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
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 South 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 South Wales pursuant
to an agreement with the Department of Natural Resources and
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
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
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