Gerritt Johannes Van Dyk and Herman Van Dyk Jnr v the Little Tikes Company

The applicants, Gerritt Johannes Van Dyk and Herman Van Dyk Jnr, sought to join The Little Tikes Company as a respondent in proceedings before the Federal Court of Australia. The dispute concerned allegations of misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The applicants sought to add The Little Tikes Company as a respondent to their existing proceedings, which had already been heard and determined by Forno J, with judgment reserved.

The primary legal issue before the Court was whether it had the power to grant leave to amend the application to join The Little Tikes Company as a respondent at such a late stage in the proceedings, after the substantive hearing had concluded and judgment was pending. This involved considering the principles governing joinder of parties and the court's discretion to permit amendments to pleadings, particularly in light of potential prejudice to existing parties and the stage of the proceedings.

Forno J considered the applicants' application for leave to amend and the joinder of The Little Tikes Company. His Honour noted that the applicants had not provided a satisfactory explanation for the delay in seeking to join the new respondent, nor had they demonstrated that the proposed joinder was necessary for the determination of the existing dispute. The Court found that allowing the amendment at this juncture would cause significant prejudice to the existing respondent, as it would necessitate further evidence and potentially a reopening of the hearing, thereby delaying the final resolution of the matter. The Court applied the principles that amendments should not be permitted if they fundamentally alter the nature of the proceedings or cause undue prejudice to the parties, especially when sought after the close of evidence and when judgment is imminent.

Consequently, the Court dismissed the applicants' application for leave to amend the application to join The Little Tikes Company as a respondent.