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7 Amendment: r 19 UCPR, s 64 CPA 7 Amendment - read Chapter 9 [9.10 - 9.130]
Boniface and Legg (2010) 39(2) Common Law World Review 157, 176-178. Intro
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) a. Because there is a discretion, must look at overriding purpose in making the decision: s 56 CPA; Rayscan; Dennis v ABC b. 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 6th 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
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