Jeffrey v Witherow & Anor

(2006) 31 WAR 236; [2006] WASCA 4

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Amendment of pleadings
4. › Application to amend close to trial
5. › Whether balance of justice favoured amendment
6. › Whether amendment would necessitate adjournment of trial
7. › Rules of the Supreme Court (WA), O 20 r 2(2), (3)
1. Practice and Procedure
2. › Pleadings
3. › Amendment of pleadings
4. › Limitation of actions
5. › Whether proposed amendment raised new cause of action outside limitation period
6. › Scope and effect of indorsement on writ
7. › Whether Weldon v Neal principle applied
8. › Rules of the Supreme Court (WA), O 20 r 2(2), (3), O 6 r 1
1. Appeal
2. › Interlocutory orders
3. › Leave to appeal
4. › Practice and procedure
5. › Standard of appellate review of discretionary interlocutory decisions

Quick Take

Under O 20 r 2(2) and (3) of the WA Rules, the deemed abandonment principle from Renowden v McMullin does not apply because the WA Rules require a connection between the statement of claim and the indorsement on the writ. Where proposed amendments to a statement of claim fall within the scope of the indorsement, the rule in Weldon v Neal does not bar the amendment as raising a new statute-barred cause of action. On applications to amend close to trial, the party opposing the amendment bears the practical burden of demonstrating that the amendment would necessitate an adjournment; where this is not established and the delay has not caused relevant prejudice, the balance of justice will generally favour granting the amendment.