Amending court documents - Federal Courts

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This factsheet sets out the relevant rules for making changes (called "amending") a court document after it has been filed and how to respond to an amended document if one is served on you by the other party to your proceeding.

Amending a court document

The Federal Circuit Court ("FCC") and the Federal Court each have different rules that set out when you can amend a court document. Circumstances in which you may need to amend a document include where you:

  • have not named the correct respondent;
  • need to change the final orders you are seeking; or
  • have not included an essential fact within your initial application.

This is not an exhaustive list. In all circumstances, you should consider whether an amendment is necessary. This is particularly so in the FCC which is a more informal court and any deficiencies in your pleadings can be often cured by filing an affidavit containing the relevant facts of your case.

Federal Circuit Court

Under the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") the FCC can allow the amendment of any document (other than an affidavit) at any stage in a proceeding (rule 7.01 of the FCC Rules).

If you are amending a document so that you are adding a new party, changing the capacity in which a party is suing, or claiming a new cause of action, and the limitation date for your cause of action has expired, there are certain matters you will need to demonstrate in order to be allowed to amend. These requirements can be found in rule 7.03 of the FCC Rules and include:

  1. To add a new party after the relevant limitation period has expired: that you are seeking to correct a genuine mistake and were not attempting to mislead the court or other parties or cause doubt as to the identity of the correct party to the proceedings.
  2. To change the capacity in which you are seeking orders (for example, by adding a counterclaim) after the relevant limitation period has expired: that you were able to seek the orders in your amended capacity at the time the proceedings were started.
  3. To include a new cause of action after the relevant limitation period has expired: that the new cause of action arises out of the same, or substantially the same, facts as the cause of action that is already being claimed in the proceeding.

To ask the FCC for permission to amend a document you will need to apply by filing and serving an Application in a Case and an Affidavit. Both these forms can be found on the Federal Circuit Court's website.

It is also recommended that you complete a draft of the amended document (see "How to Amend" below) and attach that to your affidavit as an annexure. While this is not a formal requirement, it will expedite the process and assist the court and the other party to clearly understand what amendments you are seeking to make.

Under the 'Order sought' section of the Application in a Case you should briefly state the orders you want the court to make. For example:

  1. Pursuant to rule 7.01 of the Federal Circuit Court Rules 2001 the Applicant be granted leave to file and serve an Amended Application - Fair Work Division in the form of Annexure JC-A to the affidavit of John Citizen dated 1 January 2013 and filed herewith.

In the Affidavit, you will need to set out the reasons why you need the amendment and address any particular points required by rule 7.03.

Federal Court

The Federal Court Rules 2011 ("the Federal Court Rules") set out the requirements for amendment of an Originating Application, Pleading, Cross-claim or Notice of Appeal. The relevant rules are:

  1. For amending an originating application, rules 8.21 to 8.25;
  2. For amending the parties to a proceedings, rule 9.54;
  3. For amending a cross-claim, rules 15.15 to 15.19;
  4. For amending pleadings, rules 16.51 to 16.60;
  5. For amending a Notice of Appeal (other then an appeal from the AAT), rule 36.10; and
  6. For amending a Notice of Appeal from a decision of the AAT, rule 33.14.

There are two types of documents you can amend in certain circumstances without getting permission ("leave") from the court. These are:

  • Under rule 16.51 pleadings (which includes a Statement of Claim, Statement of Cross-claim, Defence or Reply) can be amended once before pleadings close (see rule 16.12 for the definition of 'close of pleadings') without leave or a second time if each other party consents; and
  • Under rule 36.10 a Notice of Appeal can be amended by filing a supplementary Notice of Appeal within 28 days after filing the original Notice of Appeal.

In all other circumstances, you will need to obtain the leave of the court before you can file an amended document. If you need to ask the Federal Court for leave to amend a document you will need to apply by filing and serving an Interlocutory Application and an Affidavit. Both these forms can be found on the Federal Court's website.

It is also recommended that you complete a draft of the amended document (see "How to Amend" below) and attach that to your affidavit as an annexure. While this is not a formal requirement, it will expedite the process and assist the court and the other party to clearly understand what amendments you are seeking to make.

Under the 'Order sought' section of the Interlocutory Application you should briefly state the orders you want the court to make. For example:

  1. Pursuant to rule 8.21 of the Federal Court Rules 2011 the Applicant be granted leave to file and serve an Amended Originating Application in the form of Annexure JC-A to the affidavit of John Citizen dated 1 January 2013 and filed herewith.

In the Affidavit, you will need to set out the reasons why you need the amendment and address any particular points required by the rules relevant to the document you are seeking to amend.

How to amend

To amend court documents you need a copy of the original document to work from.

You cannot just add and remove material from the documents. Additions and deletions need to be clearly shown and distinguishable. This is achieved by underlining new material and ruling a line through material that you are no longer want to include.

Eg: The Defendant was the registered owner of the property at 100 Green Street, Brisbane in the State of Queensland, being described as Lot 1 on Survey Plan 12 345 346 Parish of Brisbane County of Stanley in the State of Queensland.

On the front page of the document that you have amended you should:

  1. Amend the title of the document to distinguish it from the original version (e.g. " Amended Originating Application").
  2. When amending an originating application, notice of cross-claim or pleading in the Federal Court, write down the left hand side of the page, "Amended on [INSERT DATE OF FILING] pursuant to the order of [INSERT NAME OF JUDGE] dated [INSERT DATE OF ORDER]", if a judge made an order for the amendment, otherwise "Amended on [INSERT DATE OF FILING] pursuant to rule [INSERT RELEVANT RULE FOR PARTICULAR DOCUMENT] of the Federal Court Rules 2011."

Filing and service of the amended document

An amended document, whether amended with or without leave of the court, needs to be filed in the relevant registry and a sealed copy served on the other parties to the proceeding as soon as possible.

Other points to keep in mind

  • The courts can be quite strict on allowing amendments to documents during the course of a trial so it is best to bring any applications well in advance of the court hearing.
  • While you can amend, the other party can ask that you pay their costs of responding to the amendment.
  • Repeated amendments of documents, while sometimes necessary, become very difficult to read and are confusing for not only the other party, but also for the judge hearing your case.

Responding to an amendment

If you receive an amended document from the other party, you should consider if you need to respond to it.

For example, if you receive an amended statement of claim that amends the amount of damages that the plaintiff is claiming, but your existing defence responds to the allegations that have been made, then you may not need to amend your Defence. On the other hand if the Amended Statement of Claim raises new allegations that are not addressed by your Defence, then you can respond by amending your Defence. Under rule 16.55(4) of the Federal Court Rules an amended defence must be filed within 28 days after the amended Statement of Claim was served on you.

In the Federal Court you can also respond to an amended pleading by applying for it to be disallowed under rule 16.52 of the Federal Court Rules. An application of this type needs to be made within 14 days after the date on which the amended pleading was served on you.

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