Porter v Le [2016] NSWSC 1030 provides a further interlocutory decision in this matter, which on this occasion saw an application by the plaintiff to amend his statement of claim shortly before the hearing. Leave was granted and the defendant’s application to vacate the hearing date was refused.

The court said at [17]:

The proposed amendments do not raise a new case. They are directed to the issue of what might reasonably have been the plaintiff’s condition if he had not taken the Panafcort. That inquiry is merely the obverse of the case that his symptoms were masked by that drug. That has always been the plaintiff’s contention in this litigation. The very concept that the plaintiff’s underlying condition could or might have been masked or disguised by the effects of the Panafcort prescribed by the defendant necessarily raises the question of what his condition would or might have been but for its ingestion. The plaintiff’s clinical presentation is a function of whatever infection he may have been suffering from and the medical strategies and pharmacological measures that may have been taken to correct it. I am unable to accept that the alleged disruption to the case and to the defendant’s preparation for the hearing could not and should not have been anticipated having regard to the way in which these proceedings have been conducted for some time. The amendments to the pleadings do not appear to me to do any more than formalise or regularise that fact.

And at [19]:

The Uniform Civil Procedure Rules and the imperatives of the Civil Procedure Act 2005 need to be applied practically and realistically. The literal application of these provisions should not produce an overly rigid or inflexible response to problems or situations that can be accommodated and solved with a modicum of common sense and reasonable goodwill. Adversary litigation should also not be permitted to disguise or obliterate the fact that the Court and the wider community have an interest in the efficient disposition of litigation.

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