Altrad Australia Pty Ltd v Dropulich

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The applicants apply for leave to amend their statement of claim in terms of a minute of second further amended statement of claim filed on 1 December 2025. The defendants neither consent nor oppose the proposed amendments, but require the Court to be satisfied that leave should be granted and, if leave be granted, submit the applicants should pay their costs thrown away consequent on the amendment and their costs of the application. The first and second respondents also seek an order that the costs be paid immediately. The applicants accept that they must pay the respondents' costs thrown away, but submit the appropriate order on the application is that costs be in the cause. Otherwise, if leave be granted, all parties agree that the trial listed for ten days commencing on 4 May 2026 must be vacated, existing pre-trial orders for directions set aside, and the case management hearing be re-listed at the earliest convenient date after 2 February 2026.
2. Except for the question of the costs of the application and immediacy of payment, I am satisfied that the application can be dealt with without an oral hearing in accordance with s 20A of the Federal Court of Australia Act 1976 (Cth).
3. Rule 16.53 the Federal Court Rules 2011 (Cth) confers a discretion on the Court to grant the applicants leave to further amend their statement of claim. As a civil practice and procedure provision, the power must be exercised in the way that best promotes the overarching purpose of those provisions described in s 37M of the Federal Court Act. In general, the discretion is broad and has the remedial objective of ensuring that any defect in pleadings is cured, the real questions in the controversy are properly agitated, and to avoid a multiplicity of proceedings. The discretion is not to be exercised to punish parties for mistakes made in the conduct of their case but to correct errors with the result that a decision can be made on the real matters in controversy. In general, leave should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed or the amendment is likely to be struck out, or would cause substantial prejudice or injustice to the opposing party or other litigants in a way that cannot be compensated with costs: Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [19]- [21]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [89]- [103], [111]-[116] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
4. In Aon it was observed that the objectives of provisions like s 37M of the Federal Court Act:
   1. ... do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst [s 37M] assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. [Section 37M] makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
5. Otherwise, it is well-established that the following considerations are relevant to the exercise of the discretion to amend pleadings:

(a) the nature and importance of the amendment to the party applying for it;

(b) the extent of the delay and the costs associated with the amendment;

(c) the explanation for the delay in applying for leave;

(d) the prejudice to the other parties arising from the amendment, including as a result of decisions that had been made in the litigation prior to the application to amend; and

(e) prejudice or injustice for other litigants and the Court arising from delay.

1. In the absence of any opposition or reservation of rights to object, there is no reason for considering the amendments are liable to be struck out or fail to meet the relevant requirements of Div 16.1 of the Rules. Further, no respondent submits that it would be prejudiced by the amendments if leave were granted on the proviso that the trial be vacated and there be an order that the applicant pay the respondents' costs thrown away consequent on the amendment.
2. The affidavit in support of the application provides a proper and adequate explanation for the reasons for applying for the amendment at this time and for not having included the relevant allegations in the earlier versions of the pleading. The originating process in the proceeding was filed on 5 December 2024. The matter was listed for trial following a case management hearing on 10 April 2025 based on an assumption that the issues in the proceeding were relatively confined and acceptance of the parties' submissions (primarily those of the applicants) to the effect that all necessary pre-trial interlocutory steps could and would be completed before the commencement of the trial. The interlocutory steps included conferral regarding expert evidence and the preparation of a common set of questions for the experts. Timely completion of that step proved difficult. It was also the process of preparing briefs to experts that exposed the deficiencies in the applicants' statement of claim that they now wish to correct. With the benefit of hindsight, listing the matter for trial on acceptance that the parties could and would complete all necessary interlocutory steps in the proceeding within a year was unduly optimistic.
3. Although there will be an inevitable degree of prejudice to other litigants if the trial dates are vacated, in the context of this particular proceeding, the interests of justice will be better served by permitting the amendments and vacating the trial dates. The prejudice to the applicants in refusing leave and the objective of resolving the real issues in controversy outweigh all other factors. The consequence of granting leave and vacating the trial dates is that the applicants must pay the respondents' costs thrown away by reason of the amendments. Further, the matter will not be re-listed for trial until it is truly ready to be heard.
4. I will hear the parties on the question of the costs of the interlocutory application and whether costs should be paid immediately or in any event.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.