\ qa 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 . ty 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." Of that provision Muirhead J. said 1n Caruso Australia Pty Limited v. Portec Australia Pty Limited, No. WA G29 of 1983, delivered on 13 February 1986:- "The powers of this Court to amend pursuant to Order 13 rule 2 are more than wide, they tend to be remedial ..." His Honour then cited sub-rule (2) and continued:- "Consideration of the authorities indicates that an amendment should only be refused where bad faith is demonstrated or where the consequential injury or prejudice to the other party is incapable of remedy. 3. And this reasoning applies to amendments sought during trial or on the eve of trial." In the light of this principle, it appears to me that most of the amendments sought should be made. The amendments sought by the new paragraphs 7A, 8A and 8B raise issues which go to the heart of the dispute between the parties, that 1s to say, to the question whether or not there was dumping, as to what was the normal price of goods and as to what adjustments should be made to the price to determine a normal price appropriate to the applicant's goods. It has not been put by Mr Sully that, if the amendments were made, there would be other evidence which could be called on the issue or that the respondent would be caught by surprise and unduly prejudiced. It seems to me that these paragraphs raise matters going to the issues which have been discussed and they go to the heart of the dispute. I recognize that the applicant, who now alleges that the respondent failed to consider the matters raised, also itself apparently failed to give adequate attention to this matter, 1f 1t is a matter to which adequate attention should be given. Reliance upon this ground 1s made at a very late stage and that is a matter to be taken into account in determining whether there was any error of law in the respondent's decision. But it 1s not, I think, a reason why an amendment should not now be made. It seems to me to be something that ought to be considered with the other issues that have been 4. raised in the statement of claim. The amendment proposed by paragraph 12A does, however, raise a new issue, that is to say, an issue of natural justice. The paragraph reads:- "12A. The respondent breached the rules of natural justice in connexion with his consideration of the making of directions as referred to in paragraph 12 above, by means of his officers failing to give the applicant or Gunnebo A.B. the manufacturer of the goods, the opportunity to permit or proffer verification of any matters of fact concerning the circumstances referred to in paragraph 12 above upon which his officers may not have been satisfied only because of an alleged lack of verification." This is different in kind from any allegation in the statement of claim. It seems to me that that issue should not be raised at this stage in the proceedings. The parties have not turned their minds to a natural justice case. They have not concentrated on ascertaining all the communications between the parties. It seems to me that this issue does not arise out of the statement of claim or the issues that have been discussed by counsel and that it raises a matter of a different character. It is now too late to raise it. The respondent would be prejudiced if 1t were now raised. Paragraphs 20A, 20B and 23A put, I think, in slightly different ways, issues that have been at the heart of the matters already raised in the statement of claim, that is to say, issues as to whether there should have been a revocation or reconsideration of the normal value determined in 1985. It does not appear to me that there would be any prejudice to the 5. respondent in allowing those amendments. They make somewhat clearer matters that counsel for the applicant has already put. I shall therefore give leave to amend the statement of claim by adding paragraphs 7A, 8A, 8B, 20A, 20B and 23A. I certify that this and the 4 preceding pages are a true copy of the Reasons herein of the Honourable Mr Justice Davies. ~ Associate: ~ G< Ade, Date: 4 November 1987 Counsel for the applicant: Mr M.H. Tobias Q.C. with Mr B. Walker Solicitors for the applicant: c.G. Gillis & Co. Counsel for the respondent: Mr B.T. Sully Q.C. with Mr G.S. Hosking Solicitors for the respondent: Australian Government Solicitor Date of hearing: 4 November 1987