Abrahams v Qantas Airways Ltd - [2007] FMCA 634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABRAHAMS v QANTAS AIRWAYS LTD

[2007] FMCA 634

INDUSTRIAL LAW – Unlawful termination – physical disability – inherent reasons exception.

PRACTICE AND PROCEDURE – Extension of time to file affidavits – whether circumstances exceptional, unusual, unanticipated – prejudice – significant and potentially fatal prejudice to Respondent.

Federal Magistrates Act 1999 (Cth), ss.3 and 42
Federal Magistrates Court Rules, 2001 (Cth), rr.1.03 and 3.05
Workplace Relations Act, 1996 (Cth), ss.659(2)(f) & (3), and 664

Caboolture Park Shopping Centre (In Liquidation) v White Industries (Queensland) Pty Ltd (1993) 45 FCR 224
Cosma v Qantas Airways Ltd [2002] FCA 640
Cosma v Qantas Airways Ltd [2002] FCAFC 425
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Hollingdale v North Coast Area Health Service [2006] FMCA 5
Laz v Downer Group Ltd [2000] FCA 1390
Queensland v JL Holdings (1997) 189 CLR 146
Mahmoud v Owners Corporation Strata Plan 811[No 2] [2006] FMCA 1711
Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131
Wiggins v Department of Defence [2006] FMCA 800

Applicant:

KEVIN PATRICK ABRAHAMS

Respondent:

QANTAS AIRWAYS LTD

File number:

PEG 324 of 2006

Judgment of:

Lucev FM

Hearing date:

19 April 2007

Date of last submission:

19 April 2007

Delivered at:

Perth

Delivered on:

19 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Grinceri

Solicitors for the Applicant:

Taylor Smart

Counsel for the Respondent:

Mr J. Blackburn

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The letter from the Respondent’s solicitors to the Court dated 16 April 2007 seeking an extension of time to file the Respondent’s affidavits and to amend the Orders of the Court made on the 17 January 2007, be treated as the Application.
Order 4 of the orders made on 17 January 2007 be varied by deleting the date ‘16 April 2007’ and inserting the time and date ’12.00 pm

23 April 2007’.
That by no later than close of business 21 days prior to the hearing, each party will, by notice in writing to the other party, specify the documents he or it intends to tender at the hearing.
That by no later than close of business 14 days prior to the hearing, each party will advise the other party in writing which of the documents intended to be tendered by the other party may be tendered with consent and in respect of those for which consent is not given, why consent to tender is withheld.
That by no later than close of business 7 days prior to the hearing, the Applicant will deliver to the Respondent a copy of each document intended to be tendered at the hearing for the purposes of compiling the bundle of documents to be tendered at trial.
That by no later than close of business 3 working days prior to the hearing the Respondent will deliver to the Court, and to the Applicant an indexed and paginated bundle of copies of documents intended to be tendered at trial by the parties.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 634
Decision Date: 19 April 2007

CaseChat Overview and Summary

The case of Abrahams v Qantas Airways Ltd was heard in a lower court in Australia. The plaintiff, Abrahams, brought a claim against the defendant, Qantas Airways Ltd, which was a matter of dispute related to some contractual or tortious obligations. The specific details of the dispute were not elaborated in the provided text, but it appears to be a civil matter concerning potential breaches of contract or negligence by the airline. The court was tasked with making certain procedural orders to manage the case leading up to the trial.

The primary legal issues before the court were procedural, focusing on the management of the evidence and documents that would be presented during the trial. The court was required to address the respondent's application for an extension of time to file affidavits and to amend previously made orders. Additionally, the court needed to establish a clear timeline for document exchange and preparation for the hearing, ensuring that both parties could adequately prepare their cases.

In making its decision, the court accepted the respondent's letter dated 16 April 2007 as the formal application for an extension and amendments to the orders. The court varied certain dates and times in the existing orders to accommodate the new timeline proposed by the respondent. It also set forth a detailed schedule for the exchange of documents and the preparation of a trial bundle. The court ensured that both parties had sufficient time to review each other's documents and specify any objections before the trial. The court also reserved the matter of costs, indicating that arguments on costs would be heard at a later date.

The final orders included varying the previously set dates and times for the filing of documents and the hearing. The court mandated a specific schedule for document exchange and the preparation of a trial bundle, with clear deadlines for each step. Costs were reserved, with further argument on this matter to be scheduled. This decision effectively managed the procedural aspects of the case, ensuring that both parties could adequately prepare for the upcoming trial.

Orders

Orders of the court

The letter from the Respondent’s solicitors to the Court dated 16 April 2007 seeking an extension of time to file the Respondent’s affidavits and to amend the Orders of the Court made on the 17 January 2007, be treated as the Application.

Order 4 of the orders made on 17 January 2007 be varied by deleting the date ‘16 April 2007’ and inserting the time and date ’12.00 pm

23 April 2007’.

That by no later than close of business 21 days prior to the hearing, each party will, by notice in writing to the other party, specify the documents he or it intends to tender at the hearing.

That by no later than close of business 14 days prior to the hearing, each party will advise the other party in writing which of the documents intended to be tendered by the other party may be tendered with consent and in respect of those for which consent is not given, why consent to tender is withheld.

That by no later than close of business 7 days prior to the hearing, the Applicant will deliver to the Respondent a copy of each document intended to be tendered at the hearing for the purposes of compiling the bundle of documents to be tendered at trial.

That by no later than close of business 3 working days prior to the hearing the Respondent will deliver to the Court, and to the Applicant an indexed and paginated bundle of copies of documents intended to be tendered at trial by the parties. The index will indicate the identity of the party who intends to tender each document and which documents are tendered by consent.

Order 9 of the orders made on 17 January 2007 be varied by deleting ‘10.15 am’ and inserting ‘9.00 am’.

Costs reserved, and argument on costs be adjourned to a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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