McManus v Knights Rugby League Pty Ltd

HIS HONOUR: By notice of motion filed on 17 June 2019, the plaintiff seeks leave to file an amended statement of claim. The proposed amended document is annexed to the affidavit of Laura Barnett affirmed on that date, which was read without objection on this application.

The first defendant opposes the grant of leave to amend. The first defendant’s concerns about it are set forth in detail in a letter (erroneously) dated 31 August 2019. The following paragraphs of that letter serve adequately to explain the position:

The request for particulars that follows is extensive. The plaintiff has indicated that he is able to respond to the request within a short timeframe. The first defendant has correspondingly indicated that it will be in a position to file a defence to the proposed amended statement of claim if the requested particulars are provided.

On one view of the matter, the attitude of the first defendant is exceedingly generous. The proposed amended statement of claim is an extremely curious document. Although it pleads a duty to exercise reasonable care not to expose the plaintiff to the adverse effects of concussive injuries, it fails other than in a discursive and anecdotal way to particularise how this duty has been breached.

Paragraphs 82 to 86 of the document are in these terms:

The proposed amended statement of claim conspicuously fails to plead the material facts necessary to enable the first defendant to know the claim it is expected to meet. The protocols are on one view insufficiently identified in the body of the document. However, accepting for the sake of efficiency the suggestion that the manifold defects in that document, and the difficult position in which they place the first defendant, might be capable of remedy or at least amelioration if the requested particulars are provided, I shall adopt the attitude that is evident from the terms of the letter referred to earlier and direct the plaintiff to answer the first defendant’s request for particulars within 21 days of the date of these reasons. Provided that the plaintiff does so, I will grant him leave to file and to rely upon the proposed amended statement of claim.

Several issues arise concerning the costs associated with or thrown away by reason of the proposed amendments and to the now abandoned proposal by the plaintiff to join Lloyd’s of London & Chubb Insurance Co of Australia Ltd pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017. That proposal was predicated upon the contention that the second defendant was a proper or worthwhile defendant. As the plaintiff has now abandoned that contention, the prospect of joining its insurer has fallen away. The question of who should pay the costs of that exercise remains to be determined.

As the competing assertions about the costs of the application to amend and the costs of the proposal to join an insurer have not yet been fully argued, I will invite any party or proposed party wishing to argue for a particular costs order to provide me with written submissions by no later than 2 November 2019.

I will therefore make the following orders: