Thompson v Hodder

In the Federal Court of Australia, the case of Thompson v Hodder involved the applicants, Nelson Tobacco Co Pty Limited and Nelson Trading (Qld) Pty Limited, who brought proceedings against the respondents, Rothmans of Pall Mall Australia Limited and John David Devine. The nature of the dispute was related to the respondents seeking leave to file an amended statement of defence, which would significantly alter the issues to be determined in the case. The matter was originally scheduled for hearing on 30 June 1989, but the proposed amendments necessitated a refixing of the matter to a later date.

The legal issue before the court was whether the respondents should be granted leave to amend their statement of defence under Order 13 Rule 2 of the Federal Court Rules. This rule allows the court to order amendments to pleadings to determine the real questions raised by the proceeding, correct defects or errors, or avoid multiplicity of proceedings. The court needed to balance the principles of allowing amendments to ensure the real issues are determined against the potential prejudice to the applicants if the amendments were to be allowed at a late stage in the proceedings.

The court concluded that the respondents should be granted leave to amend their statement of defence, subject to certain conditions. The court recognised that the speed with which the respondents' advisers had to assimilate the issues and the relatively short time frame for filing the statement of defence placed the case in a different category from those where a defendant attempts to raise new issues at the last moment. The court determined that the proposed amendments were fundamental and necessary to ensure the respondents could present their true defences. However, to mitigate any potential prejudice to the applicants, the court ordered that the respondents pay any costs thrown away as a consequence of 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 correspond with the amendment of the statement of defence.

In summary, the court granted the respondents leave to amend their statement of defence, subject to conditions that aimed to prevent unfairness to the applicants. The hearing date was subsequently fixed for 5 March 1990, and the undertakings were given by Mr Sweeney QC on behalf of the applicants.