Pleadings are drafted before the facts are fully known. Order 8 Division 4 of the National Court Rules 1983 is generous about correcting them.
Rule 50
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms, that any document in the proceedings be amended, or that any party have leave to amend any document, in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party, sub-rule (1) applies to the person intended to be made a party as if he were a party.
(4) This Rule does not apply to the amendment of a minute of a judgement or order.
The word is “shall”. The Rules favour amendments that let the Court decide the real dispute. The three stated purposes — determining the real questions, correcting defects, avoiding multiplicity — are the arguments to make on any application.
Note also that the power extends to any document in the proceedings, not only pleadings. Minutes of judgments and orders are dealt with separately by Rule 59, the slip rule.
Rule 51 — the free amendment
(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.
(2) Where a plaintiff amends the statement of claim — (a) if the defendant has filed a defence, he may amend his defence; and (b) the time for the defence or amended defence is the time otherwise fixed, or 14 days after service of a notice or document under Rule 58, whichever expires later.
(3) The same applies where a defendant amends the defence and the plaintiff has filed a reply.
(4) These rights are in addition to the right to amend under sub-rule (1).
Rule 23 fixes the close of pleadings at the expiry of the last time for filing a defence, reply or other pleading. After that, every amendment needs leave.
So review your pleading before that date. It is the only free amendment you get, and sub-rule (1) allows it once only.
Sub-rule (4) is worth noting: the consequential right to amend in answer under (2)(a) or (3)(a) does not use up your own free amendment under (1).
Where a party amends and the opposite party does not amend in response within the time allowed, the existing pleading has effect as a pleading in answer to the amended pleading, and Rule 22(2)(a) does not apply — but if no further pleading is filed, there is an implied joinder of issue at the close of pleadings.
So you are not taken to admit the amendments by inaction. Still, where an amendment raises something new that you must plead specifically under Rule 14, amend.
Rule 52 — challenging a free amendment
(1) Where a party amends under Rule 51(1), the Court, on application by an opposite party, may, on terms, disallow the amendment.
(2) Notice of the motion shall be filed and served within 14 days after service of the notice or document under Rule 58.
(3) Where the Court is satisfied that, had leave been sought under Rule 50(1) on the date the amendment was made, leave would not have been given for the whole or part of it, the Court shall disallow the amendment or that part.
Sub-rule (3) is unusual: the Court asks itself whether it would have granted leave. If not, disallowance is mandatory — “shall disallow”.
A party served with an amended pleading they regard as improper must therefore move within 14 days. After that the amendment stands.
Rules 55 to 58
| Rule | Requirement |
|---|---|
| 55 | Where the Court orders or gives leave, it may give such directions as it thinks fit concerning the mode of amendment and consequential service, and those directions override Rules 56 to 58 |
| 56 — simple amendments | Where the amendments are not so numerous or lengthy or otherwise of such nature as to render the document difficult or inconvenient to read: file a notice in Form 23 specifying them, and write the alterations in the filed document |
| 56(2) | The amended document must be marked with the date of the amendment and either the date of the order or a reference to the Rule authorising it |
| 57 — fresh document | Otherwise, amendments are made by filing a fresh document, amended, and bearing the Rule 56(2) statement |
| 58 — service | On the day the amendment is made, serve on everyone previously served: the Form 23 notice (r 56) or the fresh document (r 57) |
Service under Rule 58 starts the clock for the other side’s consequential amendment (r 51(2)(b)) and for any disallowance application (r 52(2)). Do it on the day, and keep proof.
The application, and Rule 54
Apply by notice of motion citing Order 8 Rule 50, with an affidavit exhibiting the proposed amended pleading with the amendments marked, and explaining why the amendment is necessary and why it was not made earlier.
Rule 54 — subject to Order 1 Rule 15, if the party does not amend within the period specified in the order, or within 14 days after the order where none is specified, the order shall cease to have effect.
An order giving leave to amend is not open-ended. Fourteen days is the default. A party who obtains leave and then does nothing must go back and ask again.
Amendments are ordinarily granted on terms as to costs — the amending party pays the costs thrown away. Where the amendment would prejudice the other side in a way costs cannot cure, or would lose a trial date, leave may be refused.
On amendments after a limitation period has expired — a distinct question governed by Rule 53 — see amending out of time.
Sources
- National Court Rules 1983 — O 1 r 15; O 8 rr 14, 22, 23, 50–59; Form 23
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.