bar practice course - nsw bar

Counsel is briefed to appear on behalf of the plaintiff at the Notice of Motion in this

matter returnable on (date of application).

The plaintiff was injured in a rear end motor vehicle accident on 17 June (3 years ago).

The plaintiff was a front seat passenger; the vehicle was being driven by her husband.

All mandatory pre-litigations steps were complied with and proceedings for common law

damages were filed in the District Court on 4 February (last year). At the final directions

hearing in this matter, pursuant to instructions from our client, we advised the Court that

the plaintiff was ready for the allocation of a hearing date. The matter is listed for

hearing (in 4 weeks) with an estimate of 3 days.

Counsel will note from the enclosed Statement of Claim that a rather vague claim for

domestic assistance was made when the proceeding was commenced. This was on the

basis that our client assured us proper instructions would be provided promptly but,

unfortunately, she failed to provide them until recently. Counsel will also note that there

is no Particulars of Injury in respect of depression.

Approximately 4 weeks ago, our client attended our office without notice and provided us

with particulars to support the claim for domestic assistance. Our client also advised

that, in the course of a routine attendance upon her GP, she was referred to a

Psychiatrist and that Psychiatrist diagnosed her with depression and post traumatic

stress disorder (we suspect the inordinate delay by our client in providing instructions in

respect of the claim for domestic assistance was caused by her rather fragile mental

state).

Bar Practice Course

© The New South Wales Bar Association - Professional Development Department of 40

Accordingly, our client now seeks leave to amend her Statement of Claim. Given the

imminent hearing date, this Motion was filed expeditiously although a report from the

said Psychiatrist is not yet at hand. All we can do is attempt to seek leave, in due

course, to rely on the report when it arrives. Our client is very keen to keep the existing

hearing date as she wishes to finalise these proceedings. Our concern is, however, that

the Court may consider that the plaintiff now is in breach of the assurances we gave to

the Court at the directions hearing as to her readiness for a hearing date.

Counsel is herewith briefed with the following:

1. Notice of Motion filed (3 weeks ago);

2. Affidavit of Peter Smith sworn (3 weeks ago);

3. Statement of Claim filed 4 February (last year);

4. Statement of Particulars filed 4 October (last year);

5. Proposed Amended Statement of Claim;

6. Proposed Amended Statement of Particulars.

Counsel should note that the defendant also has a Notice of Motion returnable on (date

of application). The defendant’s Motion seeks leave to amend the Defence to plead

fraud.

Although it would be disingenuous to suggest we were not on some notice that fraud

might be alleged given that the defendant served a signed Witness Statement (of Mr I

Sawrit) approximately three months ago, no formal application to amend the Defence

was made until the Motion was filed. The amendment is opposed.

Counsel is also briefed with the following:

7. Defendant’s Notice of Motion filed on (3 weeks ago):

8. Affidavit of Ben Johnson sworn (3 weeks ago).

Yours faithfully

Peter Smith Solicitor, (Peter Smith & Associates)


Form 20 (version 1) UCPR 18.1 and 18.3

NOTICE OF MOTION

COURT DETAILS

Court District Court

List General

Registry Sydney

Case number 123 of (last year)

TITLE OF PROCEEDINGS

Plaintiff Sarah King

Defendant John Castle

FILING DETAILS

Person seeking orders Plaintiff

Legal representative Mr Peter Smith

Peter Smith & Associates

123 Phillip Street

Sydney NSW 2000

Legal representative reference PUS:456789

Contact name and telephone Peter Smith, 9123 4567

PERSON AFFECTED BY ORDERS SOUGHT

John Castle Defendant

HEARING DETAILS

This motion is listed at 4.30pm on (date of application) at the District Court, John Maddison Tower, 86 Goulburn Street, Sydney.


ORDERS SOUGHT

1 The Plaintiff be granted leave to file and serve an Amended Statement of Claim

in the form of that annexed to the affidavit of Peter Smith dated (3 weeks ago)

and marked with the letter “A”.

2 The Defendant pay the Plaintiff’s costs of the Motion;

3 Such further or other orders as this Honourable Court deems necessary.

SIGNATURE

Signature of legal representative

Peter Smith

Capacity Solicitor for the Plaintiff

Date of signature (3 weeks ago)

NOTICE TO PERSON AFFECTED BY ORDERS SOUGHT

If you do not attend, the court may hear the motion and make orders, including orders for costs, in your absence.

REGISTRY ADDRESS

Street address District Court, John Maddison Tower,

86 Goulburn Street, Sydney.

Postal address District Court Civil Registry

PO Box K1026

HAYMARKET NSW 2000

Telephone (02) 9377 5840


Form 40 (version 1) Rule 35.1

AFFIDAVIT OF PETER SMITH – 3 weeks ago

COURT DETAILS


List General

Registry Sydney





FILING DETAILS

Filed for: Plaintiff

Legal representative Mr Peter Smith

Peter Smith & Associates

123 Phillip Street

Sydney NSW 2000




AFFIDAVIT

Name Peter Smith

Address 123 Phillip Street, Sydney, New South Wales

Occupation Solicitor

Date (3 weeks ago)

I say on oath:

1. I am the solicitor for the plaintiff.

2. I believe that the information contained in this affidavit is true.

3. Instructions to commence common law proceedings for damages arising out of the

plaintiff’s motor accident were received on 16 January (last year).

4. Proceedings were commenced in this Honourable Court on 4 February (last year).

5. Approximately 1 week ago, the plaintiff advised our office that she had consulted a

psychiatrist and had been diagnosed with a psychiatric disorder. A report has

been requested from that psychiatrist but, regrettably, is not yet at hand. The

plaintiff undertakes to serve it immediately that it is received.

6. Accordingly, the Plaintiff seeks leave to file and serve a proposed amended

statement of claim in the form of that annexed to this affidavit and marked with the

letter “A”.

7. The plaintiff is desirous of not losing the imminent hearing date and regrets any

inconvenience this causes the Defendant and the Court.

8. The plaintiff requests this Honourable Court makes orders in accordance with the

Notice of Motion filed herein.

SWORN at Sydney

Signature of deponent Peter Smith

Signature of witness Mary Bloggs

Name of witness Mary Bloggs

Address of witness 2 Justice Street

Sydney NSW 2000

Capacity of witness Solicitor

And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent): 1 I saw the face of the deponent.


2 I have known the deponent for more than 12 months Signature of witness: Mary Bloggs Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.



STATEMENT OF CLAIM

COURT DETAILS


List General

Registry Sydney





FILING DETAILS/ADDRESS FOR SERVICE

Filed for Plaintiff Address for service Mr Peter Smith

Peter Smith & Associates 123 Phillip Street Sydney NSW 2000

Telephone 02 9123 4567 Fax 02 9123 4576

VENUE

District Court, John Maddison Tower, 86 Goulburn Street, Sydney, NSW

RELIEF CLAIMED

The plaintiff claims damages, interest and costs.


PLEADINGS AND PARTICULARS

The plaintiff relies on the following facts and assertions: 1. At all material times the Plaintiff was a front seat passenger in motor vehicle

registration JAK-123.

2. At all material times the Defendant was the driver of motor vehicle registration JOC-456.

3. On or about 17 June (3 years ago) the vehicle in which the Plaintiff was travelling

was stationary behind traffic on Phillip Street, Sydney, in the State of NSW. 4. At the same time and place the Defendant was travelling along Phillip Street,

Sydney and collided with the rear of the vehicle in which the Plaintiff was travelling.

5. The collision was caused by the Defendant’s negligence.

PARTICULARS OF NEGLIGENCE (a) Failed to keep and or any proper lookout; (b) Failed to keep his vehicle under any or any proper control; (c) Failed to steer, brake and manage his vehicle so as to avoid a

collision; (d) Res ipsa loquitur.

6. As a result of the said negligence of the Defendant the Plaintiff suffered and will

continue to suffer loss, injury and disability and damage.

PARTICULARS OF INJURY (a) Injury to neck; (b) Injury to shoulders; (c) Injury to upper & lower back; (d) Gross shock.

PARTICULARS OF DISABILITY

(a) Pain and restriction of movement to neck; (b) Pain and restriction of movement to shoulders;


(c) Pain and restriction of movement to upper and lower back; (d) Interference with pre-accident social activities; (e) Interference with pre-accident domestic activities.

PARTICULARS OF OUT-OF-POCKET EXPENSES The Plaintiff has incurred out-of-pocket medical and the like expenses:

(a) Macquarie Street Aromatherapy Centre $2,050; (b) Hunter Street Podiatry $1,200.

The Plaintiff will continue to incur out-of-pocket expenses and will provide updated particulars to the Defendant prior to the hearing.

PARTICULARS OF ECONOMIC LOSS

(a) The Plaintiff was born on 12 August 1977. The Plaintiff was

working full time as a psychiatric nurse practitioner earning $95,000 / annum. As a result of her injuries and disabilities the Plaintiff was required to have 4 weeks off work after which she returned to full time duties and she remains on full time duties although she works with pain.

(b) At the time of the accident the Plaintiff was contemplating enrolling in Medical School and was hopeful of eventually specialising in Neurosurgery. In that regard the plaintiff claims a loss of $15,000/wk or, alternatively, claims a diminution in earning capacity on the open labour market as a psychiatric nurse practitioner.

PARTICULARS OF DOMESTIC ASSISTANCE

The Plaintiff required assistance from friends and relatives in respect of domestic care and assistance and makes a claim in this regard pursuant to the principles laid down in Griffiths v Kerkemeyer. Full particulars will be provided to the Defendant in due course.

SIGNATURE

Signature Peter Smith

Name Peter Smith

Capacity Solicitor for plaintiff


Date 4 February (last year)

AFFIDAVIT VERIFYING

Name Sarah Castle

Address 2 Conner Street, Glebe, New South Wales

Occupation Psychiatric Nurse Practitioner

On 4 (last year), I affirm:

1. I am the plaintiff.

2. I believe that the allegations of fact in the statement of claim are true.

SWORN at

Signature of deponent S.Castle

Signature of witness Peter Smith

Name of witness Peter Smith

Capacity of witness Solicitors

Address of witness 123 Phillip Street, Sydney

CERTIFICATE – SECTION 347 OF THE LEGAL PROFESSION ACT 2004

I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.


Name Peter Smith

Capacity Solicitor



PARTY DETAILS

PLAINTIFF

Family name King Given names Sarah Address 2 Conner Street, Glebe, New South Wales

PLAINTIFF’S REPRESENTATIVE

Solicitor on the record

Name Peter Smith Practising Certificate No 1234 Address for service Peter Smith & Associates

123 Phillip Street Sydney NSW 2000

Telephone 02 9123 4567 Fax 02 9123 4576

DEFENDANT

Defendant

Family name Castle Given names John Address 6/45 Murdoch Street, Sydney, NSW


HOW TO RESPOND

You can respond by:

Agreeing to the claim

Filing a defence and/or making a cross-claim against the plaintiff

If money is being claimed, paying the plaintiff all of the money and any interest claimed

If money is being claimed, signing an agreement with the plaintiff to pay the money. You can get further information about the forms you need to file to respond to this statement of claim from:

The registry

A legal practitioner

LawAccess NSW on 1300 888 529 or at www.lawaccess.nsw.gov.au. NOTICE TO DEFENDANT You will be in default, if you do not file a defence within 28 days of being served with this statement of claim. The court may enter judgment against you without any further notice to you. The judgment may be for the relief sought in the statement of claim and for the plaintiff’s costs for bringing these proceedings. REGISTRY ADDRESS

Street address John Maddison Tower, 86 Goulburn Street Sydney

Postal address Sydney District Court Civil Registry, PO Box K1026, Haymarket 2000

Telephone (02) 9377 5840



STATEMENT OF PARTICULARS

PERSONAL INJURY PROCEEDINGS

COURT DETAILS


List General

Registry Sydney





FILING DETAILS/ADDRESS FOR SERVICE

Filed for Plaintiff Address for service Mr Peter Smith

Peter Smith & Associates 123 Phillip Street Sydney NSW 2000

Telephone 02 9123 4567 Fax 02 9123 4576

PARTICULARS OF INJURIES

(a) Injury to neck

(b) Injury to shoulders

(c) Injury to upper & lower back

(d) Gross shock


PARTICULARS OF DISABILITIES

(a) Pain and restriction of movement to neck

(b) Pain and restriction of movement to shoulders

(c) Pain and restriction of movement to upper and lower back

(d) Interference with pre-accident social activities

(e) Interference with pre-accident domestic activities

(f) Requirement to consume medication

(g) Requirement to undergo medical treatment

PARTICULARS OF OUT-OF-POCKET EXPENSES

The Plaintiff has incurred and will continue to incur out-of-pocket medical and the like

expenses.

(a) Macquarie Street Aromatherapy Centre $2,050

(b) Hunter Street Podiatry $1,200

Full updated particulars will be provided to the Defendant prior to the hearing of this

matter.

PARTICULARS OF CONTINUING OUT-OF-POCKET EXPENSES

The Plaintiff will continue to incur out-of-pocket medical and the like expenses. Full

updated particulars will be provided to the Defendant prior to the hearing of this matter.

PARTICULARS OF CLAIM FOR DOMESTIC ASSISTANCE OR ATTENDANT CARE

The Plaintiff required and will continue to require assistance from friends and relatives in

respect of domestic care and assistance and makes a claim in this regard pursuant to

the principles laid down in Griffiths v Kerkemeyer. Full particulars will be provided to the

Defendant in due course.

PARTICULARS OF LOSS OF INCOME

The Plaintiff was born on 12 August 1977. The Plaintiff was working full time as a

psychiatric nurse practitioner earning $95,000 per annum. As a result of her injuries and

disabilities the Plaintiff was required to have 4 weeks off work after which she returned to

full time duties and she remains on full time duties although she works with pain.

PARTICULARS OF LOSS OF FUTURE EARNINGS AND EARNING CAPACITY


At the time of the accident the Plaintiff was contemplating enrolling in Medical School

and was hopeful of eventually specialising in Neurosurgery. In that regard the plaintiff

claims a loss of $15,000/wk or, alternatively, claims a diminution in earning capacity on

the open labour market as a psychiatric nurse practitioner

LIST OF DOCUMENTS SERVED IN SUPPORT OF CLAIM FOR SPECIAL DAMAGE

AND ECONOMIC LOSS

A Schedule will be provided to the defendant in due course.

LIST OF SERVED MEDICAL AND EXPERTS’ REPORTS


LIST OF ANY ADDITIONAL SERVED DOCUMENTS


SIGNATURE


Name Peter Smith

Capacity Solicitor for plaintiff


PARTY DETAILS

Parties to the proceedings

PLAINTIFF DEFENDANT

Sarah King John Castle


“A” Form 3A (version 1) UCPR 6.2

AMENDED STATEMENT OF CLAIM

COURT DETAILS


List General

Registry Sydney





FILING DETAILS

Filed for Sarah King plaintiff

Legal representative Mr Peter Smith, Peter Smith & Associates



TYPE OF CLAIM

Torts - Negligence - Motor Vehicle Accident

RELIEF CLAIMED

1 Damages

2 Interest

3 Costs



The plaintiff relies on the following facts and assertions:

1. At all material times the Plaintiff was a front seat passenger in motor vehicle

registration JAK-123.

2. At all material times the Defendant was the driver of motor vehicle registration

JOC-456.

3. On or about 17 June (3 years ago) the vehicle in which the Plaintiff was travelling

was stationary behind traffic on Phillip Street, Sydney, in the State of NSW.

4. At the same time and place the Defendant was travelling along Phillip Street,

Sydney and collided with the rear of the vehicle in which the Plaintiff was travelling.

5. The collision was caused by the Defendant’s negligence.

PARTICULARS OF NEGLIGENCE

(a) Failed to keep and or any proper lookout;

(b) Failed to keep his vehicle under any or any proper control;

(c) Failed to steer, brake and manage his vehicle so as to avoid a

collision;

(d) Res ipsa loquitur.

6. As a result of the said negligence of the Defendant the Plaintiff suffered and will

continue to suffer loss, injury and disability and damage.

PARTICULARS OF INJURY

(a) Injury to neck;

(b) Injury to shoulders;

(c) Injury to upper & lower back;

(d) Gross shock;

(e) Neurological injury to shoulders;

(f) Neurological radiation of pain into arms and hands;


(g) Severe psychiatric injury.

PARTICULARS OF DISABILITY

(a) Pain and restriction of movement to neck;

(b) Pain and restriction of movement to shoulders;

(c) Pain and restriction of movement to upper and lower back;

(d) Interference with pre-accident social activities;

(e) Interference with pre-accident domestic activities;

(f) Requirement to consume anti-depressants;

(h) Requirement to undergo psychiatric counselling.

PARTICULARS OF OUT-OF-POCKET EXPENSES The Plaintiff has incurred out-of-pocket medical and the like expenses:

(a) Macquarie Street Aromatherapy Centre $2,050; (b) Hunter Street Podiatry $1,200; (c) Dr Freud $1,000.

The Plaintiff will require two (2) Psychiatric Counselling Sessions per week at a cost of $150/session for the balance of her life. The Plaintiff will continue to incur out-of-pocket expenses and will provide updated particulars to the Defendant prior to the hearing.

PARTICULARS OF ECONOMIC LOSS

(a) The Plaintiff was born on 12 August 1977. The Plaintiff was

working full time as a psychiatric nurse practitioner earning $95,000 per annum. As a result of her injuries and disabilities the Plaintiff was required to have 4 weeks off work after which she returned to full time duties and she remains on full time duties although she works with pain.

(b) At the time of the accident the Plaintiff was contemplating enrolling in Medical School and was hopeful of eventually specialising in Neurosurgery. In that regard the plaintiff claims a loss of $15,000/wk or, alternatively, claims a diminution in earning capacity on the open labour market as a psychiatric nurse practitioner.


PARTICULARS OF DOMESTIC ASSISTANCE

The Plaintiff required 3 hours assistance per day from friends and relatives in respect of personal care for the first 5 months after the accident and 5 hours assistance per day from friends and relatives in respect of general domestic assistance for the first 7 months after the accident. Thereafter the Plaintiff required and will continue to require 6 hours per week personal and domestic assistance for the balance of her life. The Plaintiff makes a claim in this regard pursuant to the principles laid down in Griffiths v Kerkemeyer.

SIGNATURE OF LEGAL REPRESENTATIVE

I certify that there are reasonable grounds for believing on the basis of provable facts

and a reasonably arguable view of the law that the claim for damages in these

proceedings has reasonable prospects of success.

I have advised the plaintiff that court fees may be payable during these proceedings.

These fees may include a hearing allocation fee.

Signature

Capacity Solicitor on the record

Date of signature


NOTICE TO DEFENDANT

You will be in default if you do not file a defence within 28 days of being served with this

statement of claim. The court may enter judgment against you without any further notice

to you. The judgment may be for the relief claimed in the statement of claim and for the

plaintiff's costs of bringing these proceedings. The court may provide third parties with

details of any default judgment entered against you.

HOW TO RESPOND

Please read this statement of claim very carefully. If you have any trouble

understanding it or require assistance on how to respond to the claim you should

get legal advice as soon as possible.

You can respond in one of the following ways:

1 If you intend to dispute the claim, by filing a defence and/or making a cross-

claim.

2 If money is claimed, and you believe you owe the money claimed, by:

Paying the plaintiff all of the money and interest claimed. If you file a notice

of payment under UCPR 6.17 further proceedings against you will be

stayed unless the court otherwise orders.

Filing an acknowledgement of the claim.

Applying to the court for further time to pay the claim.

3 If money is claimed, and you believe you owe part of the money claimed,

by:

Paying the plaintiff that part of the money that is claimed.

Filing a defence in relation to the part that you do not believe is owed.

You can get further information about what you need to do to respond to the claim from:

The court registry.

A legal practitioner.

LawAccess NSW on 1300 888 529 or at www.lawaccess.nsw.gov.au.

http://www.lawaccess.nsw.gov.au/


Court forms are available on the UCPR website at www.lawlink.nsw.gov.au/ucpr or at any NSW court registry.

REGISTRY ADDRESS




PO Box K1026

HAYMARKET NSW 2000

Telephone (02) 9377 5840

http://www.lawlink.nsw.gov.au/ucpr


AFFIDAVIT VERIFYING

Name Sarah Castle

Address 2 Conner Street, Glebe, New South Wales

Occupation Psychiatric Nurse Practitioner

Date

I affirm:

1. I am the plaintiff.

2. I believe that the allegations of fact in the statement of claim are true.

AFFIRMED at

Signature of deponent

Signature of witness

Name of witness

Address of witness

Capacity of witness


FURTHER DETAILS ABOUT PLAINTIFF

Plaintiff

Name Sarah King

2 Connor Street

Glebe NSW 2037

Legal representative for plaintiff

Name Peter Smith

Practising certificate number 19707

Firm Peter Smith & Associates

123 Phillip Street

Sydney NSW 2000

Telephone 02 9123 4567

Fax 02 9123 4567

Email [email protected]

DETAILS ABOUT DEFENDANT[S]

Defendant

Name John Castle

Address Unit 6

45 Murdoch Street

Sydney NSW 2000

mailto:[email protected]



AMENDED STATEMENT OF PARTICULARS

PERSONAL INJURY PROCEEDINGS

COURT DETAILS


List General

Registry Sydney





FILING DETAILS

Filed for Sarah King plaintiff

Legal representative Mr Peter Smith, Peter Smith & Associates



PARTICULARS OF INJURIES RECEIVED

(a) Injury to neck

(b) Injury to shoulders

(c) Injury to upper & lower back

(d) Injury to knees

(e) Gross shock

(f) Neurological injury to shoulders

(g) Neurological radiation of pain into arms and hands

(h) Severe psychiatric injury


PARTICULARS OF CONTINUING DISABILITIES

(a) Pain and restriction of movement to neck

(b) Pain and restriction of movement to shoulders

(c) Pain and restriction of movement to upper and lower back

(d) Interference with pre-accident social activities

(e) Interference with pre-accident domestic activities

(f) Requirement to consume medication

(g) Requirement to undergo medical treatment

(i) Requirement to consume anti-depressants

(j) Requirement to undergo psychiatric counselling

PARTICULARS OF OUT-OF-POCKET EXPENSES

The Plaintiff has incurred and will continue to incur out-of-pocket medical and the like

expenses.

(a) Macquarie Street Aromatherapy Centre $2,050

(b) Hunter Street Podiatry $1,200

(c) Dr Freud $1,000

Full updated particulars will be provided to the Defendant prior to the hearing of this

matter.

PARTICULARS OF CONTINUING OUT-OF-POCKET EXPENSES

The Plaintiff will continue to incur out-of-pocket medical and the like expenses. Full

updated particulars will be provided to the Defendant prior to the hearing of this matter.

The Plaintiff will require two (2) Psychiatric Counselling Sessions per week at a cost of

$150/session for the balance of her life.


PARTICULARS OF CLAIM FOR DOMESTIC ASSISTANCE OR ATTENDANT CARE

The Plaintiff required 3 hours assistance per day from friends and relatives in respect of

personal care for the first 5months after the accident and 5 hours assistance per day

from friends and relatives in respect of general domestic assistance for the first 7 months

after the accident.

Thereafter the Plaintiff required and will continue to require 6 hours per week personal

and domestic assistance for the balance of her life. The Plaintiff makes a claim in this

regard pursuant to the principles laid down in Griffiths v Kerkemeyer.

PARTICULARS OF LOSS OF INCOME

The Plaintiff was born on 12 August 1977. The Plaintiff was working full time as a

psychiatric nurse practitioner earning $95,000 per annum. As a result of her injuries and

disabilities the Plaintiff was required to have 4 weeks off work after which she returned to

full time duties and she remains on full time duties although she works with pain.

PARTICULARS OF LOSS OF EARNING CAPACITY AND FUTURE ECONOMIC LOSS

At the time of the accident the Plaintiff was contemplating enrolling in Medical School

and was hopeful of eventually specialising in Neurosurgery. In that regard the plaintiff

claims a loss of $15,000/wk or, alternatively, claims a diminution in earning capacity on

the open labour market as a psychiatric nurse practitioner.

LIST OF DOCUMENTS SERVED


SIGNATURE

Signature

Capacity

Date


SARAH KING v JOHN CASTLE

OBSERVATIONS TO COUNSEL

Counsel is briefed to appear in the interests of the defendant. The plaintiff alleges injury

arising out of a motor vehicle accident on 17 June (3 years ago) when it is said her

vehicle was “rear ended” by the defendant.

In the course of investigating this claim our client retained investigators who obtained a

statement from a bystander named Mr I Sawrit. Mr Sawrit states that there was, indeed,

a collision between our client’s vehicle and the vehicle identified in the plaintiff’s

Statement of Claim. Mr Sawrit is resolute, however, that immediately after the collision a

female (who we understand to be the plaintiff) arrived on the scene, got into the front

passenger seat, and then immediately re-emerged clutching her neck.

To date we have been of the view that it is not necessary to plead fraud and we are

entitled to simply put the plaintiff to proof of all aspects of her case and to that end we

have merely denied all paragraphs of the plaintiff’s Statement of Claim.

However, as a protective measure we have filed the enclosed Notice of Motion so that

there can be no uncertainty as to the case we intend to run. The matter is listed for

hearing in three weeks.

We anticipate the plaintiff will strongly oppose the application to include a fraud count in

the Defence however it should be noted that approximately three months ago we served

Mr Sawrit’s witness statement on the plaintiff. In those circumstances it is our view a

Court will agree that the plaintiff is not caught by surprise by this proposed amendment.

Counsel is herewith briefed with the following:

1. Notice of Motion filed (3 weeks ago);

2. Affidavit of Ben Johnson sworn (3 weeks ago);

3. Defence filed 13 April (last year);


4. Proposed Amended Defence;

5. Statement of Mr I Sawrit.

The plaintiff also has a Notice of Motion returnable on 8(date of application). The

plaintiff seeks to amend her claim to include a head of damage not properly

particularised in the past and to also add a particular of injury which completely takes the

defendant by surprise.

Counsel is herewith also briefed with a copy of the following:

6. Plaintiff’s Notice of Motion filed (3 weeks ago).

7. Affidavit of Plaintiff’s Solicitor, Peter Smith, sworn (3 weeks ago);

8. Statement of Claim filed 4 February (last year);

9. Statement of Particulars filed 4 February (last year);

10. Proposed Amended Statement of Claim;

11. Proposed Amended Statement of Particulars.

The defendant opposes the plaintiff’s expansion of her case at this late point in time. In

our view the amendments sought are too late and the case should proceed on (in 4

weeks) as originally pleaded and particularised.

Ben Johnson Solicitor Johnson & Johnson Solicitors


Form 20 (version 1) UCPR 18.1 and 18.3

NOTICE OF MOTION

COURT DETAILS


List General

Registry Sydney

Case number 123 of 2013




FILING DETAILS

Person seeking orders John Castle – Defendant

Legal representative Mr Ben Johnson

Johnson & Johnson Solicitors

1 Elizabeth Street, Sydney, NSW 2000

Legal representative reference BJ:2

Contact name and telephone Ben Johnson, 9223 3989

PERSON AFFECTED BY ORDERS SOUGHT

Sarah King Plaintiff

HEARING DETAILS

This motion is listed at 4.30pm on (date of application) at the District Court, John Maddison Tower, 86 Goulburn Street, Sydney.


ORDERS SOUGHT

1 The defendant be granted leave to file and serve an Amended Defence in the

form of that annexed to the affidavit of Ben Johnson dated (3 weeks ago) and

marked with the letter “B”.

2 The plaintiff pay the defendant’s costs of the Motion.

3 Any further or other order this Honourable Court deems fit.

SIGNATURE

Signature of legal representative

B. Johnson

Capacity Solicitor for the Defendant

Date of signature (3 weeks ago)

NOTICE TO PERSON AFFECTED BY ORDERS SOUGHT

If you do not attend, the court may hear the motion and make orders, including orders for costs, in your absence.

REGISTRY ADDRESS




PO Box K1026

HAYMARKET NSW 2000

Telephone (02) 9377 5840



AFFIDAVIT OF BEN JOHNSON – 3 weeks ago

COURT DETAILS


List General

Registry Sydney





FILING DETAILS

Filed for Defendant

Legal representative Mr Ben Johnson

Johnson & Johnson Solicitors

1 Elizabeth Street, Sydney, NSW 2000




AFFIDAVIT

Name Ben Johnson

Address 1 Elizabeth Street, Sydney, New South Wales,

Occupation Solicitor

Date (3 weeks ago)

I say on oath,

1. I am the defendant’s solicitor in these proceedings.

2. Annexed hereto and marked “A” is a statement of Ian Sawrit which was served on

the plaintiff approximately three months ago.

3. The defendant seeks leave to amend the Defence in the form of that annexed to

this affidavit and marked “B” to plead fraud and says there can be no prejudice to

the plaintiff in the circumstances of the service of the statement of Mr I Sawrit.

4. The defendant requests this Honourable Court make the orders sought in the

Notice of Motion filed herein.

SWORN at Sydney

Signature of deponent B. Johnson

Signature of witness Carole Dunne

Name of witness Carole Dunne

Address of witness 34 Elizabeth Street, Sydney, NSW, 2000

Capacity of witness JP 1243

And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent): 1 I saw the face of the deponent. 2 I have known the deponent for more than 12 months Signature of witness: Carole Dunne Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.


“A”

STATEMENT OF MR IAN SAWRIT

1. My name is Ian Sawrit.

2. I reside at 123 Everyman Street, Sunnydale in the State of New South Wales.

3. On 17 June (3 years ago) I was standing on the footpath in Phillip Street, Sydney

waiting to be picked up by my wife after having done some shopping.

4. As I was waiting I saw vehicle registration number JOC-456 collide with the rear of

vehicle registration number JAK-123.

5. At the time of the collision I could see clearly into both vehicles and both contained

only one person being the person in the driver’s seat.

6. The driver of the second vehicle was male; he appeared stunned and did not get

out of his car.

7. The driver of the first vehicle, the one that had been hit, was definitely a male also.

8. Within a matter of seconds after the collision a lady appeared from nowhere and

walked over to the passenger side of the first car and got into the front passenger

seat and appeared to have a conversation with the male driver.

9. The next thing that happened was that the lady got out of the passenger seat and

was holding her neck and she started to cry.

10. Although I had had quite a bit to drink before these events unfolded before my

eyes I am pretty sure that the lady was not in the car when the accident happened.

I Sawrit 28 May (2 years ago) This is the annexure marked ‘A’ to the affidavit of Ben Johnson sworn (3 weeks ago) before me: Carole Dunne



DEFENCE

COURT DETAILS


List General

Registry Sydney





FILING DETAILS / ADDRESS FOR SERVICE

Filed for Defendant Address for service Mr Ben Johnson

Johnson & Johnson Solicitors 1 Elizabeth Street, Sydney NSW 2000

Telephone 02 9223 3989 Fax 02 9223 1234

PLEADING AND PARTICULARS

The defendant denies all paragraphs of the plaintiff’s Statement of Claim.

SIGNATURE

Signature B.Johnson

Name Mr Ben Johnson

Capacity Solicitor for defendant

Date 13 April (last year)

AFFIDAVIT VERIFYING

Name John Castle

Address 6/45 Murdoch Street, Sydney, NSW

Occupation Retired


On 13 April (last year), I say on oath: 1. I am the defendant.

2. I believe that the allegations of fact contained in this defence are true.

3. I believe that the allegations of fact that are denied in this defence are untrue.

4. After reasonable inquiry, I do not know whether or not the allegations of fact that

are not admitted in this defence are true.

SWORN

At Sydney

Signature of deponent John Castle

Signature of witness Ben Johnson

Name of witness Ben Johnson

Capacity of witness Solicitor

CERTIFICATE – SECTION 347 OF THE LEGAL PROFESSION ACT 2004

I certify that there are reasonable grounds for believing on the basis of provable facts

and a reasonably arguable view of the law that the defence to the claim for damages in

these proceedings has reasonable prospects of success.

Signature Ben Johnson

Name Ben Johnson

Capacity Solicitor

Date 13 April (last year)


HOW TO RESPOND

You can respond by:

Filing a reply if the proceedings are in the Supreme Court or the District Court

Seeking leave to file a reply if the proceedings are in a Local Court. You can get further information about the forms that need to be filed to respond from:

The registry

A legal practitioner

LawAccess NSW on 1300 888 529 or at www.lawaccess.nsw.gov.au. REGISTRY ADDRESS

Street address John Maddison Tower, 86 Goulburn Street Sydney

Postal address Sydney District Court Civil Registry, PO Box K1026, Haymarket 2000

Telephone (02) 9377 5840


PARTY DETAILS

PLAINTIFF

Family name King Given names Sarah Address 2 Conner Street, Glebe, New South Wales

PLAINTIFF’S REPRESENTATIVE


Name Peter Smith Practising Certificate No 1234 Address for service Peter Smith & Associates

123 Phillip Street Sydney NSW 2000

Telephone 02 9123 4567 Fax 02 9123 4576

DEFENDANT

Defendant

Family name Castle Given names John Address 6/45 Murdoch Street, Sydney, NSW DEFENDANTS’S REPRESENTATIVE


Name Mr Ben Johnson Practising Certificate No 666 Address for service Mr Ben Johnson

Johnson & Johnson Solicitors 1 Elizabeth Street, Sydney NSW 2000

Telephone 02 9223 3989 Fax 02 9223 1234


“B” Form 7A (version 1)

UCPR 14.3

AMENDED DEFENCE

COURT DETAILS


List General

Registry Sydney



Plaintiff

Sarah King


FILING DETAILS

Filed for John Castle Defendant

Legal representative Mr Ben Johnson, Johnson & Johnson Solicitors




1 The defendant denies all paragraphs of the plaintiff’s Statement of Claim.

2 Further or in the alternative to paragraph 1 the defendant says in answer to the

whole of the Statement of Claim that the plaintiff’s claim is fraudulent.

Particulars

(a) The plaintiff was not a passenger in the subject motor vehicle at the time

of the alleged accident.

SIGNATURE OF LEGAL REPRESENTATIVE

I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the defence to the claim for damages in these proceedings has reasonable prospects of success.

Signature

Capacity Solicitor on the record

Date of signature


AFFIDAVIT VERIFYING

Name John Castle

Address 6/45 Murdoch Street, Sydney, NSW

Occupation Retired

Date

I say on oath:

I am the defendant.

1. I believe that the allegations of fact contained in the defence are true.

2. I believe that the allegations of fact that are denied in the defence are untrue.

3. After reasonable inquiry, I do not know whether or not the allegations of fact that

are not admitted in the defence are true.

SWORN at

Signature of deponent

Signature of witness

Name of witness

Address of witness

Capacity of witness

bar practice course - nsw bar

Documents