Order 13 Rule 2 of the Federal Court Rules provides:
"(l) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceedlng be amended, or that any party have leave to amend any document in the proceedlng, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determlnlng the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
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In the present matter, the respondents seek leave to file an amended statement of defence of which they first gave notice about two weeks ago. The matter was on 30 June 1989 fixed for hearing in the week commencing today. The amendments, if allowed, certainly require the refixing of the matter a considerable time in the future as they would enlarge significantly the issues to be determined. Even without amendment, the matter appears now likely to occupy more time than the week allotted to it. However, if the question of amendment had never been raised it may have been possible to find the relatively small amount of additional time required in the fairly near future.
Senior counsel for the respondents does not proffer any analysis of the factors which led to the admissions involved in the previous pleading and to the failure to plead matters which it is now desired to raise. However, it must be acknowledged that delays on the part of the applicants (however justified) produced a situation in which the proceedings were seen as urgent. The statement of claim, dealing with complex issues, was filed in court on 28 June 1989; the court on 30 June 1989 set the
dates for hearing; and the statement of defence was filed on 6
July 1989. I think the speed with which the respondents'
advisers must have attempted to assimilate the issues puts the case in a different category from those cases where a dilatory defendant at the last moment attempts to raise issues he should have raised long before. In the present case, both parties have been far from dilatory.
The amendments are fundamental. So long as the court can provide against prejudice which may arise for the applicants,
I think it would be a wrong exercise of discretion and a
repudiation of the principles enshrined in Order 13 Rule 2 to force the respondents to fight this case on issues other than those which they now wish to put forward as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Thompson v Hodder [1989] FCA 493
Case
[1989] FCA 493
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Thompson v Hodder involved Nelson Tobacco Co Pty Limited and Nelson Trading (Qld) Pty Limited as applicants, and Rothmans of Pall Mall (Australia) Limited and John David Devine as respondents. The applicants sought leave to amend their documents, specifically their statement of defence, to include additional issues that they had initially omitted. The respondents opposed the application on the grounds of potential prejudice and delay to the proceedings. The matter was fixed for hearing on 30 June 1989, and the applicants had filed their statement of claim on 28 June 1989, while the statement of defence was filed on 6 July 1989.
The court was required to decide whether the respondents should be granted leave to amend their statement of defence, despite the applicants' concerns about prejudice and delay. The applicants argued that the respondents' late amendments would necessitate a significant extension of the hearing dates, which could result in additional costs and complications. The respondents, on the other hand, contended that the amendments were necessary to present their true defences and that the delay was not due to any dilatory conduct on their part. The court had to balance the principles of Order 13 Rule 2 of the Federal Court Rules, which allows for amendments to correct errors or determine real questions, against the potential prejudice to the applicants if the amendments were allowed.
The court concluded that the amendments were fundamental and that it would be inappropriate to force the respondents to proceed with a defence that did not accurately reflect their position. However, the court also recognised the need to protect the applicants from any unfair prejudice resulting from the respondents' late amendments. As a result, the court granted the respondents leave to amend their statement of defence, subject to certain conditions. The respondents were required to pay any costs incurred due to the amendment, as well as the costs of the motion for amendment. The court also made specific orders regarding the interlocutory regime established on 29 June 1989, releasing the applicants from certain undertakings and varying others to reflect the amendment. The hearing date was subsequently fixed for 5 March 1990.
The final orders of the court allowed the respondents to amend their statement of defence under the specified conditions, ensuring that both parties' interests were protected while maintaining the integrity of the legal process.