Copley v Qantas Airways Limited

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Copley v Qantas Airways Limited [2025] FedCFamC2G 290

File number(s): SYG 1630 of 2022
Judgment of: JUDGE DOUST
Date of judgment: 28 February 2025
Catchwords: FAIR WORK – leave to amend – application to vacate trial dates
Legislation:

Fair Work Act 2009 (Cth) ss 190, 340, 340(1)(a), 340(1)(b), 343, 351, 352, 772(1)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 7.01, 14.01

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 176(2), 190

Court Procedures Rules 2006 (ACT)

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101

Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821

Expense ReductionAnalysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199; [2016] FCAFC 2
Division: Division 2 General Federal Law
Number of paragraphs: 67
Date of hearing: 26 February 2025
Place: Sydney
Counsel for the Applicant: Mr B Eurell
Solicitor for the Applicant: Mr S Kelly, Ashley Francina Leonard and Associates
Counsel for the Respondent: Mr R Dalton KC, with Mr N Burmeister
Solicitor for the Respondent: Ms K Srdanovic, Ashurst Australia

ORDERS

SYG 1630 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DAVID COPLEY

Applicant
AND:

QANTAS AIRWAYS LIMITED ACN 009 661 901

Respondent

ORDER MADE BY:

JUDGE DOUST

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed 24 February 2025 be dismissed.

2.The applicant has leave to amend [86] of Part G and Part H to the Form 2 in the manner of the draft attached to his application in a proceeding filed 23 February 2025, to include the comparators identified at paragraphs (a) to (f) and (k) to (r) thereto.

3.The application in a proceeding filed 23 February 2025 otherwise be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order 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).

REASONS FOR JUDGMENT

JUDGE DOUST:

BACKGROUND

  1. The applicant has filed two applications for interlocutory orders, including an order vacating the hearing dates, in circumstances where the final hearing in this matter is set down to commence in less than two weeks.  The…

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Details
Case
[2025] FedCFamC2G 290
Decision Date

CaseChat Overview and Summary

The applicant, Copley, and the respondent, Qantas Airways Limited, were engaged in a dispute relating to Copley's claim for unfair work practices. The matter was before the court for consideration of Copley's application for leave to amend his claim, as well as an application to vacate trial dates. Copley sought to add additional comparators to his claim, arguing that they had only recently become known to him. Qantas, on the other hand, argued that Copley was at fault for the delay in identifying these comparators, and that vacating the trial dates would be an undue hardship.

The court was required to decide whether Copley should be granted leave to amend his claim by adding the additional comparators, and whether the trial dates should be vacated. The court also had to consider whether Copley was at fault for the delay in identifying the additional comparators, and whether vacating the trial dates would be an undue hardship.

The court found that Copley was not entirely to blame for the delay in identifying the additional comparators, and that it was not apparent why the respondent had not produced the relevant documents earlier. The court also found that the applicant had an opportunity to take some step to flag its intention to rely on those examples earlier than now. However, the court held that Copley should be given leave to amend his claim by the addition of certain comparators, but not others. The court concluded that Qantas would be in a position to prepare its evidence, prior to the present hearing dates, in respect of any of the persons listed in [86] of the draft further amended pleading at (d) to (i), but that it would be impossible for the respondent to deal with (y) in the available time prior to the hearing. The court therefore proposed to grant leave to the applicant to rely on another combination of additional comparators, subject to further directions.

The court ordered that Copley be given leave to amend his claim by the addition of certain comparators, but not others. The court also ordered that the respondent be heard as to further directions to be made in light of the leave proposed to be granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After the applicant gave the notice to produce to the respondent, there ensued several months of disputation by correspondence about the applicant’s notice, commencing with the respondent’s letter of 26 September 2024 which is referred to above. I am unable to reach a conclusion against that background that the applicant is entirely to blame for the period it took to unearth the documents. In the final result, as set out above, the respondent agreed to orders for it to answer interrogatories, and for the production of documents responsive to category [34], notwithstanding its earlier objections, and did not, as it had threatened, move to set aside the notice to produce. The respondent did not ultimately maintain that objection, and produced documents by reference to a category. It is not apparent why, in those circumstances, that should not have occurred earlier. I do not attribute the applicant’s inability to identify the comparators until now to the applicant.CONCLUSION The applicant should be given leave to amend [86] of his claim by the addition of what appears in the draft further amended pleading at:(1)(a) and (b) – those persons had been identified anonymously in the amended claim filed 27 July 2023, and were later identified in the parties’ evidence. Their circumstances have been addressed in the respondent’s evidence;(2)(c) to (f) – those persons are pilots who were named in the answer to the interrogatories dated 7 February 2025. The respondent has indicated in respect of that group that it is able to file evidence concerning their circumstances prior to the present hearing dates;(3)(k) to (r) – those persons are pilots whose identity and circumstances the applicant’s counsel submitted became apparent to the applicant following production of documents on 7 February 2025. On the basis of the applicant’s submissions, the persons named in [86 (j), and (s) to (y) inclusive were revealed to the applicant by documents produced to it earlier in the process of disclosure. They appear to have been disclosed to the applicant in December 2024, by the production of documents in response to categories [33] and [31], respectively. The applicant had an opportunity to take some step to flag its intention to rely on those examples earlier than now. The applicant should not have leave to amend to include those putative comparators. Counsel for the respondent indicated that Qantas would be in a position to prepare its evidence, prior to the currently appointed hearing dates, in respect of any of the persons listed in [86] of the draft further amended pleading at (d) to (i). He indicated positively that it would be impossible for the respondent to deal with (y) in the available time prior to the hearing and otherwise was unable to positively indicate that the respondent would be in a position to prepare its response if the applicant was to be given leave to rely on another combination of additional comparators. I will hear the respondent as to further directions to be made in light of the leave I propose to grant the applicant.

Ratio Decidendi

Legal Principle Established

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