Legal Research
Cases
Armet v CFC Consolidated Pty Ltd (No 5)

Armet v CFC Consolidated Pty Ltd (No 5)

Link copied

Case Copied 17 June 2025 78 min read

Contents

On this page

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armet v CFC Consolidated Pty Ltd (No 5) [2025] FedCFamC2G 936

File number(s): PEG 52 of 2021

Judgment of: JUDGE LUCEV

Date of judgment: 17 June 2025

Catchwords:
INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours.

PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation

Legislation:
Building and Construction Industry Improvement Act 2005 (Cth)

Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 107, 145A, 340, 341, 342, 343, 344, 345, 351, 355, 360, 361, 368, 370

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Occupational Safety and Health Act 1984 (WA) ss 19, 20

Occupational Health and Safety Act 1985 (Vic) s 21

Workers’ Compensation and Injury Management Act 1981 (WA) ss 57, 58

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(1)

Workers’ Compensation and Injury Management Regulations 1982 (WA)

Workers’ Compensation Code of Practice (Injury Management) 2005 (WA)

Fair Work Bill 2008 (Cth), Explanatory Memorandum

Cases cited:
AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452; (2003) 8 VR 288; (2003) 130 IR 179

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301; (2021) 310 IR 71; (2021) 393 ALR 629

Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488

Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467

Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648

Armet v CFC Consolidated Pty Ltd (No 3) [2022] FedCFamC2G 950

Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; [1955] ALR 469; (1955) 29 ALJ 74

Attorney-General for New South Wales v The Perpetual Trustee Company (Limited)

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.

Keep reading for free

Create a free CaseChat account to read Armet v CFC Consolidated Pty Ltd (No 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FedCFamC2G 936
Decision Date: 17 June 2025

CaseChat Overview and Summary

In the matter of Armet v CFC Consolidated Pty Ltd, the Federal Circuit and Family Court of Australia addressed the plaintiff's application to reopen the proceedings and file further materials. The plaintiff, Mr. Armet, alleged various breaches of workplace rights by the defendant, CFC Consolidated Pty Ltd, including failure to provide a safe system of work and exposure to hazards. The court was tasked with determining the admissibility of additional evidence and affidavits presented by the plaintiff, which the defendant contested on the grounds of relevance and procedural fairness. The court considered the principles set out in Ample Source International Limited v Bonython Metals Group Pty Ltd and other relevant case law in assessing the application.

The legal issues before the court included whether the proposed additional evidence was relevant and necessary for the case, and whether the application to reopen the proceedings was an abuse of process. The court also had to consider the potential prejudice to the defendant, the public interest in the finality of litigation, and the fairness of allowing new evidence to be introduced at this stage of the proceedings. The court examined the content of the proposed additional evidence, including allegations of misconduct and collusion, to determine whether they met the threshold for reopening the case. The defendant argued that the new materials were irrelevant and scandalous, and that the plaintiff had ample opportunity to present this evidence during the original proceedings.

The court found that the application to reopen the proceedings and file further materials was to be dismissed. The court held that the new evidence did not satisfy the criteria for reopening the case, as it did not demonstrate a significant impact on the outcome of the original decision. The court also noted that the plaintiff had multiple opportunities to present the evidence during the original proceedings and that the delay in submitting the new materials was unjustified. The court emphasized the importance of finality in litigation and the potential prejudice to the defendant if the case were reopened at this stage. The court concluded that the public interest in the finality of litigation outweighed the potential benefits of allowing the new evidence.

In conclusion, the court dismissed the plaintiff's application to reopen the proceedings and file further materials. The court found that the new evidence was not relevant or necessary to the case and that the application was an abuse of process. The court also noted the potential prejudice to the defendant and the public interest in the finality of litigation. The court ordered that the originating application filed by the plaintiff on 17 March 2021 be dismissed, except for the claim that CFC had contravened section 340(1)(a)(i) and (ii) by failing to provide light duties to Mr. Armet in the period from 24 March 2015 to 15 September 2015, thereby not affording him a safe system of work and exposing him to hazards. The court reserved the issue of penalty and compensation for a future hearing and ordered that costs, if any, be reserved pending the determination of penalty and compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Various interlocutory matters were heard and determined prior to final hearing. In summary, they were as follows:(a)in Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467 an application in a proceeding to bring forward the hearing date (initially set for two days in orders made at a directions hearing on 20 May 2022) was dismissed, and an oral application for provision of hard copies of transcript of the proceedings free of charge was reserved for further consideration;(b)in Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648 (“Armet (No 2)”) the oral application for provision of hard copies of transcript of the proceedings was dismissed; and(c)in Armet v CFC Consolidated Pty Ltd (No 3) [2022] FedCFamC2G 950 (“Armet (No 3)”):(i)CFC was granted leave to file a slightly amended outline of submissions; and(ii)in response to Mr Armet’ s application in a proceeding filed 11 October 2022 seeking orders that the final hearing be listed for four days and for the provision of hard copies of the transcript of the proceedings free of charge, the Court ordered that:(A)the final hearing be listed for three days with extended sitting hours of 9.00 am to 5.30 pm; and(B)the application for provision of hard copies of the transcript of the proceedings free of charge be dismissed.EVIDENCEMr Armet’s Affidavits The affidavits filed by Mr Armet and sought to be relied on at final hearing were as follows:(a)an affidavit sworn on 8 April 2021 and filed on 30 April 2021 (“April 2021 Affidavit”) (the Court notes that the April 2021 Affidavit has a typed “Date sworn/affirmed” of 22 March 2021 but it is apparent that this is incorrect as the April 2021 Affidavit is signed and dated 8 April 2021 by Mr Armet);(b)an affidavit affirmed 23 July 2021 and filed 25 July 2021 (“July 2021 Affidavit”);(c)an affidavit sworn 25 August 2021 and filed 30 August 2021 (“August 2021 Affidavit”);(d)an affidavit sworn or affirmed on 7 July 2022 and filed 18 July 2022 (“July 2022 Affidavit”);(e)an affidavit sworn or affirmed and filed on 12 August 2022 (“August 2022 Affidavit”);(f)an affidavit sworn 4 October 2022 and accepted for filing on 13 October 2022 (“October 2022 Affidavit”); and(g)an affidavit sworn or affirmed on 17 November 2022 and filed on 5 December 2022 (“November 2022 Affidavit”). CFC objected to much of the material contained in and annexed to Mr Armet’s affidavits. The Court dealt with those objections over a day and a half at the commencement of the final hearing. The August 2021 and October 2022 Affidavits were struck out in their entirety, all of the annexures to the November 2022 Affidavit were struck out, and varying (but often significant) portions of the other affidavits and their annexures were also struck out. The outcomes are recorded in the Schedule to Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325 (“Armet (No 4)”) (in which the Court notes that the April 2021 Affidavit is incorrectly noted as being sworn 22 March 2021: see [4(a) above]); see also Tr, 17 February 2023, pp 7-82 and 20 February 2023, pp 83-129.

Decision

Reasons for decision

In the circumstances there will be order that the oral application to file an application in a proceeding to re-open the proceedings and file further material is to be dismissed.CONCLUSION The Court has concluded that: (a)Mr Armet’s oral application to file an application in a proceeding to re-open the proceedings and file further materials is to be dismissed;(b)in relation to liability that CFC has contravened s 340(1)(a)(i) and (ii) by failing to provide light duties to Mr Armet in the period from 24 March 2015 to 15 September 2015 thereby not affording him a safe system of work and exposing him to hazards, but otherwise the originating application filed 17 March 2021 is to be dismissed; (c)as to penalty and compensation, there will be orders for the filing of any further evidence, including any expert’s reports, and submissions, prior to a hearing on penalty and compensation; and (d)costs, if any, will be reserved pending determination of penalty and compensation.

Ratio Decidendi

Legal Principle Established

CFC submitted that:(a)the Proposed AIP and Supporting Affidavits are an abuse of process and should not be accepted, and the allegations made by Mr Armet are scandalous and without basis;(b)to the extent the Proposed AIP and Supporting Affidavits contain any evidence Mr Armet is seeking to reopen his case;(c)Mr Armet had attempted to file similar materials on or about 28 April 2023, and that affidavit was not allowed in as it was effectively submission and is the same as what is now before the Court; (d)in particular there were similar allegations against Mr French in relation to his examination of Mr Uren in these materials as were made about him in the materials previously attempted to be filed by Mr Armet;(e)the fact that Mr Armet had additional opportunity to consider the transcript and had thought of additional things post-hearing is immaterial and is simply “too late”;(f)there was nothing in the Proposed AIP or Supporting Affidavits that would satisfy the requirements for Mr Armet to reopen his case and the leave to do so should be dismissed.Consideration – application to re-open In determining whether or not to re-open a case and allow further evidence to be led the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J (“Ample Source”). Part of that test is the relevance of the proposed material: Ample Source at [355] per Robertson J, where the Federal Court said as follows:Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle. The Court further observes that:(a)the decision to re-open a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587; (2006) 58 ACSR 414 at [18] per Austin J (“Rich”);(b)in Rich the New South Wales Supreme Court said the following factors are relevant to the exercise of a court’s discretion to re-open:(i)the degree of relevance and the probative value of the further evidence sought to be adduced, and its potential to involve an undue waste of time;(ii)the nature of the proceeding;(iii)the extent to which Mr Atkinson embarked upon calling the further evidence during the hearing;(iv)whether calling the further evidence ought reasonably to have been foreseen;(v)what explanation is offered by Mr Atkinson for not having called the further evidence during the hearing;(vi)the consideration of fairness that a respondent is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; and (vii)the prejudice to a respondent in terms of delay in the completion of the proceeding (and the consequential costs);Rich at [18] per Austin J; and(c)regard must also be had to the public interest in the finality of litigation: Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33; CLR at 302-303 per Mason CJ.

File number(s):	PEG 52 of 2021
Judgment of:	JUDGE LUCEV
Date of judgment:	17 June 2025
Catchwords:	INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours. PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation
Legislation:	Building and Construction Industry Improvement Act 2005 (Cth) Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 107, 145A, 340, 341, 342, 343, 344, 345, 351, 355, 360, 361, 368, 370 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190 Occupational Safety and Health Act 1984 (WA) ss 19, 20 Occupational Health and Safety Act 1985 (Vic) s 21 Workers’ Compensation and Injury Management Act 1981 (WA) ss 57, 58 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(1) Workers’ Compensation and Injury Management Regulations 1982 (WA) Workers’ Compensation Code of Practice (Injury Management) 2005 (WA) Fair Work Bill 2008 (Cth), Explanatory Memorandum
Cases cited:	AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452; (2003) 8 VR 288; (2003) 130 IR 179 Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301; (2021) 310 IR 71; (2021) 393 ALR 629 Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467 Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648 Armet v CFC Consolidated Pty Ltd (No 3) [2022] FedCFamC2G 950 Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325 Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; [1955] ALR 469; (1955) 29 ALJ 74 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited)