Order 36 - Amendment Flashcards
36.01 General (at any stage - determine RQ, correct, avoid - even if substitutes new party/COA)
(1) Court at any stage can order amendment or give leave for party to amend documents for the purpose of:
● (a) Determining the real question in controversy between the parties to any proceeding;
● (b) Correcting any defect/error in any proceeding;
● (c) Avoiding multiplicity of proceedings.
(2) doc includes (a) OP, (b) claim indorsement on OP; (c) pleading.
(3) can amend despite that its effect is to add or substitute a COA arising after the commencement of the proceeding
(4) Can change name to correct mistake whether or not that amounts to substitution and if you do, (5) then counts as though commenced against that person as amended on day proceeding commenced
(6) Notwithstanding expiry of any relevant limitation period after day proceeding is commenced, Court may make (1) order where it’s satisfied that any other party to proceeding would not by reason of order be prejudiced in conduct of that party’s claim /defence in a way that couldn’t be fairly met by adjournment, costs award or otherwise.
(7) “Any other party” includes person substituted through order made to correct naming mistake. (8) Para (6) shall apply to r 14.03 app.
(9) Para (1) shan’t apply to amendment of judgment/order.
36.02 failure to amend within time limited (as specified or 21 days) order ceases
An order giving party leave to amend shall cease to have effect if the party has not amended document per the order at the expiration of—
(a) time specified in order, (b) otherwise, 21 days from order date
36.03 Amendment of writ or other originating process before service and disallowance of amendment (w leave - return all sealed copies, affirm with affidavit, OP then apply for disallowance in 21 days)
(1) With leave of Prothonotary or of the court, party may amend a writ or other OP if:
● (a) writ/other OP hasn’t been served on D or other party; and
● (b) files an affidavit stating that service of the original writ/OP has not occurred; and
● (c) All sealed copies of the writ/OP are returned to the court.
(2) Each amendment shall be made in such a way to distinguish it from original writ or other OP
(3) On application, within 21 days of receiving the amended writ or originating process, the other party can ask court to (a) disallow the amendment or (b) allow or wholly or in part
36.04 amendment of pleading and disallowance of amendment (once without leave before closing, then any time with court leave/consent - party can apply to disallow in 21 days if without leave)
(1) Can amend pleadings (a) once before the close of pleadings; or (b) at any time with the leave of court or with consent of all parties
(2) Where done w/o leave per (1)(a), other party may within 21 days of service, apply to court to (a) disallow (b) allow in part/in whole.
36.05 how pleading amendment made (filing/serving amended copy; distinguishable amendments)
(1) Unless otherwise ordered, (a) by filing as amended or amending filed copy, and (b) serving amended copy.
(2) Endorse previous copy with statement it’s been amended.
(3) Where either of requirements of (1)(a) is complied with, Prth shall, as case requires, indorse copy of pleading filed in the Court with date it’s amended or copy of pleading as amended with the date it’s filed.
(4) Amendments need to be distinguishable.
36.06 pleading to an amended pleading
(1) Party shall plead to amended pleading within 30 days after its service on that party.
(2) Otherwise they’re taken to rely on their original pleading
36.07 amendment of judgment or order (correct clerical mistake or error in judgment/order arising from slip/omission)
The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.
