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 their true defences. At the same time, the court should be vigilant to ensure that the applicants are not unfairly prejudiced as a consequence of the way in which the respondents have gone about the pleading of their case.
I have concluded that the respondents should have leave to amend their statement of defence in the manner proposed, and thereby to withdraw the admissions made in the statement of defence as originally filed, but subject to their submission to the following terms:
1.
Respondents should pay any costs thrown away as a consequence of the amendment.
The respondents should pay the costs of the motion for
amendment. ( I do not accept that Public Trustee v. Nash
38 WN (NSW) 142 at 143 applles to what is here proposed, which involves the dislocation of a number of complicated interlocutory arrangements.)
The interlocutory regime established on 29 June 1989 must continue subject only to the variations made by these orders and any variation pursuant to the liberty to apply which I shall grant; the variations made by these orders are the following:
a.
The applicants are to be released from the
undertaking contained in paragraph six of the short minutes of 29 June 1989 so far as that undertaking relates to service allowances paid to them by the first respondent on and after 25 September 1989, but subject to the applicants giving the usual undertaking as to damages in respect of the interlocutory relief embodied in those short minutes and in these orders as from 25 September 1989.
b.
The undertaking of the applicants contained in
paragraph seven (as amended pursuant to an order subsequently made by me increasing the sum of $600,000.00 to $900,000.00) of the said short minutes may be varied to correspond with the variation of the undertaking in clause 6 effected by these orders. As a consequence, the last
sentence of paragraph seven may be deleted subject
to the applicants, in the event of any appeal,
giving a further undertaking as to damages.
c. Liberty to apply.
I make orders accordingly. I take it the undertaking as to damages is given and the undertaking in paragraph seven is given in the amended form. [The undertakings were given by Mr Sweeney Q . C . , and the hearing date was fixed for 5 March 1990.1
I certify that this and the
preceding four ( 4 ) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Dated: 28 August 1989
Counsel for the Applicants:
Mr C. Sweeney Q . C . with Mr C . C . Hodgekiss and Hr I. Harvey
Solicitors for the Applicants:
Baker & McRenzie
Counsel for the Respondents:
Mr D.A.
Staff Q . C . with
MS H.J. Beazley
Solicitors for the Respondents:
Clayton Utz
Date of hearing:
28 August 1989
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.