CIVIL PROCEDURE — Amendment — Where plaintiff seeks to amend amended Statement of Claim — Where plaintiff has advanced four iterations of proposed Amended Statement of Claim — Claim now seeks to join the operator airline (as carrier and as second defendant) while maintaining claim against current defendant (as the carrier’s agent and as first defendant) — Principles of case management — Leave granted to amend
Quick Take
1Where a plaintiff seeks leave to amend pleadings to join an additional defendant and reformulate causes of action, the dictates of justice under ss 56–58 of the Civil Procedure Act 2005 (NSW) may favour granting leave even where the defendant contends the amended claim is liable to be struck out, provided there is a real triable issue and the proceedings are at a relatively early stage.
2Whether a party is characterised as a 'carrier's agent' entitled to the protections and liability limits under s 33 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) — including the 'in substitution' provision in s 36 foreclosing residual common law and ACL claims — requires proof that the agent acted within the scope of employment or authority, and is properly determined at trial rather than summarily on an amendment application.
