Conradsen v Carpentaria Land Council Aboriginal Corporation
[2021] FedCFamC2G 154
•11 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conradsen v Carpentaria Land Council Aboriginal Corporation [2021] FedCFamC2G 154
File number(s): BRG 6 of 2021 Judgment of: JUDGE EGAN Date of judgment: 11 October 2021 Catchwords: PRACTICE AND PROCEDURE – Application for re-joinder of parties removed from the proceeding by order of another Judge – importance of case management principles being adhered to – application for re-joinder dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 230. Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Division: Division 2 General Federal Law Number of paragraphs: 6 Date of last submission/s: 11 October 2021 Date of hearing: 11 October 2021 Applicant: The Applicant appearing on his own behalf Counsel for the Respondent: Ms S. Moody Solicitor for the Respondent: Thynne & McCartney Lawyers ORDERS
BRG 6 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: KIMM OLE CONRADSEN
Applicant
AND: CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION ABN 99 121 997 933 INDIGENOUS CORP NO. 268
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
11 OCTOBER 2021
IT IS ORDERED THAT:
1. Pursuant to s. 230(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the residential address of the Applicant in this matter must not be published or otherwise disclosed, and that any reference to such address on the Court file be appropriately redacted.
2. Paragraphs 2 and 3 of the Application in a Case filed on 30 September 2021 be dismissed.
3. The costs of and incidental to today’s hearing be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE EGAN:
Before the Court today is an Application in a Case filed by the Applicant on 30 September 2021. The orders sought in such Application in a Case were as follows:
“(1). The residential address details of the Applicant be suppressed.
(2). The Applicant to amend the Statement Claim so that the following parties are re-joined as Respondents:
(i). RACHEL AMINI-YANNER (CEO)
Respondent #2
(ii). BRONWYN MORGAN (Human Resources Officer)
Respondent #3
(iii). PATRICIA STEINECK (Manager of Corp Services/ Deputy CEO)
Respondent #4
(iv). KEVIN MURPHY (Principal Legal Officer/ Line Manager)
Respondent #5
(3)The Applicant to amend the pleadings in the Statement of Claim to reflect Minute of Order ‘(2)’ in relation to and, to give effect to the following in the Fair Work Act 2009:
(a). ss.340, 341, 342, 343,345 Work Place Rights of Chapter 3, Division 3, being provisions in respect of Protection, the Meaning of Workplace right and adverse action, Coercion and, Misrepresentation, and;
(b)The Compliance and enforcement Division 2 of Chapter 4 in relation to Applications for Orders for Civil Remedy Provisions, and;
(c). ss.550, 557, 557A, 557B, 557C General Provisions relating to civil remedies and pecuniary penalties of Division 4 of Chapter 4, being provisions in respect of Involvement in contravention, course of conduct, Serious contravention, liability of bodies corporate for serious contravention, Presumption where records not provided.”
Counsel for the Respondent has today indicated that the Respondent has no objection to the making of an order for suppression of the applicant’s residential details. The Court is minded to make an order in the terms of paragraph one (1) of the applicant’s Application in a Case.
As to the order sought in paragraph (2) of the applicant’s Application in a Case, the applicant seeks to re-join four (4) respondents against whom the applicant’s claims were dismissed by order of His Honour Judge Vasta on 15 February 2021. The applicant failed to seek leave to appeal such order. Order two (2) of the orders of His Honour Judge Vasta made on 15 February 2021 provided as follows:
“2.That the proceedings be dismissed against the Second, Third, Fourth and Fifth Respondents.”
The Court is not minded to accede to the applicant’s application for re-joinder of the named proposed respondents in paragraph (2) of the Application in a Case, particularly in circumstances where the joinder of such respondents would necessarily involve the vacation of the listed hearing dates in November 2021. The Court relies upon the judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at paragraphs [31], [32], [35], [71], [82], [87], [98], [105] and [114] where it was said as follows:
“[31]The amendment allowed in the present case could only be supported as an exercise of the discretion under r 502. On no view was it required by r 501(a). The requirement to make amendments for the purpose of deciding "the real issues in the proceeding" does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself.
[32]The requirement under r 501(c) to avoid a multiplicity of proceedings is to be understood as operating within the framework of an ordered progression to a fixed trial date. It does not oblige the court to accept the addition of new claims at the last moment before trial, on the basis that if they are not allowed there might be subsequent proceedings in which those claims are raised. The steps which r 501(c) requires to be taken to avoid multiple proceedings are "all necessary amendments". The Court had no basis for inferring that, absent the amendments, there would be further proceedings.
…
[35]It might be said that the adjournment effected by the primary judge's decision to entertain the amendment application and to allow written submissions to be filed and evidence to be put on, and the subsequent delay in his decision, rendered academic any concern about further waste of court resources or inefficiencies flowing from the amendment ultimately being allowed. It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice. This factor was not taken into account by the primary judge, nor by the Court of Appeal. The discretion of the primary judge miscarried and the Court of Appeal was in error in not allowing the appeal. In the circumstances, giving proper weight to the factors to which I have referred, the application for the amendment should have been refused.
[71]The words "the real issues in the proceeding" in r 501(a) obviously refer to issues raised, perhaps unclearly, in the pleadings at the time of the application for leave to amend. The "real" issues may also extend beyond the pleadings, as cases concerned with the purpose stated in the original Rules show. But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.
…
[82]The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it.
…
[87]It is not immediately obvious how ANU could have dealt with an Anshun point in the further proceedings to which it refers. Further consideration of these matters is not required. It is sufficient for present purposes that ANU did not seek to show this Court how it might have done so. It is therefore not demonstrated that the amendment proposed was necessary to avoid multiple proceedings.
…
[98]Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
…
[105]The primary judge was in error in failing to recognise the extent of the new claims and the effect that amendment would have upon Aon. His Honour was in error in failing to recognise the extent to which the objectives of r 21 would not be met if the amendments were allowed. The known ill‑effects of a delayed determination, which informed the purposes and objectives of the Rule, were present. Rule 502(1) read with r 21 did not provide an unfettered discretion to grant leave to amend. The objectives of r 21 were to be pursued in the exercise of the power conferred by r 502(1). The fact that ANU's new claims were arguable was not itself sufficient to permit amendment and could not prevail over the objectives of r 21. A "just" resolution of the proceedings between ANU and Aon required those objectives to be taken into account.
…
[114]Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.”
Parties to a proceeding are required to undertake steps to progress the proceeding to trial. The parties are expected to comply with orders and, at the earliest possible time, make any interlocutory application for leave to appeal which might cause those orders to be altered or varied. In this matter, the applicant had the opportunity to exercise his right to appeal the order of His Honour Judge Vasta made on 15 February 2021, but he failed to do so. Insofar as the applicant failed to exercise such right, the applicant has foregone the opportunity to seek to re-join those parties, because the making of an order re-joining those respondents would be contrary to the effect of not only the orders made on 15 February 2021, but also subsequent case management orders made by this Court. The order sought in paragraph two (2) of the applicant’s Application in a Case is accordingly dismissed.
As to the order sought in paragraph three (3) of the Application in a Case, such order seeks leave for the applicant to appropriately amend his pleadings in the event that the Court was to grant the applicant’s application contained in paragraph two (2) of the Application in a Case. In the light of the Court’s findings in relation to the order sought in paragraph two (2) of the Application in a Case, the order sought in paragraph three (3) of the Application in a Case is dismissed.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 15 October 2021
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