Topic 9: Amendment Flashcards
Topic 9: Amendment
Amendments
Amendment Generally: Originating Processes
If its a technical matter OR not served, the option is the leave of the register or the court.
If it is not technical and it IS served, It requires the courts leave only.
Technical: administrative matter
There is no as of right.
Amendment Generally: Any other document
If it is BEFORE filing a request for trial, you can amend without the leave of the court.
If it is AFTER filing for request for trial, it requires the leave of the court.
Power to Amend
You can make an amendment to any document at any time with the leave of the court.
Registrars do not have a power to make a substantive change to a document, only to make an administrative change e.g. errors to the form, not to the legal requirements.
Amendment after limitation period
An amendment after the limitation period can be done provided it is the same transaction/event that you have already pleaded in the proceedings e.g. nothing new.
If you sued but incorrectly labeled the other party, you can correct that error but not change who the party is.
Disallowance of amendment
Where the other party has done something you do not think is right, then you can make an application to the court to disallow the amendment made.
Failure to amend after order
If you have an order of the court to make an amendment, you may have a time frame of 14 days to make it. Outside that time line, you do not have the right to make the amend.
Procedure for amending
All amendments must be distinguished to be identifiable from the remainder of the document.
The amendment must have a notation on it showing the date of the amendment and either if it was made by leave of the court or if not with leave of the court then the rule number.
If it is something you are adding, then you underline it. If you are removing something, you put lines through them. State on the document that is is an amended document.
Amendment may be in writing.
Where the amendment will be inconvenient or makes the document hard to read, then the party making the amendment must file a revised document incorporating that amendment.
Who is required to make an amendment?
If the court orders an amendment be made to a document, the court may order a party, a registrar, judge’s associate or other appropriate person to make the amendment.
Serving amendments
Must be served on all parties as soon as practicable.
However, the court may dispense with the service of an amendment or give directions about service.
Consequences of amendment: Pleading to an amendment
Where you amend your pleading and add something new, then the other party may want to amend their own pleading in response to that amendment.
If its a defence, you get 28 days, if a reply, its 14 days.
Consequences of amendment: Costs
Costs are to be paid by the party making the amendment.
When amendment takes effect
The amendment takes effect on and from the date the document was amended.
Mistakes in orders or certificates
If there is a clerical mistake on an order or certificate e.g. misspelt someones name, wrong figures, then they can fix that.
Slip rule: where its a mistake or error resulted from an accidental slip
