Desira v Airservices Australia - [2020] FCA 818

FEDERAL COURT OF AUSTRALIA
Desira v Airservices Australia [2020] FCA 818

File number: VID 565 of 2019

Judge: DAVIES J

Date of judgment: 12 June 2020

Catchwords:
PRACTICE AND PROCEDURE – application for leave to amend pleadings – whether consistent with overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) – where application made one month before trial – whether sufficient explanation for delay – whether respondent would suffer prejudice – no sufficient explanation for delay – respondent did not demonstrate prejudice would flow from allowing proposed amendments – amendments would not necessitate adjournment of the trial – leave to amend granted

PRACTICE AND PROCEDURE – application for adjournment of trial – whether new factual and legal issues raised by list of issues – where recent subpoena material – where evidence required to be given by video link due to COVID-19 restrictions – insufficient evidence of new material required to be put on by the parties in response to new issues – challenges of document management and evidence by video link not insurmountable – application to adjourn refused

Legislation:
Australian Human Rights Commission Act 1986 (Cth), s 46PO(3)

Disability Discrimination Act 1992 (Cth), ss 4, 5(2), 6(2), 15(2)

Federal Court of Australia Act 1976 (Cth), ss 22, 37M

Federal Court Rules 2011 (Cth), r 16.53

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Sex Discrimination Act 1984 (Cth)

Cases cited:
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175

Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

Payne v Long [2019] FCA 1765

Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220

Date of hearing: 5 June 2020

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 38

Counsel for the Applicant: Mr C Dowling SC with Ms C Van Proctor

Solicitor for the Applicant: Maurice Blackburn

Counsel for the Respondent: Ms K Eastman SC with Ms E Bennett

Solicitor for the Respondent: Mills Oakley

ORDERS

VID 565 of 2019

BETWEEN:
MELISSA DESIRA

Applicant

AND:
AIRSERVICES AUSTRALIA (ABN 59 698 720 886)

Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

12 JUNE 2020

THE COURT ORDERS THAT:
1.The applicant be granted leave to file a further amended statement of claim in substantially the same form as annexure DM-1 to the affidavit of Declan Vincent Murphy dated 25 May 2020.
2.The applicant file and serve further and better particulars of the matters pleaded in paragraph 214A of the further amended statement of claim by 15 June 2020.
3.The applicant’s oral application for the adjournment of the trial of the proceeding due to commence on 22 June 2020 be refused.
4.Subject to argument, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
DAVIES J:
INTRODUCTION

The…

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: [2020] FCA 818
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the case of Desira v Airservices Australia, the applicant sought leave to amend the statement of claim and an adjournment of the trial. The application was made one month before the trial was scheduled to commence. The Federal Court was required to determine whether the applicant's late application for leave to amend pleadings was consistent with the overarching purpose of section 37M of the Federal Court of Australia Act 1976 (Cth), and whether the respondent would suffer prejudice if the application was granted. The court also had to decide whether the trial should be adjourned due to new factual and legal issues raised by the list of issues, recent subpoena material, and evidence required to be given by video link due to COVID-19 restrictions.

The court found that although the applicant had not provided a proper explanation for the lateness of the amendments, the trial date would not be affected if the amendments were made, nor would the respondent suffer substantial prejudice by the amendments if the trial date was kept. The proposed amendments contained sufficiently pleaded claims, and the challenges of document management and evidence by video link were not insurmountable. The court considered the overarching purpose of section 37M of the FCA Act and concluded that it was not persuaded that the hearing should be adjourned.

The court granted leave to the applicant to file a further amended statement of claim, with an order requiring particulars to be provided to proposed paragraph 214A. The court also refused the applicant’s oral application for the adjournment of the trial. Subject to argument, there was no order as to costs. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant be granted leave to file a further amended statement of claim in substantially the same form as annexure DM-1 to the affidavit of Declan Vincent Murphy dated 25 May 2020.

2. The applicant file and serve further and better particulars of the matters pleaded in paragraph 214A of the further amended statement of claim by 15 June 2020.

3. The applicant’s oral application for the adjournment of the trial of the proceeding due to commence on 22 June 2020 be refused.

4. Subject to argument, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of the above considerations and the overarching purpose in s 37M of the FCA Act, I am not persuaded that the hearing listed for 22 June 2020 should be adjourned.CONCLUSION Although I am of the view that the applicant has not provided a proper explanation for the lateness of the amendments, I am also not persuaded that the trial date would be affected if the amendments were made, nor that the respondent would suffer substantial prejudice by the amendments if the trial date was kept. As I also consider that the proposed amendments contain sufficiently pleaded claims, I would allow the amendments, with an order requiring particulars to be provided to proposed paragraph 214A.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 565 of 2019
Judge:	DAVIES J
Date of judgment:	12 June 2020
Catchwords:	PRACTICE AND PROCEDURE – application for leave to amend pleadings – whether consistent with overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) – where application made one month before trial – whether sufficient explanation for delay – whether respondent would suffer prejudice – no sufficient explanation for delay – respondent did not demonstrate prejudice would flow from allowing proposed amendments – amendments would not necessitate adjournment of the trial – leave to amend granted PRACTICE AND PROCEDURE – application for adjournment of trial – whether new factual and legal issues raised by list of issues – where recent subpoena material – where evidence required to be given by video link due to COVID-19 restrictions – insufficient evidence of new material required to be put on by the parties in response to new issues – challenges of document management and evidence by video link not insurmountable – application to adjourn refused
Legislation:	Australian Human Rights Commission Act 1986 (Cth), s 46PO(3) Disability Discrimination Act 1992 (Cth), ss 4, 5(2), 6(2), 15(2) Federal Court of Australia Act 1976 (Cth), ss 22, 37M Federal Court Rules 2011 (Cth), r 16.53 Safety, Rehabilitation and Compensation Act 1988 (Cth) Sex Discrimination Act 1984 (Cth)
Cases cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 Payne v Long [2019] FCA 1765 Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220
Date of hearing:	5 June 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Applicant:	Mr C Dowling SC with Ms C Van Proctor
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Ms K Eastman SC with Ms E Bennett
Solicitor for the Respondent:	Mills Oakley