SCR o 36 - Amendment

Question 1

36.01 General (amendment)

Answer 1

For the purpose of—

• determining the REAL QUESTION in controversy between the parties; or
• correcting any DEFECT OR ERROR in any proceeding; or
• AVOIDING MULTIPLICITY of proceedings—

the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

In this Order ‘document’ includes originating process; an indorsement of claim on originating process; and a pleading.
An indorsement of claim or pleading may be amended to add or substitute a cause of action arising after commencement of the proceeding.

Question 2

36.02 Failure to amend within time limited

Answer 2

An ORDER giving a party leave to amend a document shall CEASE TO HAVE EFFECT if the party has not amended the document in accordance with the order at the expiration of:

• the time limited by the order; OR
• if no time was limited, 21 days from the date of the order.

Question 3

36.03 Amendment of WRIT or other OP before service and disallowance of amendment

Answer 3

With Court’s leave, party may amend a writ or other OP if:

• the writ or other OP has NOT BEEN SERVED on the defendant or other party; AND
• the party seeking to amend files an AFFIDAVIT stating that service of the original writ (or other OP) has not occurred; AND
• all SEALED COPIES of the writ or other OP (and other docs filed) are RETURNED TO COURT.

Each amended writ / OP shall be made in such a way as to distinguish the amendment from the original writ / OP (i.e. state ‘amended’)

Where a party amends a writ or other OP, the Court may, ON APPLICATION by any other party made within 21 days after service on that party, DISALLOW the amendment; or allow it either wholly or in part.

Question 4

36.04 Amendment of pleading and disallowance of amendment

Answer 4

A party may amend any pleading served by that party—

• once before the close of pleadings; or
• at any time by leave of the Court or with the consent of all other parties.

Where a party amends a pleading before close of pleadings the Court may, on application by any other party within 21 days after service of the amended pleading—

• disallow the amendment; or
• allow it either wholly or in part.

Question 5

36.05 How pleading amendment made

Answer 5

An amendment to a pleading shall be made by (unless the Court otherwise orders) —

• amending the copy of the pleading filed in the Court or FILING a copy of that pleading as amended; AND
• SERVING a copy of the amended pleading on all parties.

Each amendment to a pleading shall be made in such a way as to distinguish the amendment from the original pleading (and any previous amendment) (i.e. ‘2nd amended’ etc).

Question 6

36.06 Pleading to an amended pleading

Answer 6

A party shall plead to an amended pleading WITHIN 30 DAYS after it is served on that party.

If a party has already pleaded to the previous version, the party shall be taken to rely on their existing pleading unless they plead to the amended version within the specified time.

Question 7

36.07 Amendment of judgment or order

Answer 7

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.