AMENDMENT Chp 10

Question 1

How do you apply for leave to amend pleadings outside of time?

Answer 1

r 376 deals with applications to amend after period of limitation for (1) changing or substituting name of party (2) capacity in which a party sues and (3) adding new cause of action (must arise out of same facts which the claim already seeks)

Question 1

When and how can you make an amendments to originating processes and particulars?

Answer 1

r 375 outlines the courts general power to allow amendments

r 377 the amendments of originating proceedings are not permitted without leave of court or registrar unless it (a) concerns a technical matter (b) OG process has not been served and returned to court or (c) with leave of the court….however amendments to pleadings or particutuars do not require leave of the court any time before trial date..r 378

Question 2

What does AON Risk Services v ANU [2009] HCA 2007 talk about re amendments?

Answer 2

This was an appeal…on the third day of the four-week trial of a proceeding that had been on foot for two years, the plaintiff applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant…this was granted.

The HCA held that an application for an adjournment to amend to add new claims which dont arise out of the same factual basis is not to be determined solely by reference to whether the party could be compensated with costs but also by reference to whether it would (1) unfairly prejudice the other party and (2) case management principles (waste of court resources etc).