Unilever Australia Ltd v Revlon Australia Pty Ltd (No 7)

Unilever Australia Ltd sought leave to amend its particulars in the Federal Court of Australia in an action brought against Revlon Australia Pty Ltd concerning claims of misleading conduct in advertising Mitchum Clinical products. The core dispute was whether the Mitchum Clinical products contained hydrogen peroxide, and if so, in what quantity. The application for leave to amend the particulars was contentious, with Revlon opposing it on the grounds of potential prejudice and delay. The court needed to balance the considerations of fairness, the potential for prejudice to the respondent, and the overall pursuit of justice in the matter.

The legal issues before the court included whether the amendment would cause undue delay and prejudice to the respondent, and if the amendment was necessary to achieve justice between the parties. The court also considered the relevance of good faith on the part of the applicant and the potential impact of the amendment on the proceedings. The court examined the evidence presented by both parties and the extent to which the amendment was necessary to address the central issues of the case.

The court found that the amendment was not unduly prejudicial to Revlon and could be accommodated with reasonable time for Revlon to prepare further evidence. The court accepted that the presence or absence of hydrogen peroxide in Mitchum Clinical was a matter that Revlon should have been aware of and that the amendment did not stem from any lack of good faith. The court also noted that the amendment was not materially delayed and that the overall pursuit of justice would benefit from hearing the expert evidence. The court concluded that the potential prejudice could be sufficiently mitigated by allowing Revlon a reasonable opportunity to respond to the amended particulars.

The court granted leave to amend the particulars, ordered the applicant to pay the costs thrown away by the amendment, and directed the respondent to pay the costs of the hearing of the application. The detailed terms of the amendment were set out in the annexure to the affidavit of Andrew Salgo sworn on 19 February 2015.