NSW v Mulcahy

[2006] NSWCA 303

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment of pleadings
3. › Leave to amend statement of claim
4. › Restoration of previously abandoned causes of action
5. › Whether amendment futile where causes of action time-barred
6. › Whether reasonably arguable answer to limitation defence
7. › Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64(2)
1. Practice and Procedure
2. › Amendment of pleadings
3. › Case management principles
4. › Effect of Civil Procedure Act 2005 (NSW) on approach in Queensland v JL Holdings
5. › Whether overriding purpose provisions significantly alter approach to amendments
6. › Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64(2)
1. Limitation of Actions
2. › Fraudulent concealment
3. › Section 55 Limitation Act 1969 (NSW)
4. › Whether cause of action for misfeasance in public office is 'based on fraud or deceit'
5. › Whether cause of action fraudulently concealed where facts known to plaintiff from outset
6. › Limitation Act 1969 (NSW), ss 14, 18A, 55
1. Estoppel
2. › Estoppel by conduct
3. › Whether estoppel available as answer to limitation defence
4. › Whether unconscionable for State to rely on Limitation Act where police officers' false evidence deterred plaintiff from suing within time
5. › Limitation Act 1969 (NSW)

Quick Take

The Civil Procedure Act 2005 (NSW), ss 56, 57 and 58, significantly alters the approach to amendments established in Queensland v JL Holdings, requiring greater weight to be given to the earlier course of proceedings and case management considerations. Section 55(1)(a) of the Limitation Act 1969 (NSW) refers to a cause of action of which fraud or deceit is an element, not merely one in the proof of which evidence of fraud or deceit will emerge. The question whether estoppel by conduct can operate as a reply to a statutory limitation defence remains open but is reasonably arguable.