BOWLBY v Thinking Synergy Pty Ltd - [2012] FMCA 1061

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOWLBY v THINKING SYNERGY PTY LTD & ANOR

[2012] FMCA 1061

INDUSTRIAL LAW – Procedural orders – application for amendment to defence – whether amendment futile – whether applicant an independent contractor or employee – alleged misbehaviour of applicant – application as to proposed unrestricted amendment dismissed.

Fair Work Act 2009, s.369

Barker v Commonwealth Bank of Australia [2012] FCA 942
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Carter v Dennis Family Corp[2010] VSC 406
Commonwealth v Verwayen (1990) 170 CLR 394
Hussein v Westpac Banking Corporation (1995) 59 IR 103
Malik v Bank of Credit & Commerce International SA (in liq); Mahmud v Bank of Credit & Commerce International SA (in liq); [1998] AC 20
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359

Applicant:

BARDIE BOWLBY

First Respondent:

THINKING SYNERGY PTY LTD

Second Respondent:

CATHY VELENTZAS

File Number:

MLG 481 of 2012

Judgment of:

Hartnett FM

Hearing date:

7 November 2012

Delivered at:

Melbourne

Delivered on:

16 November 2012

REPRESENTATION

Counsel for the Applicant:

Ms Felman

Solicitors for the Applicant:

Lander and Rogers Lawyers

Counsel for the First Respondent:

Mr Champion

Solicitors for the First Respondent:

M A Lawyers

Counsel for the Second Respondent:

Mr Champion

Solicitors for the Second Respondent:

M A Lawyers

ORDERS MADE ON 7 NOVEMBER 2012

THE COURT ORDERS THAT:

On or before 10 November 2012, the Applicant has leave to file with the Court and serve on the First and Second Respondents an Amended Claim in the form of the proposed Amended Claim provided by the solicitors for the Applicant to the solicitors for the First and Second Respondents on 5 November 2012.
On or before 7 December 2012, the Applicant is to file with the Court and serve on the First and Second Respondents any Reply to the Amended Defence.
Any request by the parties for further and better particulars of any pleadings of any other party is to be made by 14 December 2012.
The parties are to respond to any request for further and better particulars made by any other party by 21 December 2012.
On or before 30 November 2012, the Applicant is to file with the Court and serve on each other party an affidavit of documents regarding the following categories of documents:
(a)Documents which either disclose steps taken by the Applicant to mitigate her loss or income she has earned since 11 January 2012; and
(b)Documents sufficient to enable the Respondents to understand the business activities of Whereforeart and the source or sources of Whereforeart's business income declared in the tax returns discovered by the Applicant in these proceedings.
The parties to complete discovery of any documents discovered pursuant to order (5) above, including inspection, by 7 December 2012.
On or before 21 January 2013, the Applicant is to file with the Court and serve on the First and Second Respondents witness statements setting out the evidence on which she intends to rely.
On…

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: [2012] FMCA 1061
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the case of BOWLBY v Thinking Synergy Pty Ltd, the dispute involves an application by the applicant to amend the claim and for directions concerning the conduct of the trial. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the applicant should be granted leave to amend the claim and if so, what directions should be given regarding the conduct of the trial.

The court considered whether the proposed amendments to the claim would significantly alter the case's nature and whether the respondents would be prejudiced by the amendments. Additionally, the court needed to determine whether the proposed directions for the trial were appropriate and would facilitate a fair and efficient trial. The court noted that the proposed amendments to the claim did not fundamentally change the case's nature and that the respondents would not be prejudiced by the amendments. The court also found that the proposed directions for the trial were reasonable and would assist in ensuring the matter was heard efficiently.

Accordingly, the court granted the applicant leave to file an amended claim and issued directions for the conduct of the trial. The applicant was required to file and serve the amended claim by a specified date, and the respondents were permitted to file and serve an amended defence, with certain limitations. The parties were also required to exchange witness statements and file affidavits of documents. The matter was listed for a final hearing, and the parties were given liberty to apply for further orders if necessary.

The final orders included specific timelines for filing and serving amended pleadings, witness statements, and affidavits of documents. The court also set a date for the final hearing and granted the parties liberty to apply for further orders. The respondents were ordered to pay the costs of the application to amend the defence.

Orders

Orders of the court

On or before 10 November 2012, the Applicant has leave to file with the Court and serve on the First and Second Respondents an Amended Claim in the form of the proposed Amended Claim provided by the solicitors for the Applicant to the solicitors for the First and Second Respondents on 5 November 2012.

On or before 7 December 2012, the Applicant is to file with the Court and serve on the First and Second Respondents any Reply to the Amended Defence.

Any request by the parties for further and better particulars of any pleadings of any other party is to be made by 14 December 2012.

The parties are to respond to any request for further and better particulars made by any other party by 21 December 2012.

On or before 30 November 2012, the Applicant is to file with the Court and serve on each other party an affidavit of documents regarding the following categories of documents:

(a) Documents which either disclose steps taken by the Applicant to mitigate her loss or income she has earned since 11 January 2012; and

(b) Documents sufficient to enable the Respondents to understand the business activities of Whereforeart and the source or sources of Whereforeart's business income declared in the tax returns discovered by the Applicant in these proceedings.

The parties to complete discovery of any documents discovered pursuant to order (5) above, including inspection, by 7 December 2012.

On or before 21 January 2013, the Applicant is to file with the Court and serve on the First and Second Respondents witness statements setting out the evidence on which she intends to rely.

On or before 18 February 2013, the First and Second Respondents are to file with the Court and serve on the Applicant witness statements setting out the evidence on which they intend to rely.

On or before 6 March 2013, the Applicant is to file with the Court and serve on the First and Second Respondents any material in reply on which she intends to rely.

10.

The matter is listed for final hearing on 26 March 2013 at 10.00am for 3 days.

11.

The parties have liberty to apply.

ORDERS MADE ON 16 NOVEMBER 2012

THE COURT ORDERS THAT:

On or before 30 November 2012, the First and Second Respondents have leave to file with the Court and serve on the Applicant an amended defence in the form of the proposed amended defence annexed to the First and Second Respondent’s application to this Court dated 1 November 2012, save for the amendments to paragraphs 53(b) to 53(d) and 53A to 53F.

The First and Second Respondents pay the costs of the application to amend the defence as agreed and failing agreement as fixed by the Court on the final hearing of the matter.

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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