Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd - [2012] FMCA 1269

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v ENDEAVOUR COAL PTY LTD

[2012] FMCA 1269

PRACTICE & PROCEDURE – Late amendment to claim.

Federal Magistrates Court Rules 2001, r.1.03

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Applicant:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Respondent:

ENDEAVOUR COAL PTY LTD (ABN 38 099 830 476)

File Number:

SYG 1373 of 2011

Judgment of:

Cameron FM

Hearing dates:

31 January 2012

Date of Last Submission:

31 January 2012

Delivered at:

Sydney

Delivered on:

31 January 2012

REPRESENTATION

Counsel for the Applicant:

Ms C. Howell

Solicitors for the Applicant:

Mr A. Thomas, Construction, Forestry, Mining & Energy Union

Counsel for the Respondent:

Mr S.E.J. Prince

Solicitors for the Respondent:

Ashurst

ORDERS

The applicant have leave to amend its Form 4.
The costs of and incidental to the amendment be reserved.
The matter be listed for argument on the respondent’s application for costs of the amendment on 28 February 2012 at 9.30am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1373 of 2011

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

And

ENDEAVOUR COAL PTY LTD (ABN 38 099 830 476)

Respondent

REASONS FOR JUDGMENT

These proceedings involve a Mr McDermott, an employee at the respondent’s mine, who took certain leave and, it would seem, was not always present at work when the respondent wanted him to be and as a result was, it is said, removed from his weekend shift and rostered to work weekday shifts. This happened on two occasions, most recently in early 2011. These proceedings were commenced on 30 June 2011 and relevantly raise issues concerning whether adverse action was taken by the respondent against Mr McDermott for a prohibited reason or reasons.
The matter is part-heard, evidence having been taken on 2, 3 and 15 November 2011. As a result of those days of hearing it was foreshadowed at the end of 15 November 2011 that the applicant wished to expand its case to raise an additional issue. That issue turned on an agreement which Mr McDermott signed in November 2010 which, it is submitted, was a condition precedent to him returning to the weekend shift which he wished to work.
The applicant filed an application in a case on 23 November 2011 and seeks to amend its Form 4 claim form by alleging:
The respondent in November 2010 required Mr McDermott to sign a document headed … Agreement Between Alan McDermott And Endeavour Coal Pty Ltd as a precondition to working on weekend day shift.
The respondent opposes the application to amend and the matter has come on for hearing today to determine whether the applicant should be granted leave to amend in the manner sought. A further amendment is also sought but that is not the subject of controversy today, presumably on the basis that it was clearly articulated by the applicant at earlier points in the proceedings.
I am satisfied that the matter which the applicant wishes to raise now was not raised in the relevant terms prior to 15 November 2011. The considerations which guide the exercise of my discretion in this case were discussed by the High Court in Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175. The plurality made a number of points:
a)the conduct of litigation is not merely a matter for the parties but it is also one for the Court. The need to avoid disruptions in the Court’s lists with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard is a matter relevant when the Court comes to exercise its discretion to permit an amendment (at 211 [93]);
b)when considering an application such as this, concern must be had not just to the applicant but also to the requirement that the Court do justice to all litigants. It may be just when an adjournment is sought, if for instance an amendment would result in an adjournment, for the Court to take into account other litigants and not just the parties to the litigation of question (at 212 [94] and [95]);
c)it should also be taken into account that costs are not always a sufficient compensation for the vacation of a hearing were that to be necessary. For instance, I am entitled to take into account the strain which litigation places upon litigants, including the employees of corporate litigants (at 213-214 [99] and [100]);
d)much may depend upon the point at which the litigation has reached, relative to a trial, when the application for an amendment is made. There may be cases where it can properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for the application in question, having regard to the other party and the other litigants awaiting trial dates (at 214-215 [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at 215 [103]);
f)all the matters relevant to the exercise of the power should be weighed. The fact of substantial delay, wasted costs and the concerns of case management will assume importance in such circumstances (at 217 [111]); and
g)where a party has had sufficient opportunity to plead his or her case it may be necessary for the Court to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the opponent and to other litigants. (at 212 [94]).
Also, r.1.03 of the Court’s rules includes a requirement that the parties assist the Court by avoiding undue delay, expense and technicality. Much has been said in other cases of the streamlined procedures and efficient nature of this Court and certainly it is this Court’s aim to move things through as quickly as possible.
The questions I have to address in dealing with this application in a case commence, it seems to me, with the explanation given for the late making of the application for an amendment. With disarming frankness, Ms Howell, who appears for the applicant, essentially said that it was something which had only come to mind during the running of the case. There is no more complicated explanation for the delay and the fact that it has a straightforward explanation of that nature is something which has to be weighed against the other matters which I have to consider.
Those other matters may be paraphrased as the prejudice to the respondent in these proceedings, any prejudice to other litigants in the Court’s list and any potential prejudice to the interests of the administration of justice. The respondent has submitted that it may need to cross-examine Mr McDermott, whose evidence is now concluded, but I confess that I am not confident that any cross-examination which might be made of Mr McDermott, particularly along the lines which were foreshadowed, would take the matter very far. On the other hand, I have no doubt that were the amendment to be permitted, the respondent would need to adduce further evidence from its employees, although, it seems to me that any evidence which the respondent might feel required to adduce would be reasonably narrow in scope. In this regard, I note that it was not suggested by the respondent that any necessity to adduce additional evidence would mean that the hearing dates set aside for this matter later in this month would need to be adjourned or vacated. It has been submitted that the respondent has been prejudiced because it has shown its hand through its cross-examination, but I admit that I found that point somewhat elusive in the context of this comparatively narrow point. It seems to me that any cross-examination of Mr McDermott would be of comparatively narrow compass and not such as to be much affected by the cross-examination which has already taken place.
As to other litigants, it remains to be seen if any further hearing dates will be necessary if the amendment were to be granted but, as I have already said, it was not suggested that the hearing later this month would need to be vacated. The only question would be whether or not an additional day or days would have to be found in the list somewhere else, not that the hearing dates later this month would be wasted.
Turning to the question of the interests of the administration of justice, I take note of the lateness of the application to amend and the fact that it was not foreshadowed until after the applicant closed its case. This is very unfortunate but it is not something which seems to me to be likely to unduly affect the respondent. The applicant has indicated that it would not propose to adduce any additional evidence and the evidence which it has adduced so far would be the evidence on which it would have to rely in respect of the proposed amendment. In this regard, I note that the applicant is not splitting its case, as the respondent submitted. The new ground will have to rise or fall, at least as to whether the conduct in question was adverse action and whether there were underlying facts which might ground a finding of prohibited motivation on the part of the respondent, on the evidence already adduced.
The real effect of the proposed amendment and the time at which it would enter the proceedings would be that the respondent would have to address a further reverse onus issue. In this regard, I admit that I have been concerned that the proposed amendment raises a civil penalty provision and that an amendment of that sort should not be made after the respondent has gone into evidence. However, I think that the respondent has not gone so far into its evidence that those concerns would prevent leave to amend being granted.
As to the explanation which has been given, it is not unknown for ideas to develop as a result of argument. If some things are not always thought of when they might have been then, although that is something which has to be weighed in the balance, it is not necessarily decisive.
I think that the interests of the administration of justice favour the granting of the amendment and the applicant being able to ventilate all its claims. Overall, I consider that the explanation for the delay is not such, when weighed in the balance with the desirability of the applicant having the opportunity to raise all its claims and the practical consequences of permitting the amendment, that the application to amend should be refused. Consequently, leave will be granted to make the amendment sought.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 8 August 2013