Request to amend pleadings or other hearings documents

Parties may request to amend their pleadings or other hearings documents at any time prior to the hearing. However, as a general rule, the earlier a request is received the more likely it is to be granted, as this will minimise any additional costs and delay in the proceeding.

All requests are entirely at the discretion of the Commissioner.

Parties should be aware that any protraction of proceedings, or any increased costs, that result from amendment to pleadings may invite an adverse cost award.

1. Request to amend pleadings

Amendment process overview

1. Request to amend a pleading.
2. Opposite party is given an opportunity to make submissions on the request.
3. Commissioner proposes decision to allow/reject amendment.
4. Parties have 10 working days to request a hearing on that decision. If there is no hearing the decision will be final.
5. If the amendment is allowed the other party will get one month to file an amended counterstatement.

1.1 Request to amend pleadings

Section 194, Regulations 11 and 11A

This section covers the requirements to amend pleadings.

See Pleadings for information on what constitutes a pleading and the purpose of pleadings.

A party may request to amend its pleadings:

(a) to correct a clerical error or an obvious mistake; or
(b) if the Commissioner is of the opinion that it is fair and reasonable in all the circumstances of the case to do so.

Requests to amend pleadings must contain the following information:

(a) the name and address for service of the person requesting the amendment;
(b) if that person has an agent, the agent’s name;
(c) details of the application, notice, or document to be amended; and
(d) details of the amendment.

Requests to amend pleadings should provide detailed reasons why the amendment should be allowed, either because it is:

• a clerical error;
• an obvious mistake; or
• fair and reasonable in all the circumstances of the case to do so. 

The onus is on the party requesting the amendment to provide suitably clear and detailed reasons to satisfy the Commissioner that it is appropriate to allow the amendment. ¹ It follows that a failure to provide clear, or sufficient, reasons will inevitably result in the request being refused.

Please note that requests to substitute parties or to include further parties to a proceeding will not be considered as amendments to pleadings. These must be requested under regulations 29 and 30 respectively.

1.2 Opposite party’s submissions on the request

Regulation 11A

Upon receipt of an amendment request the Commissioner will notify the opposite party. The opposite party will then be invited to make submissions on the request within a time specified by the Commissioner. The opposite party may:

• consent to the amendment;
• provide detailed reasons as to why the amendment is not permissible; or
• decline to make submissions.

1.3 Consideration of both the request and opposite party’s submissions

Regulation 11A

The Commissioner will then consider both the request and the opposite party’s submissions, if any, before notifying the parties of the Commissioner’s proposed decision.

In considering the request, the Commissioner must exercise the Commissioner’s discretion in a fair and reasonable manner having regard to all the relevant circumstances and the overall justice of the case, including:

• when the request is made;
• any perceived delays in making the request;
• the need to conduct proceedings in a timely manner;
• the prejudice to the other side; and
• the wider public interest. ²  

While it's only one of the factors to be considered, the timing of the request is always important. As a general rule, the later the request is made in the proceeding the less likely it will be granted. This is because there is a public interest in proceedings being dealt with in a timely manner. The extent of the delay also affects the extent to which parties are prejudiced by the requested amendment, particularly if the amendment is sought after the evidential stages of proceedings have been completed, as this will normally result in the other side having to file both amended pleadings and further evidence. ³

1.4 Right to a hearing on Commissioner’s proposed decision

Regulations 123 and 126(2A)

The Commissioner will advise the parties whether the Commissioner proposes to either:

• allow the amendment to the pleadings; or
• refuse the amendment request.

The adversely affected party has 10 working days to request a hearing on this proposed exercise of the Commissioner’s discretion under regulation 123. If the adversely affected party does not request an interlocutory hearing the Commissioner’s proposal becomes final.

If the adversely affected party requires a hearing they must file a notice of requirement to be heard, together with the hearing fee. ⁴

The notice must:

a) contain the affected party’s name and address for service, and if they have an agent, their agent’s name,
b) state the matter in respect of which the hearing is required,
c) be signed by the affected party, and
d) be accompanied by the hearing fee.

Upon receipt of a notice, IPONZ will advise both parties and make arrangements for an interlocutory hearing.

See how you can be heard for more informaiton.

1.5 Amended Counterstatement

Regulation 11A(4)

If the Commissioner allows the amendment of the initiating party’s pleadings (ie its notice of opposition or application for revocation, invalidity, alteration or cancellation) the Commissioner will give the opposite party one month to file an amended counterstatement and evidence (if appropriate depending on the current stage in the proceeding). The proceeding will recommence once the opposite party either files, or indicates that they do not intend to file, an amended counterstatement and evidence.

2. Request to amend other hearings documents

Introduction

A party may request to amend a document filed in a proceeding (other than its pleadings) without invoking the formal consultation process with the opposite party as outlined in steps 1.1 -and 1.2 above.

However, the IPONZ Hearings Office may invite submissions from the opposite party if it appears that the amendment will substantially alter the meaning of the document or has the potential to prejudice the position of the opposite party.

Amendment process overview

1. Request to amend a document.
2. Commissioner proposes decision to allow/reject amendment.
3. Parties have 10 working days to request a hearing on that decision.

2.1 Request to amend other hearings documents

Section 194, Regulation 11

A party may request to amend a document filed in a proceeding (other than pleadings) at any time.

Amendments can be made-

(a) to correct a clerical error or an obvious mistake; or

(b) if the Commissioner is of the opinion that it is fair and reasonable in all the circumstances of the case to do so.

Requests to amend the document must contain the following information:

(a) the name and address for service of the person requesting the amendment;

(b) if that person has an agent, the agent’s name;

(c) details of the application, notice, or document to be amended; and

(d) details of the amendment.

Please note that requests to substitute parties or to include further parties to a proceeding will not be considered as amendments to proceeding documents. These must be requested under regulations 29 and 30 respectively.

2.2 Consideration of the request

Regulation 11

The Commissioner will consider the request before notifying the parties of the Commissioner’s proposed decision.

In considering the request, the Commissioner must exercise the Commissioner’s discretion in a fair and reasonable manner having regard to all the relevant circumstances and the overall justice of the case, including the factors listed at step 1.3 above.

2.3 Right to a hearing on Commissioner’s proposed decision

Regulation 123

The Commissioner will advise the parties whether the Commissioner proposes to either:

• allow the amendment to the proceeding document; or
• refuse the amendment request.

The adversely affected party has 10 working days to request a hearing on this proposed exercise of the Commissioner’s discretion under regulation 123. If the adversely affected party does not request an interlocutory hearing the Commissioner’s proposal becomes final.

If the adversely affected party requires a hearing they must file a notice of requirement to be heard, together with the hearing fee. ⁵

The notice must:

a) contain the affected party’s name and address for service, and if they have an agent, their agent’s name,
b) state the matter in respect of which the hearing is required,
c) be signed by the affected party, and
d) be accompanied by the hearing fee.

Upon receipt of a notice, IPONZ will advise both parties and make arrangements for an interlocutory hearing.

See how you can be heard for more information.

Footnotes

• 1 New Zealand Milk Brands Ltd v Anchor Foods Pty Ltd [2010] NZIPOTM 6 at [22] citing McFarlane Fisheries v The Commissioner of Trade Marks [1996] 3 NZLR 437 at 441
• 2 Actervis, GMBH v Warimex Warren-Import Export Handels-GMBH [2015] NZIPOTM 10 at [41] citing New Zealand Milk Brands Ltd , supra at [21]
• 3 Actervis, supra at [43 – 46]
• 4 Regulations 123(1) and 126(2A)
• 5 Regulations 123(1) and 126(2A)