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
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…
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- Case
- [2020] FCA 818
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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