General applications
GA4: Change a complaint to add a new allegation (amend complaint)
Last updated: January 23, 2024
Page contents
- How to change a complaint
- When a complainant must apply to change a complaint
- Legal test: change a complaint if the hearing is less than 4 months away
- Legal test: the respondent applied to dismiss the complaint
- How to tell if a change is “in time” or late
- Legal test: change to complaint is late
How to change a complaint
A complainant must:
- File a Form 3 – Amendment
- Deliver a copy to the other participants
- Apply to change the complaint if required
There are two kinds of changes to a complaint:
- Adding details about conduct in the complaint. The legal term is “particulars”.
- Adding new conduct that the complainant says is discrimination. This is called a “new allegation”.
You don’t need to apply if you want to add details about conduct in the complaint.
When a complainant must apply to change a complaint
You must apply to add a new allegation in three situations.
- The hearing is less than 4 months away
- The respondent applied to dismiss the complaint
- The new allegation is late (explained below)
Legal test: change a complaint if the hearing is less than 4 months away
Participants need enough time to prepare for the hearing. You can add a new allegation if the hearing is more than 4 months away.
If not, you must show that changing the complaint will help get to a “just and timely resolution” of the complaint.
The Tribunal will consider the effect on the process and the outcome.
- How will it affect the time to solve the complaint?
- How much would it cost the other side?
- Would it affect a participant’s ability to present their side?
- Would it affect a participant’s chance to have a say about something important? For example, something that could affect the outcome of the complaint.
In the application, explain:
- How is the change important?
- Why didn’t you change the complaint earlier?
- Will the change delay the hearing?
Legal test: the respondent applied to dismiss the complaint
A respondent may apply to dismiss the complaint. It might be unfair to change the complaint after this happens.
You must show that changing the complaint will help get to a “just and timely resolution” of the complaint.
The Tribunal will consider the effect on the process and the outcome.
- How will it affect the time to solve the complaint?
- How much would it cost the other side?
- Would it affect a participant’s ability to present their side?
- Would it affect a participant’s chance to have a say about something important? For example, something that could affect the outcome of the complaint.
In the application, explain:
- How is the change important?
- Why didn’t you change the complaint earlier?
- How will the change affect the respondent’s application to dismiss the complaint?
How to tell if a change is “in time” or late
There is a 1-year time limit to file a complaint.
Here’s how to tell if a new allegation is “in time” or “late”. There are three situations where an allegation is “in time”. An allegation is “late” if one of these situations does not apply.
First, an allegation is “in time” if it happened after you filed the complaint.
Example:
- You filed the complaint on June 15, 2020.
- Conduct after June 15, 2020 is in time.
Second, an allegation is “in time” if it happened up to 1 year before you filed the complaint.
Example:
- You filed the complaint on June 15, 2020.
- Conduct on or after June 15, 2019 is in time.
Third, an allegation is “in time” if:
- the complaint is about similar conduct (a “continuing contravention”)
- you filed the complaint on time (within 1 year of the last conduct)
- the new allegation happened after the earliest conduct in the complaint
Example:- You filed the complaint on June 15, 2020.
- The complaint is about similar conduct from January 2018 to January 2020.
- Conduct after January 2018 is in time.
What if my complaint was late but the Tribunal accepted it?
You must apply unless the allegation is “in time”. See the three situations above where allegations are “in time”.
Example.
- You filed the complaint on June 15, 2020.
- The complaint was about conduct in January 2019.
- The Tribunal accepted your late complaint.
- You want to add another allegation from January 2019.
- It is also late. You must apply to add it.
Legal test: change to complaint is late
If the change to the complaint is late, you must show two things.
- There is a good reason to accept the new allegation. The legal term is that it must be in the “public interest”.
Reasons include:- why you are adding the allegation late
- why adding the new allegation would benefit the public
- The delay does not cause real harm to anyone. The legal term is no “substantial prejudice”.
- The delay means the time after the 1-year time limit.
- Real harm includes things like the respondent no longer has evidence they need to respond to the complaint.
- Set out any harm. Explain how the Respondent can still defend against the allegation.
- Or say, “I know of no harm to the Respondent.”