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Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64
Mental Health Act 2007 (NSW), s 47

Cases Cited: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Xie v Qin [2024] NSWCA 26

Category: Procedural rulings

Parties: Faisal Kanjrawi by his Tutor Stuart Gray (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation: Counsel:
J Morris / P D’Arcy-King (Plaintiff)
J Downing / B Epstein (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
NSW Crown Solicitor (Defendant)

File Number(s): 2019/355671

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. By way of a notice of motion dated 3 September 2026, returnable instanter in Court this morning, the plaintiff makes an application to amend his Further Amended Statement of Claim under s 64 of the Civil Procedure Act 2005 (NSW).

2. Section 64(1) of the Civil Procedure Act provides that, at any stage of the proceedings, the Court may relevantly order that any document in the proceedings be amended. Section 64(2) provides that, subject to s 58, all necessary amendments are to be made “for the purpose of determining the real questions raised by or otherwise depending on proceedings correcting any defect or error in the proceedings and avoiding multiplicity of proceedings”.

3. A proposed amendment was first communicated to the defendant’s solicitors by the plaintiff at approximately 1.19pm on 25 August 2026, being the twentieth and likely final day of evidence in this proceeding. That proposed amendment was then handed up to the Court half an hour later; being the time at which the psychiatric conclave on liability was about to recommence. That psychiatric conclave had originally commenced on 17 August 2026 but had not finished. It then took considerable administrative effort on behalf of the Court, the parties and the independent experts to schedule a reconvening of the conclave on the afternoon of 25 August 2026.

4. Given the defendant had only just received the proposed amendment prior to coming to Court on 25 August 2026, and given the plaintiff had neither sought nor obtained leave to amend his pleading, I directed that the psychiatric conclave proceed as planned by reference to the currently-filed version of the Further Amended Statement of Claim and that, if the plaintiff had an application to make to amend the pleading, that would have to occur at a later point.

5. At the conclusion of the psychiatric conclave on 25 August 2026, I scheduled a short hearing for the following morning to determine the application for leave to amend the Further Amended Statement of Claim, and indicated that the plaintiff could serve a revised draft by the following morning if he wished to make an application by reference to that draft.

6. In the morning of 26 August 2026, the plaintiff served a further version of the draft Second Further Amended Statement of Claim (which I marked as MFI 13). Senior Counsel for the defendant was unable to deal with the matter at that hearing, given the short time since he had received the draft. Thus, I set the matter down today for the hearing of the application. A further version of the draft pleading was handed up to the Court this morning (which I marked as MFI 14) and the plaintiff filed in Court a Notice of Motion returnable instanter seeking to amend the pleading in those terms.

7. This is my determination of the amendment application.

8. This is a complex matter. In terms of witnesses, the plaintiff has called four family members plus the plaintiff as lay witnesses. The defendant has called five health practitioners as lay witnesses, including consultant psychiatrist Dr Matthew Boulton who gave evidence over three days and Registered Nurse Brooke Carlin who gave evidence over two days. The matter has also involved extensive expert evidence as follows:

9. A psychiatric conclave on liability between two psychiatrists;

10. The defendant’s nursing expert on liability;

11. A neuropsychologist conclave involving two experts in respect to quantum;

12. A neurologist conclave involving two neurologists in respect of quantum;

13. An occupational therapy conclave in respect of quantum;

14. An occupational/rehabilitation physician conclave in respect of quantum involving two practitioners; and

15. A psychiatry conclave on quantum involving two neuropsychiatrists and a psychiatrist.

16. In short, this matter has already involved more than four weeks of sitting longer-than-ordinary court hours, in order to hear the large amount of lay and expert evidence. The plaintiff first foreshadowed his application to amend his Further Amended Statement of Claim when that forensic process was coming to an end.

17. In terms of a factor relevant to the dictates of justice in s 58 of the Civil Procedure Act, I conclude that the plaintiff has not acted with expedition in seeking amendment. Rather he waited some 12 days after the lay witnesses finished their evidence to make the application.

18. Further, the application was first foreshadowed at a time when an expert conclave was scheduled to commence, which made it inevitable that it could not in fact be dealt with at that time. That has created more delay and additional hearing time in this matter. There is also the additional delay that addressing the amendments has already caused, and would cause if allowed, in a matter that is already complex.

19. In terms of the breadth of the amendments, a very large number are sought. In crude terms, they involve turning a pleading that was previously 31 pages into a pleading that would run to 55 pages. I will address some of the amendments by way of example. But in broad terms, they involve a significant recasting of the scope and content of the duty said to be owed by St George Hospital and the nature of alleged breaches.

20. Part of the amendments also involve a new case to be put against individuals, Dr Boulton and RN Carlin, in circumstances where no such case alleging breach by named individuals has ever been put. Senior Counsel for the plaintiff accepted that no case in respect of an individual has ever previously been foreshadowed in particulars or correspondence sent to the defendant.

21. In terms of whether the amendments are necessary, in the sense referred to in s 64(2) of the Civil Procedure Act, there is some ambiguity in the plaintiff’s position on this. On the day when the pleading amendment was first foreshadowed, being 25 August 2026, Senior Counsel for the plaintiff submitted that the currently-filed iteration of the pleading already encompasses, in effect, the amendments he sought to make. In this respect, he submitted that the basis for the amendments was a “surfeit of caution”.

22. While Senior Counsel for the defendant does not accept that all of the proposed amendments are in substance within the terms of the current pleading, the plaintiff’s position means that the factor of whether the amendments are “necessary” carries less weight than it might in another case.

23. I now deal with some examples about the breadth of the amendments that are sought. Senior Counsel for the defendant placed some emphasis on the following. I address these by way of example only.

24. Paragraph [2C] of the proposed pleading includes a significant recasting of the content of the duty owed by St George Hospital. Specific emphasis is placed on particular (k) within [2C], which would recast the content of the duty in relation to orders for escorted leave of absence from a mental health facility, setting out a number of things that are said should have been undertaken.

25. Senior Counsel for the defendant submits that it is procedurally unfair to plead these types of matters after Dr Boulton, who was the consultant psychiatrist who made the leave order, has completed his evidence. Senior Counsel also points to the fact that a number of the amendments — for example, one referring to “conditions or precautions that ought to have been clearly expressed to avoid ambiguity”, are inadequately particularised which creates its own problems in terms of a lack of clarity. The other matter I would observe in relation to an amendment like that is as follows. The leave order that Dr Boulton had made was entered in the clinical notes. As such, the plaintiff knew the terms of the leave order and could have pleaded additional failings in respect of it from the outset, but did not.

26. Another example of the proposed amendments is the recasting of the scope of duty of a nurse before he or she permits departure of a patient from a mental health facility. RN Carlin had put on a witness statement setting out clearly what she says she did and did not do in this respect. As such, the matters set out in [2C](q) could have been pleaded before the hearing, but they were not. That conclusion is reinforced by the fact that the plaintiff’s nursing expert, Registered Nurse Kate Morris, had provided a written report relevant to that issue. However the plaintiff did not plead these matters in advance of the hearing.

27. Another example is [2C](r), which concerns an alleged failure of the nurse to, in effect, escalate the matter to check the suitability of the escort with a medical practitioner before allowing the plaintiff to go on leave. That was a matter that had been raised in the evidence of RN Morris. It may be that this issue already falls within another particular. Whether that is within the current pleadings is something I will determine as part of my final determination of these proceedings.

28. In relation to [2C](s), which is alleged to be a failure in relation to s 47(3) of the Mental Health Act 2007 (NSW), again it was apparent to the plaintiff that the leave order that had been entered in the clinical notes was in particular terms. These are the types of matters that could have been raised earlier and were not. Even if that is not the case in every single respect, there is the issue of procedural unfairness to the defendant, to which I will come to later.

29. Next in terms of [2D] of the proposed pleading, as I have already mentioned, there is a new case sought to be put against Dr Boulton as an individual which is followed up in [2E]. Separately, in a misnumbered additional paragraph [2E], a new case is sought to be put in respect of the named individual RN Carlin and what is said to be her failings.

30. Paragraph [52] of the pleading contains the allegations of the defendant’s breach of duty of care owed to the plaintiff. There is a proposed new particular (bb), being the failure of Dr Boulton to prepare a written leave plan. Again, that is something that could have been pleaded well before the hearing commenced.

31. In terms of proposed new particular [52](cc), which is a failure to address statutory precondition s 47(3) of the Mental Health Act, the clinical notes revealed what Dr Boulton had or had not memorialised in terms of the leave order he made under s 47(1). Also, as Senior Counsel for the defendant points out, the plaintiff had already chosen to articulate with some clarity in [15I] of the filed pleading, various aspects of the Mental Health Act that were said to be in play in this matter, and it did not seek to put a case in respect of s 47(3).

32. I refer in this respect to proposed new paragraph [31CB], which steps out what is said against Dr Boulton in terms of the ordering of leave under s 47 of the Mental Health Act. However, it was apparent to the plaintiff prior to the commencement of the hearing that, to the extent leave had been granted, it had been granted by Dr Boulton and, to the extent it was under any provision, it was under s 47 of the Mental Health Act. The plaintiff also had the benefit of a written statement of evidence of Dr Boulton as to the steps he took (and, implicitly, did not take).

33. I could keep going in respect of various amendments sought, but, in summary, the amendments sought are of great breadth. They involve a significant recasting of the scope and contents of the duty and the breach. They also involve an attempt to run whole new cases against named individuals, being Dr Boulton and RN Carlin.

34. I accept the submission of the defendant, although I give this lesser weight than other matters, that there is a procedural fairness issue to be considered where, as here, health practitioners are called as witnesses, being professional persons governed under regulatory legislation. The plaintiff opened the hearing on the basis that there may be regulatory or disciplinary consequences for the health practitioners who were to be called by the defendant as lay witnesses in the proceeding. What the plaintiff now seeks to do against named individual health practitioners, after they have given their evidence, is to put a different case against them alleging additional failings and breaches of duty. Based on that new case, presumably the plaintiff would ask the Court to make findings in respect of those individual failings, being matters that those witnesses did not have notice of prior to giving evidence.

35. Senior Counsel for the plaintiff referred, at a general level, to cases said to support a proposition that there was a common law duty which required him to seek to amend his pleading to bring it into line with the evidence that had been adduced at the hearing. I was taken to two particular cases. The first was Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at [6] (Murphy, Wilson, Brennan, Deane and Dawson JJ). That case predates the Civil Procedure Act which binds me. Senior Counsel for the plaintiff relied on the case primarily as espousing the general principle now encapsulated in s 64(2), in terms of making of all necessary amendments and so on for the purposes of determining the real questions in a proceeding. However, s 64(2) is also subject expressly to the terms of s 58 of the Civil Procedure Act.

36. I was also taken to the case of Xie v Qin [2024] NSWCA 26 at [49] (White JA, Meaghe JA and Basten AJA agreeing). The principles there set out were dealing with, in effect, the regularisation of pleadings where the parties had chosen to conduct a proceeding on issues other than those pleaded. Senior Counsel for the defendant confirmed in Court today that, from the defendant’s perspective, this case has not been conducted on issues other than those pleaded.

37. As such, the authorities to which Senior Counsel for the plaintiff took the Court, did not take the matters particularly further. None of the cases that I was referred to post-date the Civil Procedure Act.

38. Next, a matter upon which I place greater weight is the procedural unfairness and prejudice to the defendant generally. I accept the defendant’s submission that it was entitled to conduct its defence based on the plaintiff’s pleaded case. Senior Counsel for the defendant submits, and I accept without reservation, that it would have conducted its case differently had it known that it was facing a different pleading, including that it may have sought to adduce different evidence.

39. In this respect, I refer to authorities to which I have been directed to by the defendant in Court today, that it will be a sufficient basis for refusing leave to amend if the other party has either deliberately framed its case in a particular way and may have conducted the case differently had the new matters been in issue, or if it has been deprived of an opportunity to adduce evidence on the relevant issues.

40. This is a complex matter involving many witnesses. The transcript of the underlying proceedings will reveal that the cross-examination of lay witnesses and experts involved a large number of objections by counsel. There is also the fact that experts were engaged by the defendant on the basis of the case it understood it had to meet was as reflected in the pleading that had been filed.

41. It is not to the point that the plaintiff does not seek to recall any lay or expert witnesses as part of its amendment application. What is apposite at this juncture, in my view, is the prejudice to the defendant caused by the plaintiff seeking to run a different case on liability at a point when that phase of the proceeding is effectively over. In fact, the only part of this proceeding that currently remains unheard in terms of evidence is one issue in relation to quantum. That only arises because the plaintiff has separately sought, after the conclusion of the expert evidence, to amend his Statement of Particulars to add a new claim of high value.

42. Taking into account the overriding purpose of the Civil Procedure Act in s 56, being to facilitate the just, quick and cheap resolution of the real issues in the proceeding, given the circumstances set out above, in my view, it would be contrary to the overriding purpose in s 56 to grant the pleading amendment sought by the plaintiff except in respect of the further particularisation of particulars (y) and (z) to [52] of MFI 14.

43. For all of the reasons I have given and acting in accordance with the dictates of justice (s 58 of the Civil Procedure Act), I refuse the plaintiff’s application to amend his pleading other than in the two respects I have indicated, and to allow the amendments to [2B], which the defendant did not oppose.

44. I make the following orders:

45. Grant leave to the plaintiff to file in Court the notice of motion dated 3 September 2026.

46. The plaintiff’s application to amend the Further Amended Statement of Claim is refused other than to allow the amendment to [2B] and the particulars to [52](y) and [52](z) in MFI 14.

47. The plaintiff is to pay the defendant’s costs of the amendment application.

48. Direct parties by the close of day on 4 September 2026, to confer about a timetable whereby any further reports on the new damages particular are to be served with any further hearing days to occur by mid to late October. Parties to nominate two days in that time period to be listed for any hearing of further quantum evidence and closing submissions on quantum.

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