//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWSC 1547
Supreme Court of NSW
2012-12-07
Pembroke J
Original judgment source is linked above.
Introduction 1This is an application by the plaintiff to amend his amended statement of claim. It arises in unusual circumstances. In my decision given on 16 November 2012, Stojanovski v Stojanovski [2012] NSWSC 1338, I said: For reasons that I do not understand, the plaintiff amended his summons during the hearing, among other things, to abandon his alternative claim for an extension of time within which to bring a family provision claim. This may possibly have occurred because I drew to counsel's attention in opening the observations that I made in Madden-Smith v Madden [2012] NSWSC 146 about the policy reasons behind the twelve month time limit. However the circumstances of that case that led me to make those observations bear no resemblance to the facts of this case. The same result would not necessarily follow. I should say no more than that I would be prepared if necessary, in the particular circumstances of this case, to entertain an application by the plaintiff to further amend the summons to reinstate his claim for an extension of time within which to bring a family provision claim. The abandonment of that claim on the third day of the hearing may well have proceeded on a misapprehension. 2The proceedings are part-heard. I have done no more than determine the validity and effect of a deed entered into between the parties on 30 June 2009. I dismissed the claims in prayers 5 and 5A of the amended statement of claim but other issues in the proceedings remain for determination. One of those issues is a claim by the second defendant to bring a family provision claim under the Family Provision Act 1982 out of time. The plaintiff also made such a claim but, as I explained in the above excerpt from my principal judgment, amended his pleading on the third day of the hearing to remove it. 3At the time I did not know why the plaintiff did this. But at his request, I made a consent order to that effect. His solicitor has now explained that there were two reasons for the decision that was taken. The first was that there was no remaining time during the allocated hearing within which to advance the claim to bring a family provision claim out of time. That is because the application necessarily involved consideration of the merits of the family provision claim, on which there was substantial and time-consuming evidence. 4The second reason was however the primary consideration. Counsel for the plaintiff misapprehended certain comments I made during his opening in which I referred to the discussion in Madden-Smith v Madden [2012] NSWSC 146 about the policy reasons for maintaining the statutory time limit for family provision claims. Although my observations were not intended to indicate any view as to the outcome of the plaintiff's proposed application and were only designed to draw to counsel's attention a decision that I thought may be relevant, the plaintiff's counsel over-reacted. He reached the unhappy conclusion that his application to bring a family provision claim out of time was doomed to fail - at least before me. He so advised his solicitor. In fact, his pessimism was quite unjustified having regard to the quite different factual context in which the issue arises in this case. 5This sorry sequence of events, for which the plaintiff bears no personal responsibility whatsoever, then led to the amendment to which the first defendant gladly consented, removing the family provision claim from the plaintiff's pleading. The effect of the amendment now sought is to re-instate that claim.
Discretionary Considerations 6Subject to one point of principle which I will address more fully, the interests of justice favour the exercise of my discretion in the plaintiff's favour. My overriding aim is to ensure that all of the competing issues relating to the plaintiff's entitlement to the Jersey Avenue property are fully ventilated and that a just resolution is arrived at after considering all of those issues. Although a balancing act is necessarily required, a "just resolution", even more than a "quick and cheap resolution", will usually be the paramount statutory objective: Sections 56(1) and 57(1)(a), Civil Procedure Act 2005. See also Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [98]. 7Mistakes happen but this is not a case where the consequence of a mistake by counsel should be visited upon the plaintiff. To do so might only generate further tangential litigation between the plaintiff and his legal representatives without advancing the interests of justice in the case before me. And inadvertently, I played a small part in the mistake by the plaintiff's counsel. The sentiments expressed by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710 remain generally pertinent: Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. 8Additionally, this was not one of those decisions taken for strategic or tactical reasons, the consequences of which a party should be required to accept. The decision in this case was the result of an error, freely admitted. Nor do I accept that there is any valid ground of prejudice to the first defendant. The first defendant's solicitor has deposed to her client's desperation to reach a conclusion of the litigation with his brother and the pressure of the litigation on him and his wife. But I have little sympathy for the first defendant. He brought the litigation upon himself by resiling from the promise he made to his mother. The cost, expense and anxiety which he is now enduring are a consequence of his attempt to prevent the plaintiff having what his mother wished him to have. And the effect of the plaintiff's amendment on the supposed prejudice is minimal. There could not have been any material change of position in the five week period between 31 October (when the order was made) and 7 December (when the application to further amend was heard).
Res Judicata 9The point of principle to which I referred in paragraph [6] is this. The first defendant says, somewhat heroically, that the plaintiff's application is an abuse of process. He says that the consent order made by me on 31 October, which gave leave to the plaintiff to amend his amended statement of claim by deleting several prayers for relief, amounts to a res judicata. What he means is that the consent order is in effect a final resolution of the plaintiff's cause of action for leave to bring a family provision claim out of time. 10It is no such thing. It does not represent the disposition of the cause of action, let alone judgment for the first defendant on it. It did not amount to dismissal of the plaintiff's claim on that issue. It was an amendment to a pleading. Its effect was to temporarily withdraw a cause of action. Within weeks the plaintiff gave notice that he wished to reinstate it. 11The decision and reasoning in Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 have no bearing on the question in this case. The consent order in that case purported to determine once and for all the substance and the reality of the underlying cause of action. The order I made in this case did not do so. It was an interlocutory order on a matter of procedure. It did not determine for all time the plaintiff's cause of action for leave to bring a provision claim out of time.
Orders 12For those reasons, I make the following orders: (a)I make Order 1 in the plaintiff's notice of motion dated 4 December 2012. (b)I order that the costs of, and occasioned by, the amendment, including the hearing before me on 7 December 2012, be the first defendant's costs in the cause. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2012
Stojanovski
Stojanovski