Green and anor v AMP Financial Planning Pty Ltd and anor [2004] NSWIRComm 135

Green and anor v AMP Financial Planning Pty Ltd and anor [2004] NSWIRComm 135

The proposed amendments, although substantial in number, did not constitute new proceedings because the same applicants sought to impugn the same contract arising out of the same relationship, with allegations that were variations on the same theme and did not alter the nature or character of the claim. AMP Henderson was sought to be joined in relation to the same contract and on a basis permitted for non-parties connected with or benefiting from the impugned arrangements, so s 108B did not bar the amendment or joinder.

Jurisdiction
Australia
Judgment Date
04 June 2004
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Interlocutory Motion for Leave to Further Amend the Summons by a Third Further Amended Summons and Add a Proposed Third Respondent
Outcome
Leave granted to the applicants to further amend the proceedings, subject to specified variations; costs reserved; liberty to apply granted.
Legal Topics
['amendment of Summons' 'joinder of Respondent' 'time Limit Under S 108 B' 'abuse of Process' 'unfairness Under S 106 of the Industrial Relations Act 1996']
['industrial Relations' 'unfair Contracts' 'civil Procedure'] ['amendment of Summons' 'joinder of Respondent' 'time Limit Under S 108 B' 'abuse of Process' 'unfairness Under S 106 of the Industrial Relations Act 1996']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Interlocutory Motion for Leave to Further Amend the Summons by a Third Further Amended Summons and Add a Proposed Third Respondent

Legal Issues

  1. 1 ['Whether the proposed amendments to the summons altered the case against the first and second respondents so substantially as to constitute an abuse of process.' 'Whether s 108B of the Industrial Relations Act 1996 precluded adding AMP Capital Investors Limited as a third respondent.' 'Whether the proposed amendments were directed to the same contract or constituted a fresh application for an order under s 106.']

Ratio Decidendi

The proposed amendments, although substantial in number, did not constitute new proceedings because the same applicants sought to impugn the same contract arising out of the same relationship, with allegations that were variations on the same theme and did not alter the nature or character of the claim. AMP Henderson was sought to be joined in relation to the same contract and on a basis permitted for non-parties connected with or benefiting from the impugned arrangements, so s 108B did not bar the amendment or joinder.

Court Disposition

Leave granted to the applicants to further amend the proceedings, subject to specified variations; costs reserved; liberty to apply granted.

Orders

  • ['Subject to the variations referred to in the reasons for judgment, leave is granted to the applicants to further amend the proceedings in the form of the third further amended summons.' 'Costs are reserved.' 'Liberty to apply with respect to the form of the further amended summons and with respect to costs.']