Amendments

Question 1

Why would the court allow a document to be amended?

Answer 1

• The court may give leave to amend any document (originating process, statement of claim, pleading) for the general purpose of determining the real issues, correcting any defect or error in any proceeding or avoiding multiplicity of proceedings.

Question 2

What is the time limit for an amendmnet?

Answer 2

• An order giving leave to amend a document shall cease to have effect if the party has not amended the document in accordance with the expiration of the time limited by the order, or if not time was limited, 21 days from the date of the order.

Question 3

When will the court allow an amendment after the expiry of the time limit?

Answer 3

• The court can order amendment even if the relevant limitation period has expired, where it is satisfied that any other party to the proceeding will not by any reason of the order be prejudiced in the conduct of that party’s claim / defence in a way that could not be fairly met by adjournment or an award of costs.

Question 4

What is the slip rule?

Answer 4

• The court at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or mistake.

Question 5

How can a writ or OM be amended?

Answer 5

• A party may amend a writ or other originating process with leave of prothonotary or court if
  1. the writ or originating process has not been served on D;
  2. the party seeking to amend files an affidavit stating that the service of original writ / originating process was not affected; and
  3. all sealed copies of the writ/ originating process are returned to the court.

Question 6

How can pleadings be amended?

Answer 6

• Amendment of pleadings is permitted.
• A party may amend once before the close of pleadings without leave but court may, on application, disallow the amendment – r36.04(1)(a). 2
• Closing of pleadings is 30 days after the filing of the last pleading – r14.08
• After that, amendment is possible with the consent of all parties or by leave of court – r36.04
• A party will have 30 days to plead an amended pleading – r36.06

Question 7

What should the consider in applications to amend pleadings?

Answer 7

The court will have regard to a number of factors when deciding whether leave should be granted to replead – AON Risk Services v ANU (2009)
a. Whether substantial delay would be caused by the amendment;
b. The extent of wasted costs that would be incurred;
c. Whether there is an irreparable element of unfair prejudice resulting from the amendment which costs cannot remedy;
d. Concerns of case management arising from the stage in the proceeding when the amendment is sought – ie whether there will be insufficiencies arising from vacation or adjournment of trial;
e. Whether the grant of the amendment would lessen the public confidence in the judicial system;
f. Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.