Amendment

[2-0700] Court’s power of amendment

The court may, at any stage of the proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case, in such manner as the court thinks fit: CPA s 64. Such amendment may have the effect of adding or subtracting a cause of action which has arisen after the commencement of the proceedings or correcting a mistake in the name of a party (s 64(3), (4)), but the section does not apply to the amendment of a judgment, order or certificate: s 64(5).

[2-0710] General principles

Subject to the dictates of justice described in s 58 of the CPA, all necessary amendments shall be made for the purpose of determining the real questions raised by, or otherwise depending upon, the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings: s 64(2).

As a general rule, a party should be entitled to an amendment, even at a late stage in a trial, to permit the real issues in dispute between the parties to be finally resolved: Cropper v Smith (1884) 26 Ch D 700 at 710.

A significant qualification to that rule follows from the case management principles established by the CPA and UCPR.

The common law position is stated by the majority of the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 as follows:

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

However, in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Spigelman CJ, with whom Basten and Campbell JJA agreed, observed that, while State of Queensland v J L Holdings Pty Ltd, above, remained binding authority with respect to applicable common law principles, those principles could be and had been modified by statute both directly and via statutory authority for rules of court: [28].

The Chief Justice said at [29]:

In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms — “must seek” — to give effect to the overriding purpose — to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” — when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.

In respect of defamation proceedings the Chief Justice added at [30]–[31]:

Serving the overriding purpose is reinforced in defamation proceedings by the clear indication of Parliamentary intention with respect to the operation of the Defamation Act 1974, which provides that one of the objects of the Act is:

“3(d) to promote the resolution of proceedings for defamation before the courts in a timely manner and avoid protracted litigation.”

Similarly, the Defamation Act 2005 provides that one of its objects is:

“3(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.”

Thus earlier decisions on amendments, particularly in defamation proceedings, should be treated with care where case management issues are relevant.

By way of caution it should be mentioned that in Dennis v Australian Broadcasting Corporation, above, the court was dealing with an exercise of discretion and that the sought amendment was a fifth further amended statement of claim.

Although an appropriate order for costs (or in the case of an amendment by a defendant resulting in a postponement of the trial, an order for interest if the plaintiff is successful) will generally overcome any prejudice to the other party occasioned by the amendment. This will not always be the case. Such matters may include the strain litigation imposes on personal litigants, anxieties occasioned by raising fresh issues, the raising of false hopes, and the “legitimate expectation that the trial will determine the issues one way or the other”: Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220, quoted in State of Queensland v J L Holdings Pty Ltd at 155.

[2-0720] Amendment of pleadings

A plaintiff may make one amendment to a statement of claim within 28 days after the date on which the statement of claim was filed, but not after a date has been fixed for trial (subject to the power of the court to otherwise order). The defendant may amend his or her defence within 14 days after service of the amended statement of claim (UCPR, r 19.1); but the court may disallow any such amendment: r 19.2.

[2-0730] Grounds for refusal of amendment

An amendment to a pleading will be refused if a party has deliberately framed his case a particular way and the opponent may have conducted his case differently had the new issues been previously raised: Burnham v City of Mordialloc [1956] VLR 239; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. In particular, a late application to add a limitation defence may be refused if the parties have, until that stage, fought the case on other grounds: Ketteman v Hansel Properties Ltd, above.

Other matters which may result in refusal of the amendment include:

  • that the amendment is so fruitless that it would be struck out if it appeared in an original pleading

  • that it will require a further hearing after judgment has been reserved

  • that the application is made mala fides

  • that an order for costs is not sufficient to cure any prejudice to another party to the proceedings: Heath v Goodwin (1986) 8 NSWLR 478, or

  • that the application of case management principles so requires: see Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14]–[21].

[2-0740] Pre-judgment interest

An amendment to the originating process so as to claim pre-judgment interest should normally be allowed: Heath v Goodwin, above.

[2-0750] Amendment to conform with evidence

If there emerges at the conclusion of the evidence facts which, if accepted, establish a cause of action factually different from the cause of action which the plaintiff has sued upon, then such issue must be considered by the tribunal of fact and the pleadings should be amended in order to make the facts alleged and the particulars precisely conform to the evidence which has emerged: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668. In the case of particulars, amendment, although desirable, is not essential: Dare v Pulham (1982) 148 CLR 658 at 664.

[2-0760] Effective date of amendment

As a general rule, an amendment, duly made, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends. Formerly, an originating process (statement of claim or summons) could not be amended so as to add or substitute a new cause of action which did not exist at the date of the commencement of the proceedings: Baldry v Jackson [1976] 2 NSWLR 415 at 419.

Section 64(3) of the CPA now expressly authorises an amendment to an originating process which adds or substitutes a cause of action arising after the commencement of the proceedings and provides that, in such cases, the date of commencement of the proceedings is to be taken to be the date on which amendment is made.

Section 64(4) authorises an amendment if there has been a mistake in the name of a party. In such a case, the amendment takes effect from the date of the original document which it amends: East West Airlines Ltd v Turner (2010) 78 NSWLR 1.

[2-0770] Adding a party

UCPR r 19.2(4) provides that if a person is added as a party under that rule, the date of commencement of proceedings in relation to that party is to be taken to be the date on which the amended document is filed, and that is the relevant date for the purpose of computing the limitation period: Fernance v Nominal Defendant (1989) 17 NSWLR 710.

[2-0780] Limitation periods

Because an amendment is deemed to date from the date of the original document, there was a “settled rule of practice” that an amendment would not be permitted when it prejudiced the rights of the opposite party as existing at the date of such amendment: Weldon v Neal (1887) 19 QBD 394 at 395. In particular, that an amendment would not be allowed to an originating process which set up a cause of action which was statute-barred at the time of the amendment.

This “settled rule of practice” was abrogated by the former SCR Pt 20 r 40 and DCR Pt 17 r 4 which were in similar, though not identical, terms. Those rules have now been replaced by s 65 of the CPA which is as follows:

(1) 

This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) 

At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as:

(a) 

to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) 

to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) 

to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) 

Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) 

This section does not limit the powers of the court under section 64.

(5) 

This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) 

In this section, “originating process”, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

Apart from the fact that the relevant provisions are now contained in the Act rather than in the rules, the effect appears to be the same.

The former provisions were discussed and applied in a number of cases including McGee v Yeomans [1977] 1 NSWLR 273; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; and Seas Sapfor Ltd v Far Eastern Shipping Co (1995) 39 NSWLR 435.

The present provisions were discussed and applied in Greenwood v Papademetri [2007] NSWCA 221. In that case it was held that s 65(2)(b) permits multiple parties to replace a single party, and that a plaintiff may make a mistake in the name of a party, not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name, but also because the plaintiff mistakenly believes that a person who assumes a particular description bears a certain name. See Mitry v Business Australia Capital Finance Pty Ltd (in liq) [2010] NSWCA 360 for a case where a liquidator sued in his own name to recover a debt due to the company, thereby failing to bring the action in the name of the company. This was truly “a mistake in the name of a party” in the sense contemplated by s  65(2)(b): at [43].

Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 makes it clear that the specific provisions of s 65 do not limit the general power conferred by s 64. Under s 64 an amendment may be allowed even if its effect is to add a statute-barred cause of action which does not satisfy the provisions of s 65. See also East West Airlines Ltd v Turner (2010) 78 NSWLR 1.

A particular limitation in Federal legislation, such as s 34 of the Civil Aviation (Carriers’ Liability) Act 1959, which requires proceedings under that Act to be commenced within two years, will prevail over State legislation, such as the CPA s 65 (Air Link Pty Ltd v Paterson (2005) 79 ALJR 1407), so as to prevent an amendment to plead a new cause of action which is statute-barred at the time of the amendment. In that case, however, it was held that the proceedings had been validly commenced under the Civil Aviation (Carriers’ Liability) Act within the time fixed by that Act, although no reference had been made to the Act.

[2-0790] Costs

When leave to amend is granted, it is usually on terms that the party seeking leave pay the costs of the other parties caused by the amendment. This includes costs thrown away by the amendment and costs of any consequential amendments by the other parties.

[2-0800] Sample orders

[2-0810] Amendment of judgments

See section “Setting aside and variation of judgments and orders” at [2-6600].

Legislation

  • CPA ss 56, 57, 58, 64, 65

  • UCPR rr 19.1–19.6