Case: Abela v Giew (1964) 81 WN (Pt 1) NSW 344
Outcome: cited
In relation to the further amendment of the amended statement of claim, the applicant submitted in summary as follows: &#8226; It is important that the pleadings properly reflect the real questions raised by the proceedings, and that the Court permit the parties to make necessary amendments unless the proposed amendment is obviously futile or would cause substantial injustice for which there cannot be compensation: Abela v Giew (1964) 81 WN (Pt 1) NSW 344 at 345. &#8226; As pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 , justice is the paramount consideration in determining an application to amend pleadings. &#8226; Following directions made by the Court, samples of Termiglass were obtained from the respondent and sent to the applicant's expert, Dr Holt. The applicant suspected that the samples supplied did not accurately represent the product that was being installed. The applicant obtained samples of the respondent's product from other sources. Some of these samples, when tested, were found to fail as an effective termite barrier. &#8226; The amendments proposed to the amended statement of claim arise from matters which have come to the attention of the applicant after the commencement of the proceedings, the obtaining of samples, and issues arising from the variability of the samples. The variability in the sampling and therefore the effectiveness on such an inconsistent product is a matter that is now an issue in the proceeding, given the evidence that has been obtained to date and is still being obtained, including that there is a real difference between the samples provided by the respondent pursuant to the Court-approved regime and the evidence obtained of other examples of termiglass that have been installed. &#8226; The amended pleading also relies upon s 51A Trade Practices Act given the representations relate to future matters, namely the quality of the Termiglass to be installed. &#8226; Given that the product has been installed in over 30,000 sites in south-east Queensland there is clearly substantial public interest in ensuring that issues in these proceedings are properly litigated. &#8226; The proceedings are not old, with the first directions being made on 15 February 2008. &#8226; The proposed amendments are already encompassed by the amended statement of claim in its current form, however out of an abundance of caution and to prevent time wasted at the trial arising from possible dispute, the applicant applies to have its pleadings amended. &#8226; There is no prejudice to the respondent by allowing the amendment. &#8226; The applicant accepts that it will bear the respondent's costs of vacation of the trial dates, although Mr Peden submitted that, if the applicant is successful, it should receive its costs of the hearing of 4 June 2008. 23 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."