Kanthal (Australia) Pty Ltd v Minister for Industry, Technology & Commerce [1987] FCA 714

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JUDGMENT No, /!4 7Q_] NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G259 of 1986 ) )

GENERAL DIVISION

BETWEEN: KANTHAL (AUSTRALIA) PTY LIMITED Applicant AND: MINISTER FOR INDUSTRY

TECHNOLOGY AND COMMERCE

Respondent

CORAM: Davies J. DATE: 4 November 1987 ro! PLACE: Sydney .

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REASONS (EX TEMPORE )

This 1s an application to amend the statement of claim. The application is made at a late stage on the third day of the hearing and at a time when counsel for the

respondent is well into his address.

Mr B.T. Sully, Q.C., senior counsel for the respondent, has submitted that the amendments should not be made at this stage. He has submitted that the exercise of the fullness of the power should be made only in exceptional circumstances and that the normal principle should be that all

necessary amendments should be made prior to trial. That 1s

2. not, however, the principle to be applied, as I understand it

to have been laid down both in decisions of other courts and

in this court.

The principle 1s stated by Bowen LJ. in Cropper v. Smith, (1884) 26 Ch.D.700 at pp.710-711. I do not have that report immediately before me but the substance of it 1s that amendments should be made whenever to do so would achieve justice between the parties. I understand the principle to be that pleadings are intended to enhance the achievement of justice, not to hinder it and unless good reason appears to the contrary amendments should be made to raise the real

issues between the parties.

It is to be noted that Order 13 Rule 2 of the Federal

Court Rules gives a positive direction. I read sub-rule (2):-

"(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings."