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)
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- Case
- [2025] FedCFamC2G 936
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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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.