Crosthwaite v National Jet Systems Pty Ltd (No.2)
[2007] FMCA 1773
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROSTHWAITE v NATIONAL JET SYSTEMS PTY LTD (No.2) | [2007] FMCA 1773 |
| INDUSTRIAL LAW – Objections to affidavit evidence – amendment to particulars of claim – case management – necessity to do justice – adjournment necessary. |
| Federal Magistrates Act 1999 (Cth), ss.14 and 42 Federal Magistrates Court Rules 2001 (Cth) |
| Mahmoud v Owner’s Corporation Strata Plan No 811 [2007] FMCA 131 State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 |
| Applicant: | KERREN MAREE CROSTHWAITE |
| Respondent: | NATIONAL JET SYSTEMS PTY LTD |
| File Number: | PEG 109 & PEG 122 of 2007 |
| Judgment of: | Lucev FM |
| Hearing dates: | 15 & 16 October 2007 |
| Date of Last Submission: | 16 October 2007 |
| Delivered at: | Perth |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.L. Hooker |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondent: | Mr H.J. Dixon SC |
| Solicitors for the Respondent: | EMA Legal |
ORDERS
The Applicant file and serve amended Particulars of Claim by 4.00 pm on 7 November 2007.
The Cross-Respondents file and serve affidavits for Messrs Carter, Park, Rayner and Whitbread by 4.00 pm on 7 November 2007.
The Respondent file and serve amended Particulars of Defence by 4.00 pm on 7 December 2007.
The Respondent file and serve any affidavits in relation to the amended Particulars of Claim by 4.00 pm on 7 December 2007.
The Respondent file and serve any affidavits in relation to the amendments to the Cross-Respondents’ Defence by 4.00 pm on 7 December 2007.
The matter be adjourned to 9.00 am on 13 December 2007 for directions, with leave granted to any party to appear by video-link provided 14 days notice is given to the Associate to Federal Magistrate Lucev.
The matter otherwise be adjourned to 10.15 am on 7, 8, 9, 10 and
11 April 2008 for hearing.Liberty to apply is granted to the parties in relation to any matters arising out of these orders on three (3) days notice.
Costs of 15 and 16 October 2007 and the costs thrown away by the adjournment of the hearing be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 109 & PEG 122 of 2007
| KERREN MAREE CROSTHWAITE |
Applicant
And
| NATIONAL JET SYSTEMS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
Objections to admissibility
The Court has before it various objections by the Respondent to the admissibility of the affidavit of Mr King affirmed on 5 October 2007, and also an application consequent upon the bases for those objections by the Applicant to amend the particulars of the Points of Claim.
If the objections to Mr King’s affidavit are upheld, the effect by and large would be that the Court will not hear evidence which in a general sense would be relevant to a claim of duress.
The Respondent, rightly, says that much of the evidence in Mr King’s affidavit does not relate to the particularised case; that is, the case particularised by the Applicant in its amended Points of Claim.
In this case, it is relevant to point out that that claim is quite particularised.
The Respondent does not dispute that much of the evidence to which it now objects might be relevant to a claim of duress, but says not this case as presently pleaded.
Case management and context of this case
The Applicant says that the approach that it seeks to adopt in this case; that is, to amend the particulars of claim at this stage, and its approach in general to the objections is not inconsistent with modern principles of case management, and in any event that the Respondent has more than particulars, it has the relevant evidence. That is correct, but it needs to be looked at in the context of this particular case.
The Points of Claim were filed on 27 July 2007, they were further amended by order of the Court on 27 September 2007, and the evidence to which objection is now taken was only filed on 5 October 2007, 10 days before the trial was due to commence.
It is true that the Respondent has had an opportunity to put on evidence in response, but it seems to have done so only insofar as is necessary to meet the case as it stood and the case as it was particularised as at 27 July and 27 September 2007, but not as to matters which were not particularised but which have arisen in Mr King’s affidavit.
Modern principles of case management might ordinarily preclude some but not all of the objections raised by the Respondent. However, this case has to be looked at and tempered by the timetable, which became very crowded by a joinder application by the current Respondent which was granted, and consequential orders which were made by the Court on 23 August 2007.
The fundamental question for the Court in terms of case management now is how justice might be done. To allow the objections of the Respondent in relation to, in particular,[1] the evidence as it relates to the Applicant’s case might – and the Court puts it no higher than that and with no hint of predetermination – result in a case that is arguable on the basis of the evidence disallowed never being heard.
[1] See, for example, State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146; Mahmoud v Owner’s Corporation Strata Plan No 811 [2007] FMCA 131 at para. 21 per Lucev FM.
If the Court disallows the objections, then the Respondent will be unfairly prejudiced by being forced to meet a case that is not revealed by the particulars and which was perhaps not contemplated prior to 5 October 2007 when Mr King’s evidence was filed.
Consideration
In determining the issue, the Court has to have regard in particular to the Federal Magistrates Act 1999 (Cth)[2] and the Federal Magistrates Court Rules 2001 (Cth). Section 14 of the FM Act provides that the Court is to determine all matters in controversy completely and finally and ensure that there is no multiplicity of proceedings. The Court also has to have regard to s.42 of the FM Act which provides that proceedings should not be unduly protracted.
[2] “FM Act”.
In the circumstances of this case there is a certain tension between those provisions and a difficult balance between the requirement to do justice, to hear all the matters in controversy to finality, and not to be unduly protracted.
The Court takes the view that justice would best be served in this case by a hearing of the Applicant’s claims as revealed in the evidence of Mr King at this stage and a hearing of those claims in total. Justice, however, equally demands that they be properly put and particularised by the Applicant and that the Respondent have an opportunity to respond and put on any further evidence in relation to that response.
That is a task not properly to be done, in the Court’s view, by either side in the course of a hearing such as this having regard to the demands on Counsel and instructing solicitors in the course of a hearing. It will therefore be necessary, although regrettable in the circumstances, that the hearing be adjourned.
The Court proposes that orders be made granting leave to the Applicant to amend the particulars of claim, allowing the Respondent to amend the particulars of defence, and the Respondent be allowed to file further affidavits related to the amendments to the particulars of claim.
It is therefore unnecessary to deal with and determine the objections to Mr King’s statement as between the Applicant and the Respondent. That can now await the filing of amended particulars of claim and defence and the Respondent’s further evidence. Once that is done, the Court will list a further directions hearing to determine whether any of the objections are maintained or if there are further objections by the Applicant to the Respondent’s further evidence or if any other procedural issues need to be dealt with prior to the resumed hearing.
Leave was granted this morning to the cross-respondents to amend their defence in terms of the amended defence filed in court yesterday. The Court indicated this morning that the respondent would have leave to lead oral evidence in relation to those amendments. There will now be an order for the filing of affidavits in that regard. The Court proposes to deal separately and on a later date with the objections as between the respondent and further cross-respondent concerning King’s affidavit, and will do so in writing to be published and distributed to the parties.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: J. Semler
Date: 16 October 2007
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