National Australia Bank Limited v Kim Francis Hunter (No 2)

National Australia Bank Limited sued Kim Francis Hunter in the Federal Court, seeking relief related to financial matters. Hunter, in turn, sought leave to amend his cross-claim by adding causes of action for breaches of the Code of Banking Practice and misleading or deceptive conduct. Only the amendment to include misleading and deceptive conduct was contested by the bank. The central issue before the court was whether Hunter would be prejudiced by the contested amendment, particularly given that the evidence had already closed after a three-day hearing and extensive cross-examination, including some conducted via video link.

The court examined the principles governing amendments to pleadings, noting that while further cross-examination could generally cure any prejudice during the trial, this was not feasible here as the evidence had already concluded. The court emphasised that there would be no opportunity to reopen the trial at this stage. After considering the matter thoroughly, the court decided that the contested amendment should not be allowed, as permitting it would be too late and would unduly prejudice the bank. This conclusion was based on the finality of the evidence and the impracticality of reopening the trial to address any potential prejudice.

The Federal Court held that leave to make the contested amendments to the pleadings should be refused. This decision was grounded in the finality of the evidence presented and the impossibility of reopening the trial to address any prejudice that might result from the amendment. Consequently, the court maintained the status quo of the pleadings, ensuring that the trial proceeded without the inclusion of the contested misleading and deceptive conduct cause of action.