#8510 - Amendments - Litigation - Civil Procedure

Amendment – read Chapter 9 [9.10 – 9.130]

Boniface and Legg (2010) 39(2) Common Law World Review 157, 176-178.

1. Figure out what you want to amend.

2. Amending statement of claim, can amend within 28 days of filing: r 19.1

3. Amending to add or remove party from proceedings: If amending to include or remove a party then must be within 28 days of filing document – and solicitor acting for person to be added must certify on the amended document that they are acting for the person to be added and that the person to be added consents to being added or removed as a plaintiff: r 19.2

If outside 28 day period – see CPA s64

4. If outside 28 day period then use s 64 CPA: At any stage of proceedings the court may order (a) that any document in proceedings be amended; or (b) that leave be granted to a party to amend any document in the proceedings: s 64 CPA. Court can make amendment of own initiative or upon application of party who seeks leave.

5. Exercising the discretion under s 64(1)

   1. Because there is a discretion, must look at overriding purpose in making the decision: s 56 CPA; Rayscan; Dennis v ABC

   2. Eg in Dennis – the overriding purpose constitutes a significant qualification on the power to grant leave to amend a pleading under s 64 CPA. In Dennis applicant was refused leave to amend on 6^th pleading. Court is required to consider the degree and type of injustice each party would suffer as a result of the order sought and to do so in the context of other factors such as elimination of delay and desire to ensure that disproportionate costs are not incurred in proceedings.

6. Rationale of s 64: The power of amendment is to ensure that the court determines the real questions raised by or otherwise depending on the proceedings and includes the prupose of avoiding multiplicity of proceedings: s 64(2) CPA

7. Scope of changes that can be made under amendment s 64(3): Pursuant to subs (3) an amendment may be made notwithstanding that it has the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings: Hill v Reglon – however then the date of commencement of proceedings in relation to that cause of action is subject to s 65 taken to be the date on which the amendment is made.

8. When will date of amendment be? Default position: Amendment takes effect from date of amendment: s 64(3).

Note that Court can deviate from rules

9. Court can dispense with rules in particular cases: r 14 UCPR Court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

   1. See Jeffrey v katouskas

   2. This considers s 14 and makes observation that it is about dispensing with requirement imposed upon by one of the parties

10. Note court’s power to give directions as it thinks fit: S 61(1) – the court may by order give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

If outside 28 day period, and after SOL has expired, use CPA s 65

11. S 65 CPA applies to proceedings commenced before SOL expired, but after SOL expired there arose a need to amend.

12. Under s 65(2), plaintiff may with leave of court under s 64(1)(b) amend originating process so as to enable P to:

    1. Change capacity in which P sues

    2. Correct mistake in name of party go to notes

    3. Add or substitute a new cause of action

13. And then unless court orders otherwise amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced: notwithstanding anything said in the Limitations Act: s 65(3)

14. Exam format summary: consider s 65 – then s 64(1)(b) – then overriding purpose

15. CL origins of this: the ‘relation back’ principle which operates to rescue retrospectively a plaintiff who by an original pleading alleged a cause of action beyond the court’s jurisdiction: Airlink

Rayscan Management v Siv Nandan Moodliar

• Overriding purpose is lodestar by which Commercial List operates

• Important role in deciding whether to grant amendments

• Note Dennis v ABC [2008] NSWCA 47

“that duty (overriding purpose) constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of CPA

Hill v Reglon Limited

S 64(3) provides power for an amendment to be ordered even though it would have effect of adding/substituting a cause of action that had arisen after commencement of the proceedings.

• The power of amendment is to ensure that the court determines the real questions raised by or otherwise depending on the proceedings and includes the prupose of avoiding multiplicity of proceedings: subs (2). Pursuant to subs (3) an amendment may be made notwithstanding that it has the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings.

Facts:

• Company that hired scaffolding that goes into making buildings

• What they’d done was they’d hired it to one entity and thought they’d done something that would have given rise to conversion

• They commenced proceedings and pleaded that

• But as it turned out prior to commencement of proceedings, conversion hadn’t happened yet, but did happen after proceedings.

...