Eustace v North Coast Petroleum Pty Ltd
[2025] FedCFamC2G 1048
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eustace v North Coast Petroleum Pty Ltd [2025] FedCFamC2G 1048
File number(s): CAG 71 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 20 June 2025 Catchwords: PRACTICE & PROCEDURE – Pleadings – late application for leave to amend – amendment sought before evidence filed. Legislation: Fair Work Act2009 (Cth) s.570 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: Fair Work Number of paragraphs: 9 Date of hearing: 20 June 2025 Place: Sydney Solicitor for the Applicant: Adero Law Counsel for the Respondent: Ms M Wallis Solicitor for the Respondent: HTA Legal ORDERS
CAG 71 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK EUSTACE
Applicant
AND: NORTH COAST PETROLEUM PTY LTD
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed on 11 June 2025 stand over to 8 August 2025 at 11:00am for further hearing.
2.The matter proceed henceforth on pleadings.
3.On or before 4 July 2025 the applicant file and serve as an annexure to an affidavit a proposed statement of claim.
4.On or before 1 August 2025 the respondent advise the applicant of its position on the proposed statement of claim.
5.The parties have liberty to apply.
6.Costs be reserved.
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 CAMERON
This proceeding comes before the Court today because the applicant wishes to make a further amendment to his Form 4 claim form, the original version of that document having been amended at the end of last year to correct the name of the respondent. I understand that that was the only amendment to have been made, apart from updating the details of the applicant’s legal representatives. Since that first amendment, there has been a response and a defence filed in January, a mediation in May and then, earlier this month, a copy of a proposed further amended Form 4 was provided to the respondent.
The document which the applicant seeks to file is, as I’ve observed during addresses today, dense and fact heavy, and contains material which would be more appropriately put in an affidavit, or affidavits, rather than in the pleading. Also, there are aspects of the document which seem to me to be unnecessary in terms of pleading and other paragraphs which are full of different allegations which relate to each other, but were they to be truly relevant, should stand separately.
The respondent has not taken any particular point in relation to the contents of the pleading and instead has objected to its filing because of the point in the proceeding at which it is made, that is to say some eight months after the proceeding was commenced. I accept that the applicant deserves some criticism for bringing the application late, but I am advised by Mr Chakrabarty, who appears for the applicant today, that the amendments followed the involvement of counsel in the matter in association with the mediation last month. It is important to note that, at this point, no evidence has been filed and so although it is fair to say that the matter has not advanced very far in the eight months it has been on foot, by the same token that very fact tends to mitigate whatever prejudice the respondents may suffer as a result of any further amendment to the Form 4.
The parties have debated the reasonableness of notice in relation to the proposed Form 4 and the absence of identification of any prejudice which the respondents might suffer were the pleading to be further amended. But I think, with all respect to the parties, that that is all a storm in a teacup. The only prejudice, which it seems to me based on the material presently before the Court which the respondents might suffer, is one of costs thrown away by reason of the amendment. In that regard, it has not been suggested that the respondents will lose any particular rights or advantages in the defence of this litigation by reason of any further delay. Also, because the matter is still in its comparatively early stages and is not listed for hearing, the interposition of an additional step in the interlocutory stage will inconvenience no one other than the present parties.
CONSIDERATION
The role of the Court is to quell disputes between parties and the purpose of pleadings is to place before the Court and the parties the matters which the Court has to decide. An applicant is entitled to articulate their claim in the way they see fit, subject to rules of pleading and unless doing so would cause the sort of prejudice that was discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
I am willing to entertain at this stage a further amendment of the applicant’s claim, but not in its present form. In that regard, Mr Chakrabarty, for the applicant, has submitted that the Form 4 document is a constraint on the clear articulation of the applicant’s claim. I can understand why that might be so. He has suggested that a concise statement might be a better method of approaching the matter but, given that there are pecuniary penalties sought in this matter, I think a formal statement of claim would be a better approach.
It seems to me that it is appropriate that the matter proceed henceforth on pleadings and that, in the circumstances, the applicant be granted leave to propose to the respondents and to the Court a statement of claim which more clearly than the present proposal articulates his allegations and addresses the Court’s concerns in relation to the density of the proposed amended Form 4, which has been the subject of debate today.
For that reason and in order to bring the matters in issue before the Court in a clear and concise way, I propose to stand the present application over so that the applicant can provide the respondent with a further document and the respondent have an opportunity to consent or to object to the document in its entirety or perhaps as to parts.
The respondents have sought their costs, but given the way the matter has reached a conclusion today I think a determination on costs would be premature. Amongst other things, I would need to hear from the respondents as to what unreasonable act or omission on the part of the applicant merits an award of costs under s.570 of the Fair Work Act2009 (Cth).
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 8 July 2025
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