Case: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035
Outcome: applied
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining 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. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths." 27 First, as his Honour pointed out in SPI Spirits , such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided and to avoid a multiplicity of proceedings. It is regrettable that the applicant has sought to further amend its statement of claim only a few weeks out from trial, however this does not derogate from the principle that it is in the interests of justice that the real questions in controversy be decided at trial. I note further that the applicant has a new Counsel who has brought a "fresh legal mind" to these proceedings, which appears to be at least an explanation, if not a justification, for the delay in seeking to amend the pleadings at this late stage. 28 Second, while trial is listed to commence two weeks hence, I note the observations of Edmonds J as to amendments sought to be filed by the applicant at a time when there remains the opportunity for the respondent to file a proper defence. Even leaving aside for the moment the issue of whether the trial dates should be vacated, the submission of the respondent that the trial dates should remain unaltered notwithstanding any order as to amendment of the pleadings indicates that, from the respondent's perspective: &#8226; there remains sufficient time for it to file a proper defence in this matter; and &#8226; it would not be prejudiced in respect of its own pleadings by the further amendment of the amended statement of claim. 29 Third, it is not submitted by the respondent that the proposed amendments are so obviously futile that they would be struck out if they had appeared in the original pleading. 30 Fourth, I am not satisfied that any prejudice to the respondent arising from amendment to the pleadings cannot be compensated by costs and the undertaking proffered by the applicant. As clearly emerged from Mr Looney's submissions at the hearing of 4 June 2008, the real concern of the respondent arising from amendment to the pleadings is the adjournment of the trial and prolonging of the litigation. I turn to that issue now.