Microsoft Corporation and Ors v CPL Notting Hill Pty Ltd and Ors (No.5)

In *Microsoft Corporation and Ors v CPL Notting Hill Pty Ltd and Ors (No.5)*, the applicants, Microsoft Corporation and others, sought to amend their pleadings in proceedings against CPL Notting Hill Pty Ltd and others. The matter came before Judge Baird of the Federal Court of Australia following a remittal from the Full Court. The core of the dispute revolved around the nature of the remittal and its implications for the applicants' ability to amend their originating process and statement of claim.

The primary legal issue before the Court was whether the remittal constituted a re-hearing and continuation of the first trial under section 28(1)(c) of the *Federal Court of Australia Act 1976* (Cth), or whether it was to be treated as a new trial under section 28(1)(f) of the Act. This distinction was critical because it determined the scope of amendments the applicants could seek to their pleadings. The applicants sought two distinct amendments: the first, to correct an alleged inadvertent omission in their application, and the second, which required amendments to both the application and the claim.

Judge Baird reasoned that the remittal was a continuation of the original proceedings, rather than a fresh trial. Applying this interpretation, the Court allowed the first amendment, finding it to be a permissible correction of an inadvertent omission within the ongoing proceedings. However, the second amendment, which sought more substantial changes to both the application and the claim, was refused. This refusal was based on the understanding that such significant alterations were not appropriate in a re-hearing and continuation of the trial, as opposed to a completely new trial where broader amendments might be considered.