Franklin v State of New South Wales (TAFE NSW) (No. 3)

1. [1]

   The defendant in this matter, the State of New South Wales (effectively TAFE NSW) seeks leave by notice of motion filed 9 June 2023 to amend its defence pursuant to section 318(1)(b) of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) (“the Act”).

2. [2]

   That application is opposed.

3. [3]

   The most significant part of the proposed amended defence is paragraph 26 which pleads a break in the chain of causation between TAFE NSW and the plaintiff's ongoing disabilities because of medical negligence on the part of the three named defendants in medical negligence proceedings number 2017/00235452.

4. [4]

   Section 318(1)(b) of the Act relevantly provides that a defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claim pre-filing statement, within 42 days after service of that pre-filing statement, except with leave of the Court.

5. [5]

   Leave to amend can be given if the Court is satisfied that (1) the material concerned was not reasonably available to the parties when a pre-filing statement was served and (2) the failure to grant leave would substantially prejudice the parties' case: s 318(2).

6. [6]

   By way of background, on 9 March 2022 Ms Franklin, through her lawyers filed a notice of motion seeking leave under s 151D(2) for an extension to the time period within which she is permitted to commence proceedings against TAFE NSW. The extension of time was sought to 1 November 2021.

7. [7]

   I heard that notice of motion on 27 March 2023. It was supported by an affidavit of the plaintiff herself and her former solicitor. The defendant opposed the motion on the basis that there was a genuine concern, properly referenced and supported by evidence, that the defendant's position would be prejudiced and this late commencement of these proceedings.

8. [8]

   I carefully considered all of that material, heard argument and submissions and provided ex-tempore reasons that day: Franklin v State of New South Wales (TAFE NSW) [2023] NSWSC 293.

9. [9]

   As indicated in that judgment, I was assisted by oral and written submissions provided by counsel, and formed the view that leave should be given, despite the erroneous understanding of Ms Franklin's lawyer as to her obligations and requirements to file proceedings within the designated time period. To that extent, an indulgence was extended to the plaintiff.

10. [10]

    Paragraph 86 of that decision is very significant for the application I am currently considering. It states:

11. [11]

    It seems to me blindingly obvious that the type of “procedural order” and “necessary amendment” is exactly what has been presented in the proposed amended defence. I am surprised in those circumstances that the plaintiff’s legal representatives oppose the defendant's application to amend its defence. It seems to me inconsistent with their obligations under s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose rule to oppose the application to amend.

12. [12]

    I indicated very clearly at [86] of my judgment in March this year what was required, and what needed to be permitted and understood as to the basis upon which the plaintiff was afforded the indulgence extended to her.

13. [13]

    It is not to the point to argue that certain expert opinions and medical records were available some years ago that indicated certain potential analyses. The point is that the position has now changed. The plaintiff has common law proceedings in this Court that are now joined to be heard together with the medical negligence proceedings in this Court against three defendants, alleging that they were negligent in their treatment of the injuries, disabilities and sequelae that were said to have been caused by TAFE NSW's negligence.

14. [14]

    It is entirely appropriate that the defendant has leave to amend its defence on the terms set out in the proposed amended defence that has been circulated between the parties.

15. [15]

    Having said that, paragraph 26 of that amended defence carries with it an evidentiary requirement, that is that expert evidence will need to be served to support that allegation and that needs to happen within a reasonably circumscribed timeframe. I will make some case management orders in respect of that.

Orders

1. [16]

   I make the following orders:

   1. (1)

      Leave granted pursuant to Section 318(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for the defendant to file an amended defence in the form circulated between the parties.

   2. (2)

      The plaintiff to pay the defendant’s costs of this notice of motion.