On 23 March 2010, in Hore v Parklands Albury Wodonga Limited  NSWSC 207, the NSW Supreme Court considered whether or not an application for leave to amend a Statement of Claim would be futile in circumstances where it was asserted that the proposed amendments disclosed no reasonable cause of action.
The plaintiff injured his head on a riverbed when he swung from a rope attached to a tree in a reserve on the Victorian side of the Murray River. The plaintiff alleged that the reserve was maintained by the defendant who was therefore liable for his injuries. A live issue was whether the tree in question grew in New S outh Wales or Victoria, or partly in each State.
The plaintiff sought to amend his Statement of Claim which originally included a plea that the defendant “had the care, control and management of a recreational reserve known as the Water Works River Reserve...situated within the Wodonga Regional P ark”. The plaintiff sought to amend the Statement of Claim to plead that the defendant “was responsible for the management and maintenance of so much of the southern bank of the river adjacent to the reserve which was within New S outh Wales pursuant to an agreement with the Department of Natural Resources and Environment (NSW)”.
The defendant opposed the application on the ground that it would be futile because no reasonable cause of action was disclosed. Essentially, the defendant emphasised that no agreement, as asserted by the proposed amended pleadings, existed. The plaintiff’s solicitors had requested production of the purported agreement from the defendant, who had responded that they would seek instructions with respect to any such agreement. The plaintiff then wrote to the Council of the City of Wodonga (Council) foreshadowing legal proceedings against it. In ensuing correspondence, the Council stated that the responsible authority for maintaining the reserve was the defendant and not the Council. The plaintiff again sought production from the defendant of the purported agreement and the defendant responded to the effect that even if such an agreement existed, it was not relevant to any pleaded issue.
The defendant argued that because no agreement could be produced to evidence that an agreement existed, the pleadings failed to disclose a reasonable cause of action.
In examining whether or not there was a reasonable cause of action, the Court considered McGuirk v The University of New South Wales  NSWSC 1424 where it was held that: “a very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed, and this power should be sparingly employed”.
Despite the defendant asserting that there was no agreement, the Court held that it could not be said that there was no evidence at all about the existence of such an agreement. Accordingly, the Court granted leave to the plaintiff to amend the Statement of Claim. The Court held that even if the plaintiff’s prospects of success were still slim even after amending the S tatement of Claim, this reason was insufficient to strike out the claim.
The decision demonstrates that an applicant needs to have a high degree of certainty that there is no reasonable cause of action before asserting that a party should not be permitted to plead their case. n