Jones v State of New South Wales [2026] NSWSC 741 (Link to Caselaw).
With thanks to Jack Isackson for drawing attention to this interlocutory decision regarding hearing preparation and leave to amend a statement of claim in a matter in which sexual abuse by a schoolteacher was alleged to have occurred in 1977. Hearing of the plaintiff’s claim had previously started, but an adjournment was granted as on the first day it became apparent that the plaintiff’s case was inadequately prepared, including that the plaintiff’s evidentiary statement did not disclose, in admissible form, the facts said to support her claim of abuse by the teacher and hence the relevant circumstances for evaluation to determine whether the defendant is liable for those acts.
Lonergan J reviewed the legislation, rules and principles regarding amendments, noting firstly the primary position that once a date has been fixed for trial, the plaintiff may not amend the statement of claim unless the Court grants leave ([39] – [52]).
Senior counsel for the plaintiff submitted that the amendments did no more than bring the pleading into line with the statements and material served in the proceedings in such a way as elucidates the issues and assists the Court. Senior counsel for the defendant submitted that there was a change to the facts relied on and that required explanation in affidavit form.
Additional submissions were made in relation to a Wilkinson v Downton amendment, given that the teacher had died and was not available to give evidence as to his conduct and whether it was “calculated” to cause harm, one of the key elements of the tort. The defendant submitted that there is a question mark over whether the law in Australia recognises an independent tort established by Wilkinson v Downton.
The court held that the absence of an affidavit was not fatal to the application to amend. As to Wilkinson v Downton, no precedent in an identical context was identified but that did not mean that the claim could not be pressed or should not be allowed as an amendment on the basis that it is hopeless. No evidence of specific prejudice to the defendant was tendered.
There was still over three months before resumption of the hearing, providing adequate time for requests for particulars, a response, the filing of a further defence, and further preparation. Any prejudice to the defendant could be addressed by costs. The application to amend was granted.
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