended Statement of Claim is sufficient. However, although defective in some matters, that pleading goes a long way in setting out many of the matters to which the Court must have regard at the hearing. 41 I therefore propose to grant leave to the Plaintiff to file the Proposed Further Amended Statement of Claim, to be entitled the "Amended Statement of Claim" on the basis of the following conditions:

[28]

43 There are other hearing days (such as 3 July 2003) on which occasions the question of costs was not reserved, but for which the costs order made in this judgment on the question of the Amendment Motion shall apply. 44 I am conscious that whilst the Defendant has been principally successful in the arguments it has raised, although not always for the reasons it proffered, the Plaintiff is successful in being allowed to file the Proposed Further Amended Statement of Claim, after a significant amount of time and effort on the part of his legal advisors, with the benefit of argument advance on behalf of the Defendant and consideration by the Court as to the terms of some of the prayers made in the pleading. 45 However, the Plaintiff should nevertheless bear the costs of the application which was made to bring an amended pleading, principally because of the expansive manner in which the application was brought and continued. The difficulty of course is that some of the steps taken reflect not necessarily upon the Plaintiff, but upon the steps which were taken by his legal advisors. 46 As the application for vacating the hearing listed for two weeks beginning 23 June 2003 was made shortly before that hearing, at a time when preparation for the hearing would have been well advanced, the Defendant should have its costs thrown away by the vacating of that hearing, particularly as at the time the Court listed the matter for that hearing, the issues discussed in this judgment ought to have been known to the Plaintiff. 47 I therefore make the following orders as to costs in this matter: i. Plaintiff to bear the costs thrown away for the adjournment of the hearing listed for two weeks beginning Monday 23 June 2003 and ending Friday, 4 July 2003, which hearing was vacated by Orders made 18 June 2003; ii. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Monday, 16 June and Tuesday, 17 June 2003; iii. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Friday, 19 September 2003; iv. Defendant to pay the Plaintiff's costs of and incidental to the hearing on Friday, 24 October 2003; v. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Thursday, 18 December 2003; vi. Plaintiff to pay the Defendant's costs of and incidental to the Amendment Motion not otherwise addressed. *********

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Judgment (29 paragraphs)

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Cases Cited (2)

Cited By (1)