Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd

[2005] WASCA 157

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & ORS -v- BELL-A-BIKE ROTTNEST PTY LTD & ORS [2005] WASCA 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 157
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:173/2004	Heard:	18 MAY 2005
Coram:	WHEELER JA ROBERTS-SMITH JA	Delivered:	18/08/05
No of pages:	29	Judgment Part:	1 of 1
Result:	Defendants' application for leave to appeal (FUL 173/04) granted; Appeal allowed Plaintiffs' application for leave to appeal (CACV 2/05) granted; Appeal allowed; Extension of time granted in any event Plaintiffs' notice of motion for judgment (CIV 2496/01) remitted to Master
Category:	B
PDF Version

Parties:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU) MICHAEL ANDERTON JOCK FERGUSON TIMOTHY KUCERA LENARD CHRISTIE TRISTAN DEMMLER LOUISE DI FALCO DAVID ROMANOWSKI STEVEN VERT NICHOLAS YEOMANS BELL-A-BIKE ROTTNEST PTY LTD SANDRA PARKER GLEN PARKER
Catchwords:	Practice and procedure Extension of time in which to file application for leave to appeal Nunc pro tunc order extending time Wrongly heard ex parte Practice and procedure Defamation Pleading Refusal of application for adjournment of application to strike out Whether reasonable cause of defence in s 166A of Workplace Relations Act 1996 (Cth) Whether vague and embarrassing
Legislation:	Workplace Relations Act 1996 (Cth), s 166A
Case References:	Baume v Commonwealth (1906) 4 CLR 97 Boyes v Colins (2000) 23 WAR 123 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCA 448 Eastman v The Queen (2000) 203 CLR 1 Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 Johnson Tiles Pty Ltd v Esso Australia (2000) 104 FCR 564 Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks (2002) 122 FCR 494 Kirika v Zurich Australian Insurance Pty Ltd & Anor [2002] WASCA 233 Mickelberg v 6PR Southern Cross Radio Pty Ltd & Ors [2002] WASCA 270 Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Myers v Myers [1969] WAR 19 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 R v Associated Northern Collieries (1910) 11 CLR 738 Royal v Alcoa of Australia Ltd [2004] WASCA 269 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 Wilson v Metaxas [1989] WAR 285 Gallo v Dawson (1990) 93 ALR 479 Robe River Iron Associates v Amalgamated Metal Workers & Shipwrights Union (1990) 70 WAIG 2083 Stead v State Government Insurance Commission (1986) 161 CLR 141 Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8514; 27 September 1990 The Age Co Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, unreported; AIRC (FB); PR 913101; 22 January 2002 Williamson v Metaxas & Vernon (a firm) [2004] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & ORS -v- BELL-A-BIKE ROTTNEST PTY LTD & ORS [2005] WASCA 157 CORAM : WHEELER JA

ROBERTS-SMITH JA

HEARD : 18 MAY 2005 DELIVERED : 18 AUGUST 2005 FILE NO/S : FUL 173 of 2004 BETWEEN : AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH

First Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU)
Second Applicant

MICHAEL ANDERTON
Third Applicant

JOCK FERGUSON
Fourth Applicant

TIMOTHY KUCERA
Fifth Applicant

LENARD CHRISTIE
Sixth Applicant

(Page 2)

TRISTAN DEMMLER
Seventh Applicant

LOUISE DI FALCO
Eighth Applicant

DAVID ROMANOWSKI
Ninth Applicant

STEVEN VERT
Tenth Applicant

NICHOLAS YEOMANS
Eleventh Applicant

AND

BELL-A-BIKE ROTTNEST PTY LTD
First Respondent

SANDRA PARKER
Second Respondent

GLEN PARKER
Third Respondent

FILE NO/S : CACV 2 of 2005 BETWEEN : BELL-A-BIKE ROTTNEST PTY LTD

First Applicant

SANDRA PARKER
Second Applicant

GLEN PARKER
Third Applicant

AND

(Page 3)

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH
First Respondent

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU)
Second Respondent

MICHAEL ANDERTON
Third Respondent

JOCK FERGUSON
Fourth Respondent

TIMOTHY KUCERA
Fifth Respondent

LENARD CHRISTIE
Sixth Respondent

TRISTAN DEMMLER
Seventh Respondent

LOUISE DI FALCO
Eighth Respondent

DAVID ROMANOWSKI
Ninth Respondent

STEVEN VERT
Tenth Respondent

NICHOLAS YEOMANS
Eleventh Respondent

FILE NO/S : CIV 2496 of 2001 BETWEEN : BELL-A-BIKE ROTTNEST PTY LTD

First Plaintiff

(Page 4)

SANDRA PARKER
Second Plaintiff

GLEN PARKER
Third Plaintiff

AND

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH
First Defendant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU)
Second Defendant

MICHAEL ANDERTON
Third Defendant

JOCK FERGUSON
Fourth Defendant

TIMOTHY KUCERA
Fifth Defendant

LENARD CHRISTIE
Sixth Defendant

TRISTAN DEMMLER
Seventh Defendant

LOUISE DI FALCO
Eighth Defendant

DAVID ROMANOWSKI
Ninth Defendant

STEVEN VERT
Tenth Defendant

(Page 5)

NICHOLAS YEOMANS
Eleventh Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 2496 of 2001

Catchwords:

Practice and procedure - Extension of time in which to file application for leave to appeal - Nunc pro tunc order extending time - Wrongly heard ex parte

Practice and procedure - Defamation - Pleading - Refusal of application for adjournment of application to strike out - Whether reasonable cause of defence in s 166A of Workplace Relations Act 1996 (Cth) - Whether vague and embarrassing

Legislation:

Workplace Relations Act 1996 (Cth), s 166A

Result:

Defendants' application for leave to appeal (FUL 173/04) granted; Appeal allowed

Plaintiffs' application for leave to appeal (CACV 2/05) granted; Appeal allowed; Extension of time granted in any event
Plaintiffs' notice of motion for judgment (CIV 2496/01) remitted to Master

Category: B

(Page 6)

Representation:

FUL 173 of 2004

Counsel:

First Applicant : Mr G R Donaldson SC
Second Applicant : Mr G R Donaldson SC
Third Applicant : Mr G R Donaldson SC
Fourth Applicant : Mr G R Donaldson SC
Fifth Applicant : Mr G R Donaldson SC
Sixth Applicant : Mr G R Donaldson SC
Seventh Applicant : Mr G R Donaldson SC
Eighth Applicant : Mr G R Donaldson SC
Ninth Applicant : Mr G R Donaldson SC
Tenth Applicant : Mr G R Donaldson SC
Eleventh Applicant : Mr G R Donaldson SC
First Respondent : Mr T H F Caspersz
Second Respondent : Mr T H F Caspersz
Third Respondent : Mr T H F Caspersz

Solicitors:

First Applicant : Chapmans
Second Applicant : Chapmans
Third Applicant : Chapmans
Fourth Applicant : Chapmans
Fifth Applicant : Chapmans
Sixth Applicant : Chapmans
Seventh Applicant : Chapmans
Eighth Applicant : Chapmans
Ninth Applicant : Chapmans
Tenth Applicant : Chapmans
Eleventh Applicant : Chapmans
First Respondent : Jackson McDonald
Second Respondent : Jackson McDonald
Third Respondent : Jackson McDonald

(Page 7)

<mpr>

CACV 2 of 2005

Counsel:

First Applicant : M T H F Caspersz
Second Applicant : Mr T H F Caspersz
Third Applicant : Mr T H F Caspersz
First Respondent : Mr G R Donaldson SC
Second Respondent : Mr G R Donaldson SC
Third Respondent : Mr G R Donaldson SC
Fourth Respondent : Mr G R Donaldson SC
Fifth Respondent : Mr G R Donaldson SC
Sixth Respondent : Mr G R Donaldson SC
Seventh Respondent : Mr G R Donaldson SC
Eighth Respondent : Mr G R Donaldson SC
Ninth Respondent : Mr G R Donaldson SC
Tenth Respondent : Mr G R Donaldson SC
Eleventh Respondent : Mr G R Donaldson SC

Solicitors:

First Applicant : Jackson McDonald
Second Applicant : Jackson McDonald
Third Applicant : Jackson McDonald
First Respondent : Chapmans
Second Respondent : Chapmans
Third Respondent : Chapmans
Fourth Respondent : Chapmans
Fifth Respondent : Chapmans
Sixth Respondent : Chapmans
Seventh Respondent : Chapmans
Eighth Respondent : Chapmans
Ninth Respondent : Chapmans
Tenth Respondent : Chapmans
Eleventh Respondent : Chapmans

(Page 8)

CIV 2496 of 2001

Counsel:

First Plaintiff : Mr T H F Caspersz
Second Plaintiff : Mr T H F Caspersz
Third Plaintiff : Mr T H F Caspersz
First Defendant : Mr G R Donaldson SC
Second Defendant : Mr G R Donaldson SC
Third Defendant : Mr G R Donaldson SC
Fourth Defendant : Mr G R Donaldson SC
Fifth Defendant : Mr G R Donaldson SC
Sixth Defendant : Mr G R Donaldson SC
Seventh Defendant : Mr G R Donaldson SC
Eighth Defendant : Mr G R Donaldson SC
Ninth Defendant : Mr G R Donaldson SC
Tenth Defendant : Mr G R Donaldson SC
Eleventh Respondent : Mr G R Donaldson SC

Solicitors:

First Plaintiff : Jackson McDonald
Second Plaintiff : Jackson McDonald
Third Plaintiff : Jackson McDonald
First Defendant : Chapmans
Second Defendant : Chapmans
Third Defendant : Chapmans
Fourth Defendant : Chapmans
Fifth Defendant : Chapmans
Sixth Defendant : Chapmans
Seventh Defendant : Chapmans
Eighth Defendant : Chapmans
Ninth Defendant : Chapmans
Tenth Defendant : Chapmans
Eleventh Respondent : Chapmans

(Page 9)

Case(s) referred to in judgment(s):

Baume v Commonwealth (1906) 4 CLR 97
Boyes v Colins (2000) 23 WAR 123
Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCA 448
Eastman v The Queen (2000) 203 CLR 1
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Johnson Tiles Pty Ltd v Esso Australia (2000) 104 FCR 564
Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks (2002) 122 FCR 494
Kirika v Zurich Australian Insurance Pty Ltd & Anor [2002] WASCA 233
Mickelberg v 6PR Southern Cross Radio Pty Ltd & Ors [2002] WASCA 270
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628
Myers v Myers [1969] WAR 19
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
R v Associated Northern Collieries (1910) 11 CLR 738
Royal v Alcoa of Australia Ltd [2004] WASCA 269
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wilson v Metaxas [1989] WAR 285

Case(s) also cited:

Gallo v Dawson (1990) 93 ALR 479
Robe River Iron Associates v Amalgamated Metal Workers & Shipwrights Union (1990) 70 WAIG 2083
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8514; 27 September 1990
The Age Co Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, unreported; AIRC (FB); PR 913101; 22 January 2002
Williamson v Metaxas & Vernon (a firm) [2004] WASCA 248


(Page 10)

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: These applications relate to a claim by the plaintiffs in CIV 2496/01, Bell-a-Bike Rottnest Pty Ltd and its directors and shareholders, Sandra and Glen Parker, for damages against the defendants for slander and libel. It is pleaded that the defendants made defamatory statements to journalists from "The West Australian" newspaper and distributed defamatory pamphlets in Fremantle and Rottnest Island relating to an industrial dispute that occurred between November 2000 and January 2001.

3 Both parties have brought applications before this Court. For clarity, I will refer to the parties as plaintiffs and defendants.

4 The first application is the defendants' application for leave to appeal an order of Master Sanderson made 9 August 2004, refusing the defendants' application to adjourn the plaintiffs' application to strike out certain paragraphs of the defendants' re-amended defence and in fact, striking out those paragraphs (FUL 173/04).

5 The second is the plaintiffs' application for leave to appeal an order of Master Sanderson made 17 November 2004 extending the time in which the defendants were to file the application for leave to appeal above (CACV 2/05).

6 The third application is the plaintiffs' notice of motion for judgment pursuant to O 41 r 1 of the Rules of the Supreme Court ("Rules") and the inherent jurisdiction of the Court.

Facts

7 On 10 June 2004, the plaintiffs filed an application to the case management Registrar seeking orders that pars 13 to 41 inclusive of the re-amended defence be struck out and that pars 64 to 66 be disallowed. The application was made pursuant to an order of Registrar Johnston made 27 May 2004 at a case evaluation conference, which the defendants' solicitors did not attend due to what they described as an administrative error at their office. The application was brought on the basis that following an amendment to the statement of claim made by consent on 5 December 2004, pars 13 to 41 of the re-amended defence no longer corresponded to the correct paragraphs in the statement of claim. The plaintiffs also objected to pars 64 to 66 on the basis that leave was

(Page 11)

required for those amendments and such leave had not been sought nor obtained. These paragraphs sought to include a plea based on s 166A of the Workplace Relations Act 1996 (Cth). It was their submission that such leave should not be granted on the basis that those paragraphs were vague and embarrassing, not adequately particularised and raised no reasonable cause of defence.

8 On 11 June, the matter was referred to the Master and a hearing date of 9 August was set administratively. By letter dated 8 July, the plaintiffs' solicitors wrote to the defendants' solicitors requesting a minute of re-amended defence. On 9 July, the defendants' solicitors wrote to the plaintiffs' solicitors (AB 109):

"We refer to previous correspondence and note with interest your Application sent to the Court filed as we understand it, sometime in the middle of June 2004.

We note with further interest that that the Court appears, in response, and without hearing from us, as to the merits or otherwise of your application, indicated [sic] that the application will be referred to a Master for determination.

Without conceding the merits of the application, or the way in which the orders were made by the Registrar, our unavailable dates for a special appointment are as follows …"

9 The plaintiffs' solicitors responded on 12 July by outlining the events which had led to their clients' application. This indicated a failure on behalf of the defendants' solicitors to respond to correspondence seeking agreement to amend the disputed paragraphs. It stated that the merits of their application could have been argued at the case evaluation conference on 27 May, had the defendants' solicitors attended, and that the application was filed and served on the defendants' solicitors on 10 June. It also stated that the court had listed the special appointment without reference to either party as to their unavailable dates and hence, neither party was prejudiced as against the other. The plaintiffs' solicitors also indicated their intention to argue the matter fully on 9 August. The plaintiffs' solicitors filed an outline of submissions and list of authorities on 13 July.

10 On 28 July, the defendants' solicitors wrote to the Court in the following terms (AB 146):

(Page 12)

"Our client's Counsel, Mr Grant Donaldson, is unavailable for the 9 August 2004. Our unavailable dates were not sought prior to the special appointment being listed and, counsel conducting this matter is not available on 9 August 2004 or, on any other date advised by us in our letter of 22 July 2004."

11 The plaintiffs' solicitors wrote to the Court in response, enclosing a copy of their letter of 12 July and reiterating their position. The Master's Administrator responded to the defendants' solicitors via facsimile dated 3 August, stating that their request to reschedule the special appointment listed for 9 August was refused and that any application to vacate the hearing must be filed forthwith. Correspondence followed in which each party reiterated their position as previously stated.

12 At the hearing on 9 August, the defendants' solicitor, Mr Gandini, sought an adjournment on the basis that their unavailable dates had not been sought prior to the listing of the matter and that counsel's unavailability to argue the matter on that day would result in prejudice to their client. In refusing the adjournment, the Master made the following comments (AB 197):

"… the parties were notified that this matter would be heard today back in late June, around about 21 or 22 June. If a date is unsuitable, any party should attempt to have the date moved.

The availability of counsel is a consideration and one which, as a matter of practice, we take into account but it is not determinative [of] the date upon which the matter will be heard. The lists simply don't allow for that. Further, the date can be, on occasions is, shifted administratively if all parties consent and if there's no difficulty about it but if that proves not to be possible for one reason or another then it is always open to a party to apply in chambers to have the date vacated.

The lists are such now that were I to vacate this appointment, it would probably be a month at the earliest… before the matter can be heard. That's just not fair to a plaintiff who has followed a proper procedure, has done everything that is required of them to have the matter disposed of expeditiously and who should not be put to the expense and inconvenience of an alternative date when they are ready to proceed.

I might add in passing that I find it very difficult to understand why it is that written submissions could not have been prepared

(Page 13)

and filed irrespective of whether the matter was to go ahead. I would also make this further point: although the application to strike out is a matter of some significance, it is a small, narrow and discrete point.

While having counsel of choice is obviously important to a defendant who is in the position of these defendants, I can't see that the point at issue, being an interlocutory point, albeit to do with the pleading of a particular defence to the claim, is so important that that one counsel and only counsel should deal with the matter. I am not satisfied that the requirements of an adjournment are made out and the matter ought proceed today."

13 What followed is set out at AB 197 - 198:

"GANDINI, MR: … Sir, in those circumstances, I don't intend to stay today unless requested by the court. I'm just not in a position to argue it. I don't want my presence to be interpreted - I have a busy practice to run. I don't know anything about - I mean, I have the day-to-day conduct. I'm just not in a position to argue it and I don't want to prejudice any rights of appeal that may lie by staying and appearing to acquiesce, so subject to your views as to the - - -

THE MASTER: It's not a question of my views.

GANDINI, MR: Yes.

THE MASTER: If you wish to leave, Mr Gandini, then - - -

GANDINI, MR: I have no option. I just simply can't stay and argue the matter, sir. I'm not in a position to argue it, so I would with the leave of the court, if required - - -

THE MASTER: All right."

14 The Master then ordered that the application for adjournment be refused and that pars 13 to 41 inclusive and 64, 65 and 66 of the re-amended defence dated 12 May be struck out. It is these orders that are the subject of the defendants' application for leave to appeal in FUL 173/04.

15 Given that pars 13 to 41 were struck out only on the basis that they no longer corresponded to the same numbered paragraphs of the statement of claim, leave was given to the defendants to re-plead those paragraphs

(Page 14)

within 14 days. This was not done. On 24 August, the plaintiffs' solicitors wrote to the defendants' solicitors stating that they had not been served with a minute of the amended re-amended defence within the time period allowed by the Master. Accordingly, they were of the view that the re-amended defence was in a form that failed to disclose a defence in respect of a substantial portion of the amended statement of claim. They stated that if they were not served with notice of an application for extension of time within which to file an amended re-amended defence within 48 hours of their letter, they were instructed to apply to the Court for an order that judgment be entered for the plaintiffs in respect of those parts of the amended statement of claim on the grounds that the re-amended defence did not disclose any defence thereto.

16 The defendants' solicitors replied on 25 August that they had been instructed to appeal the Master's orders of 9 August. On 27 August, the plaintiffs' solicitors informed the defendants by letter that in light of the defendants' failure to respond to their letter of 24 August, they had been instructed to file a motion for judgment in respect of that part of the statement of claim now not addressed by the re-amended defence.

17 On 21 October 2004 the plaintiffs filed a notice of motion for judgment pursuant to O 41 r 1 of the Rules and the "inherent jurisdiction of the Court". This was made returnable on 10 November 2004, by which time the defendants had filed their application for leave to appeal. Master Sanderson referred the notice of motion to this Court for consideration at the same time as the defendants' application for leave to appeal.

18 Time expired for the defendants to file an application for leave to appeal on 30 August. A notice of motion of ex parte application for an extension of time to seek leave to appeal was filed on 17 September supported by an affidavit of Gary Stephen Cooper sworn 14 September. He deposed that an extension of time was sought due to problems the defendants' solicitors had in filing the documents because of misinformation about the required filing fees. On 10 November (the same day on which the plaintiffs' notice of motion for judgment was returnable), the Master extended the time to 12 November, which was a Friday.

19 The parties were represented by counsel on Wednesday 10 November. Counsel for the plaintiffs expressed concern about the ongoing delays - hence their notion of motion for judgment. He said there was no knowledge at that time of the defendants' application for leave to appeal The plaintiffs opposed the defendants' application for leave to

(Page 15)

appeal. Counsel appreciated that if the Master were to refuse the defendants' application, the defendants would simply renew it before the Full Court, and acknowledging the plaintiffs' notice of motion for judgment could not properly be dealt with until the defendants' application had been, counsel for the plaintiffs agreed that the appropriate course would be for both applications to be referred to the Full Court. It was on that basis that the Master granted the defendants' application for an extension of time. Mr Donaldson, for the defendants, asked that time be extended to Friday 12 November - ie two days hence.

20 The application for leave to appeal was not filed until Monday 15 November. Mr Gandini appeared before the Master on 17 November, ex parte, and sought a further extension of time, nunc pro tunc, so as to include 15 November. Mr Gandini simply informed the Master that there would be "no appearance from the other side", when in actual fact there was no appearance for the plaintiffs because no notice had been given to them. It is this further extension of time that is the subject of the plaintiffs' application for leave to appeal in CACV 2/05.

21 It should also be noted here that following the hearing of these applications on 18 May 2005, the solicitors for the defendants wrote to the Court on 30 June 2005 seeking to have the Court reconvene so the defendants could put a further affidavit of Mr Gandini before the Court. This further affidavit was said to go to matters leading up to and including 17 November 2004. A copy of this affidavit was provided to the plaintiffs' solicitors who opposed the defendants' request to have the Court reconvene.

22 By letter to both parties dated 4 July 2005, the Court allowed the defendants to file, within three working days, submissions as to why the Court should receive the further affidavit and what use the defendants sought to have the court make of it. A copy of the affidavit was to be annexed to the submissions and the plaintiffs were given a further seven days to make any submissions in reply.

23 On 6 July 2005, the defendants filed their submissions with a copy of the affidavit of Leonard Gandini, affirmed 23 May 2005. On 8 July, the plaintiffs' solicitors wrote to the Court requesting that the time for filing their submissions in reply be extended to 29 July, as both counsel and the lawyer with the general conduct of the matter were on leave.

24 On 18 July 2005, the Court informed the parties that it no longer required the plaintiffs to file submissions in response. No good reason

(Page 16)

was advanced for the Court to take account of material that plainly was in issue in the application for leave to appeal and should have, if relevant, been filed before the hearing of the application. In any event, it reveals a complete and inexplicable failure on the part of the defendants' solicitors to understand the most basic principles of case management and of the judicial process, in that it reinforces the impression that they have a view that an order of the Court extending time is "purely administrative" and that it is somehow open to a party to get a further extension of time without actually making an application for an extension, and without notifying the other party. Accordingly, the Court has not accepted the further affidavit and refuses the defendants' request to have the Court reconvene.

The Principles

25 The requirements for leave to appeal to be granted under O 63A are well established. The Court must be satisfied that the decision below is wrong or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done if the decision remained unreversed: see Wilson v Metaxas [1989] WAR 285 at 294; Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 at 336. Whether substantial injustice would be done depends on all the circumstances of the case (ibid).

26 An appellate court should not interfere with a decision on a matter of practice and procedure unless clearly satisfied that a wrong principle has been applied or that injustice will result from the order. As explained by French J in Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks (2002) 122 FCR 494 at [30], the requirement for leave to appeal is not to be given mere lip service. Rather, it is a requirement which is to be given proper force and effect. Such a recognition will often, if not usually, require the application for leave to be dealt with separately from the hearing of the appeal, as Tamberlin J explained in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCA 448 at [19]. In any case, it appears that at the ex parte hearing on 17 November the Master ordered that the application for leave and the appeal be heard together, although this is not in the extracted order. Nevertheless, I do not understand the separation of the hearing of the application for leave to appeal and the appeal itself to be in issue. The matter has been presented to us in such a way that the application for leave and the appeal ought to be heard together and I will deal with them in that way.

(Page 17)

27 In procedural matters, the principles of case management must also be considered. There is a broad discretion vested in case managers for the effective control of the conduct of litigation and hence, it is accepted that instances in which appeals will be allowed to be brought from procedural directions are rare: see Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 at [33] and Johnson Tiles Pty Ltd v Esso Australia (2000) 104 FCR 564.

28 It is convenient to deal first with the plaintiffs' application in respect of the Master's order made on 17 November 2004 extending time for the defendants to file an application for leave to appeal so as to include 15 November 2004.

CACV 2 of 2005

29 It is necessary to expand a little more on what happened before the Master on 17 November. It is best that I set out the relevant part of the transcript (AB 247- 248):

"THE MASTER: Mr Gandini?

GANDINI, MR: Forthe applicant defendant, master. There will be no appearance from the other side.

THE MASTER: No.

GANDINI, MR: Sir, you dealt with this matter in part last Wednesday, and Mr Donaldson appeared as counsel.

THE MASTER: I did.

GANDINI, MR: And we understood there were some administrative orders to be made, but we were then advised - - -

THE MASTER: Look, this appears to have got completely out of control.

GANDINI, MR: Yes.

THE MASTER: The orders that I made were that the time for appealing should be extended to the date specified - I forget what date that was.

GANDINI, MR: The time for an application for leave to appeal was extended, yes.

(Page 18)

THE MASTER: Yes, right. The application for leave to appeal should then have been lodged. There seems to have been some doubt as to just what form the application should have taken, but I assume that that has now been done and been complied with, has it?

GANDINI, MR: Yes.

THE MASTER: Have the time limits been complied with?

GANDINI, MR:The application for leave to appeal, the applicant says, was lodged on the 12th, however the registry effectively refused to take it until the morning of the 15th and didn't formalise it until then. So - - -

THE MASTER: Are you going to run into a problem with the respondents over that?

GANDINI, MR: I understood, no, from Wednesday - I mean, I wasn't here Wednesday. I understand that a short time was allowed to extend the time.

THE MASTER: Right.

GANDINI, MR: The 12th was the union getting cheques and so on and there then appeared to be a bit of a problem, but I'm not sure really what happened.

THE MASTER: But it was lodged on the 15th?

GANDINI, MR: Indeed, indeed - yes, indeed.

THE MASTER: Okay. Then perhaps what I should do - - -

GANDINI, MR: Is perhaps amend the time, yes.

THE MASTER: - - - is amend the order allowing the extension of time to refer to the 15th.

GANDINI, MR: Yes, the 15th or the 16th. Yes."

30 The plaintiffs say the defendants' solicitor failed to comply with his duty of candour as an officer of the court, by not telling the Master that the reason there would be no appearance for the plaintiffs was because notice had not been given to them and they were unaware of the application for a further extension. I agree. But the question is whether

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the Master's discretion miscarried and resulted in unfairness or injustice to the plaintiffs.

31 Whenever a party has not had the opportunity of being heard, the discretion in relation to that party must have miscarried and there must necessarily have been unfairness or injustice. The plaintiffs lost the opportunity of putting their submissions before the Master, through no fault of their own. Since they were not heard, the plaintiffs are entitled as of right to have the Master's decision set aside.

32 Nevertheless, although I would grant leave to appeal and allow the appeal, it is not necessary to remit the matter to the Master. All of the considerations put before this Court suggest that it would be appropriate to grant the extension in any event. The first extension had been granted only days before; the date to which it should run had been suggested by the defendants' counsel, without demur from counsel for the plaintiffs, and it is difficult to accept there would have been any opposition at that point to the extension being to the Monday. Further, the application had in fact been filed by 15 November so that on 17 November the defendants were not seeking an extension to allow them to do something still not done. Accordingly, I would order that the time for the defendants to file their application for leave to appeal be extended to 15 November 2004.

FUL 173 of 2004 – Defendants' application for leave to appeal the Master's order of 9 August 2004

33 The grounds of appeal in relation to this application are:

1. The Master erred in his discretion to refuse the defendants' application to adjourn the hearing on the basis of the evidence before him;

2. Having so erred, the Master erred in refusing the defendants leave to amend the defence in terms of the minute, being relevantly pars 64 to 66.

34 In relation to ground 1, it is difficult to see any basis upon which it could be argued that the Master's order refusing the adjournment is in any way attended with sufficient doubt to justify a grant of leave. The decision to grant or refuse an application for adjournment is clearly discretionary:

"To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this

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would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is a strong reason for believing that an injustice has resulted." (Myers v Myers [1969] WAR 19 at 21 per Jackson J).

35 The defendants' solicitor had some six to seven weeks' notice of the hearing date for the application, during which time he chose to engage in continued and inconsequential correspondence, rather than filing an application for adjournment in the proper form or instructing different counsel. As the Master pointed out, there was no reason why counsel could not have prepared an outline of submissions and conferred with Mr Gandini to prepare him to argue it in the event that the adjournment was not granted on the day of the hearing. There were several options available to the defendants' solicitors, all of which would have been more appropriate than that which they chose to pursue. The Master had regard to the delay that would occur before the matter could be dealt with again and the inconvenience and expense to the plaintiffs that such delay would cause. The Master also considered the fact that the matter was commenced in 2001 and was still a long way from final disposition and that the point in issue was narrow and discrete and that written submissions could have adequately dealt with the matter. In summary, the Master took all the relevant considerations into account. It is not suggested that he failed to have regard to any relevant consideration in refusing the adjournment. Hence, it is difficult to see that his discretion miscarried in any way. Accordingly, I would refuse leave to appeal on ground 1.

36 The substantive issue to be decided in relation to ground 2 is whether the Master erred in refusing the defendants leave to amend the defence in terms of the minute; namely, by adding pars 64 to 66.

37 Paragraphs 64 to 66 of the re-amended defence dated 12 May 2004 essentially invoke s 166A of the Workplace Relations Act 1996 (Cth) as a defence. Paragraph 64 appeared as follows (AB 91):

"64. Further the first and second defendants say that:

(a) They are organizations of employees within the meaning of s166A of the Workplace Relations Act 1996

(b) All matters alleged in the Statement of Claim in respect of the first and second defendant[s] was

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[sic: were] conduct of the first and second defendants acting in their capacity as organization of employees in contemplation and furtherance of claims that were the subject of an industrial dispute within the meaning of s166A of the Workplace Relations Act 1996

(c) all action [sic] pleaded in the Statement of Claim are actions in tort under the law of Western Australia

(d) the requirements of s166A(3)-(6) of the Workplace Relations Act 1996 have not been complied with by the plaintiffs or any of them

(e) By reason of such matters this action may not be brought by the plaintiffs against the first and second defendants."

38 Paragraphs 65 and 66 plead similarly in respect of the third through eleventh defendants as either officers, employees or members of organisations of employees within the meaning of s166A.

39 Section 166A of the Workplace Relations Act is entitled "Restriction on certain actions in tort" and, insofar as it is relevant here, states:

"(1) Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission:

(a) has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or

(b) has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct.

…

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(3) A person who wants to bring an action in tort in respect of conduct to which subsection (1) applies may give written notice to a member of the Commission or a Registrar stating that the person wants to bring the action.

(4) If a notice under subsection (3) is given to a Registrar, he or she must tell a member of the Commission as soon as practicable.

(5) If such a notice is given, the Commission must take immediate steps to try, or to continue to try, by the exercise of its powers under this Act, to stop the conduct.

(6) If:


(a) after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or

(b) the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or

(c) the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;

the Commission must immediately certify in writing to that effect."

40 An "organisation of employees" as referred to in s 166A refers to an "organisation" as defined in s 4 - "an organisation registered under the Registration and Accountability of Organisations Schedule", which is also defined in s 4 as being Sch 1B. The relevant provision of Sch 1B is s 18, which outlines the types of associations that may apply for such registration. Section 18(2) by reference to subs (3), excludes associations which have members that are deemed employees under certain State laws, including the Industrial Relations Act 1979 (WA), where the association

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is not effectively representative of members who are employees under the Workplace Relations Act.

41 Section 4 also defines an "industrial dispute" as:

"(a) an industrial dispute (including a threatened, impending or probable industrial dispute):

(i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the relationship between employers and employees; or


(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a) …"

42 Because the first defendant is registered pursuant to the Industrial Relations Act, it cannot be registered under Sch 1B. Hence, the defendants have conceded, albeit at a late stage, that the plea in relation to s 166A of the Workplace Relations Act is defective insofar as it refers to the first defendant. The plaintiffs' solicitors brought this deficiency to the attention of the defendants' solicitors in a letter dated 20 May which followed the filing of the re-amended defence. They maintained this position in their written submissions dated 13 July filed in support of their application to strike out those paragraphs. It is submitted on behalf of the defendants that leave be given to replead that part insofar as it refers to the first defendants.

43 It should be noted that leave to amend the defence by adding pars 64 to 66 was required by O 21 r 4 - r 5 of the Rules. Albeit they were ultimately within time (following two extensions, the second being a springing order) the defendants did not file their re-amended defence in response to the plaintiffs' amended statement of claim filed 30 January 2004 until 12 May. The plaintiffs assert that the amendments go beyond that which was necessitated by the previous amendments to the statement of claim. Such leave was neither sought nor granted.

44 It is also necessary to consider whether leave ought to be granted to add pars 64 to 66 at such a late stage, given that they raise an entirely new defence.

45 The grant or refusal of leave to amend is a matter of discretion: Baume v Commonwealth (1906) 4 CLR 97 at 114. This discretion must be exercised in accordance with the case flow management principles of

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O 1 r 4A and r 4B and O 29 of the Rules. When considering whether it is just to grant belated amendments the court must also consider prejudice to the public interest and prejudice to the opponent as well as prejudice to the applicant: Tony Sadler at 335, 336. In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 the High Court held that no principle of case management can be allowed to supplant the attainment of justice, which is the ultimate aim of the court. As cited by Jenkins J in Royal v Alcoa of Australia Ltd [2004] WASCA 269 at [83]–[84]:

"In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155 per Dawson, Gaudron and McHugh JJ their Honours said:

'Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the parties seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the Court, was in this case a relevant consideration but it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.'

In the course of their judgment their Honours said that the principles established in Cropper v Smith (1884) 51 LT 729 and accepted by the High Court in Clough & Rogers v Frog (1974) 4 ALR 615 were still good law. In Cropper v Smith (supra), Bowen LJ said:

'Now I think it is a well established principal 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 can be 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 not regard such amendment of a matter of favour or of grace.'"

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46 In Boyes v Colins (2000) 23 WAR 123 the Court discussed the relationship between the principles set out in Queensland v JL Holdings and the criteria enunciated in Tony Sadler:

"In [Queensland v JL Holdings] the learned Judge, who was managing the proceedings, refused leave to add a defence, which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead. Her Honour considered that maintaining that date was a more pressing consideration than a party's right to present a further defence. Dawson, Gaudron and McHugh JJ (at 154) pointed out that:

'It is not apparent that any complex issues of fact are raised by the amendments sought, but even if they are, in a hearing that is estimated to last some four months, they must surely be able to be accommodated.'

Their Honours concluded that there was nothing to indicate that costs would not have been an adequate remedy for prejudice caused by the amendment sought. Thus, the case management principles applied by the learned Judge contributed nothing to the administration of justice. There would be no waste of court time, no witnesses would be inconvenienced, the plaintiff would not be prejudiced and costs were an adequate remedy. It is in that context that their Honours observed that 'the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.'

But there are instances when principles of case management are highly relevant to the attainment of justice and I do not think, with respect, that their Honours intended by their remarks in Queensland v JL Holdings Pty Ltd to indicate that in those circumstances case management principles were to be ignored."

(per Ipp J, Seaman and Wallwork JJ agreeing, at [71] - [72]).

47 This matter was commenced on 28 September 2001. The defendants offer no explanation for the considerable delay in raising the statutory defence under s 166A. However, the matter is still far from being entered for trial. There is yet to be discovery in relation to special damages. Although the progression of this matter is undoubtedly desirable, I am not of the opinion that leave to amend by adding pars 64 to 66 necessarily ought to be refused on the basis of the lateness of the amendment. Further,

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there is nothing to indicate that costs would not be an adequate remedy for any prejudice caused to the plaintiffs by the amendment.

48 It is further submitted on behalf of the plaintiffs that leave to amend ought not to be granted because pars 64 to 66 raise no reasonable cause of defence and pars 64(b), 65(b) and 66(b) are vague, embarrassing and not adequately particularised.

49 O 20 r 19 grants power to strike out such pleadings. It is well recognized that there is a need for caution in exercising this power to ensure that the party whose plea is attacked will not be improperly deprived of an opportunity for the trial of their case by the appointed tribunal: see General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 130. The general principles to be applied were summarised in Mickelberg v 6PR Southern Cross Radio Pty Ltd & Ors [2002] WASCA 270 at [28]-[29] and Kirika v Zurich Australian Insurance Pty Ltd & Anor [2002] WASCA 233 by Wheeler J at [6] (Murray and Miller JJ agreeing):

"• the rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course;

• on the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable;


…

• the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed;

• as a general rule a plaintiff is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out; and

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• a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie."

50 The plaintiffs' solicitors sought particulars of pars 64(b), 65(b) and 66(b) in a letter to the defendants' solicitors dated 8 July (AB 107). Such particulars were never provided and counsel for the defendants concedes that they are required. Counsel also states that particulars can now be provided within a short period of time.

51 Isaacs J described the function of particulars in R v Associated Northern Collieries (1910) 11 CLR 738 at 740 - 741:

"I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms 'surprise,' but he is not entitled to be told the mode by which the case is to be proved against him."

52 Further, it is submitted on behalf of the plaintiffs that because pars 64(b), 65(b) and 66(b) plead at least four separate elements, namely, "matters", "conduct", "claims" and an "industrial dispute", the plea is vague and embarrassing.

53 The defence raised in pars 64 to 66 of the re-amended defence turns on whether the industrial dispute extended beyond the limits of any one State, namely, Western Australia. The meaning of "industrial dispute" as defined in s 4 of the Workplace Relations Act was discussed by McHugh J in Eastman v The Queen (2000) 203 CLR 1 at 46 - 47:

"If asked in [1900] what an industrial dispute extending beyond the limits of any one State meant, most people would probably have said that it meant strikes in more than one State by workers in the same industry. They would have had in mind the maritime and shearers strikes of the 1890s. But we now perceive that 'industrial disputes', in their context, easily cover paper disputes arising out of the service of logs of claims on employers in more than one State for wages and conditions for numerous categories of employment in disparate industries."

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54 In alleging no reasonable cause of defence, the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a defence. Rather, the question is whether it would be open to the defendant upon the pleadings to prove facts at the trial which would constitute a cause of defence: see Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414; Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631. In this context, "reasonable" means reasonable according to law and hence, if the facts pleaded conceivably give rise to relief or a defence, then the cause of action or defence should be held to be reasonable.

55 The plaintiffs submit that the alleged conduct pleaded in the amended statement of claim does not raise the issue of the industrial dispute extending beyond the limits of Western Australia. In the absence of any particulars, the defendants' s 166A pleading fails to plead the necessary material facts giving rise to the statutory defence under s 166A of the Workplace Relations Act, particularly in failing to plead how the industrial dispute extended beyond the limits of Western Australia. It is vague and embarrassing. The Master was right to strike it out. However, pars 64 to 66 do disclose a defence that is open to the defendants in law and, potentially, in fact. I am unable to conclude that an arguable statutory defence is not available to the defendants. In this respect, the decision of the Master insofar as he did not give leave to re-plead those paragraphs is attended with sufficient doubt to justify a grant of leave.

56 Additionally, it is necessary to consider whether a substantial injustice would be done to the defendants if the decision were to remain unreversed. This requires a balancing of the parties' interests, although the requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave: Wilson v Metaxas at 294.

57 Keeping in mind the principles outlined in Kirika, the defendants ought not to be deprived of their potential right to such a defence. While I acknowledge that reversing the Master's decision would cause inconvenience to the plaintiffs who, by all accounts, have acted properly, in balancing the parties' interests, the potential injustice to the defendants is far greater.

58 Counsel for the defendants spoke at some length on the failure of the defendants' solicitors to re-plead pars 13 to 41 of the re-amended defence, notwithstanding that they were granted leave to do so and put on notice by the plaintiffs' solicitors that they were instructed to file a motion for

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judgment in respect of those parts of the amended statement of claim if those paragraphs were not re-pleaded. It appears that the defendants' solicitors' reason for failing to replead those paragraphs was that they had been instructed to appeal the Master's orders of 9 August. However, it has never been disputed that following the amendments to the statement of claim those paragraphs needed re-numbering and hence, re-pleading. Further, that part of the Master's order of 9 August striking out pars 13 to 41 and giving leave to replead is not the subject of any application for leave to appeal. Regardless of whether any other appeal was being pursued or not, at least that part of the Master's order ought to have been complied with or an extension of time in which to re-plead sought.

59 There is no formal application before this Court to extend the time in which the defendants have leave to re-plead those paragraphs.

60 It is on this basis that I would grant leave to appeal on ground 2, allow the appeal and give the defendants leave to replead pars 64 to 66, with particulars, within 14 days. I would refer the plaintiffs' notice of motion in CIV 2496/01 for judgment back to a Master for hearing.

61 In relation to costs, it appears that the entire proceedings before this Court was brought about primarily because of the defendants' inability to take simple steps within time, notify the plaintiffs of what they proposed to do, or to respond promptly and constructively to matters raised by the plaintiffs. Notwithstanding that the defendants have been in part successful, they should bear the entire costs of the appeal and I would order accordingly. I would be inclined to hear argument as to whether that should be on an indemnity basis.