National Court of Papua New Guinea

P Young for the Plffs

S O’Brien rien for the Defendants

14 June 1999

WOODS J: The First Defendantfiled aled a Motion which seeks amongst other matters for leaveithdraw craw certain allegations pleaded in an amendetement of in m in the proceedings WS 1224 of 1998 which are now being consolidated into thto these proceedings and then to file an ad Defand Cross-Claim iaim in the consolidated proceedings. The pleadsought to be with with withdrawn were as follows:

8. The Plaintiff has for many years carried on business in the Solomon Islands and other markets in which the Plaintiff and the dant ce and has exas extensitensively promoted and supplied its corned meat products under and by reference to a trademark which comprthe word “Ox and Ford” and the representation of a particular Ox standing by anby an island in the background.

9. By reason of the matters pleaded aforesaid, a substantial number of persons seeking to acquire canned corned beef by reference to the said registered trademark, as used by the Defendant, will be or will be likely to be deceived into thinking, alternatively will be or will be likely to be caused to wonder whether it might not be the case, that the said canned beef is the Plaintiff’s said canned corned beef or have some connection in trade with the Plaintiff.

10. By reason of the matters pleaded aforesaid, the said registered trademark is a mark the use of which is likely to deceive or cause confusion.

The aant states that at the time time the amendment was drawn, engrossed and filed there was some confusion within his office and the clauses were engrossed in that form in error. The Respondent to the application, being the plafs in these proceedoceedings are objecting to this application.

The Rules of Court have always allowed parties to amend their pleadings however this doesmean that pleadings can be amended at any time and whilst slst some amendments can be made without leave, once matters have progressed to a certain stage of proceedings then leave must be sought as otherwise the other party could be forced to chop and change just because the first party decides to amend and change. The right and procedure for leave to amend pleadings is both to ensure that the real matter in controversy between the parties is clarified and also it may relieve a party of the consequences of mistakes made by a legal adviser. An overriding consideration in such application has always been a question of what the court considers to be just in the circumstances and basically the discretion is unqualified. A good statement of this diion is that of Bowen LJ in J in Cropper v Smith [1884] UKLawRpCh 91; [1884] 26 Ch D 700 at 710:

“Now I think that it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it e dobe done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do egard such amendment as a matter of favour or of grace... I... It seems to me that as soon as it appears that the way in which a party has framed his case willlead to a decision of n of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if that can be done without injustice, as anything else in the case is a matter of right.”

Whilst the pleading sought to be withdrawn appears to agree that there may be some confusion by customers as to the relationship of various labels, the masue in the case appe appears to relate to trade marks and the protection trade marks should give. And in so far as there are any aspects of passing off I may be asked to consider that on the evidence to be brought before me. It has been explained that the pleading was something apparently done in error and therefore without full instructions from the client. The pleadings still appear to be in an early stage, it is not as if the matter is ready to go to trial immediately, so any misunderstanding of the other party can be corrected as there will still be time for appropriate answering pleadings. I do not see this pleading as being an admission upon which the other party has acted to its detriment. And we are in the process of tidying up the pleadings in two similar matters such that they are being consolidated into the one proceeding. At the end of the day the Court will decide the issues.

I therefore grant leave to the defendant to withdrew the referred to clauses 8, 9 and 10 in its Statement of Claiplas pleaded in the proceedings WS 1224/98 and note that the cause of action in that proceedingo be plee pleaded as a cross-claim in these proceedings and the pleadings will be amended accordingly.