Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2)

In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2), the applicant, Fair Work Ombudsman, sought leave to file a third further amended statement of claim and an amended originating application. The respondents, Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on the grounds that it was advanced after the applicant had closed its case, the applicant had not provided an adequate explanation for the delay in applying to amend, and the respondents had adduced evidence of prejudice. The case involved allegations of exploitation of labour hire workers by Mossop Group and the respondents.

The legal issues before the court were whether the amendments to the pleadings prejudiced the respondents and whether the application should be allowed despite being made after the applicant had closed its case. The court considered the principles outlined in Aon Risk Services Australia Limited v Australian National University, including the nature and importance of the amendment, the extent of the delay, the prejudice that might follow from the amendment, and the explanation for any delay in applying for leave.

The court found that the nature of the amendments was such that the case against the respondents had not changed in any material way, and the evidence of the oral exchanges was largely consistent with what was pleaded. The court also noted that it was inherent in such cases that there may be variations between what was pleaded and the evidence, particularly given the time that had elapsed since the events occurred. The court concluded that the respondents were able to make submissions as to any differences between the evidence and the pleadings and could apply to recall witnesses if necessary.

The court granted the applicant leave to file an amended originating application and a third further amended statement of claim. The court noted that the weight to be given to the various considerations identified in Aon might vary depending on the facts of the individual case. In this instance, the court found that the factors in favour of allowing the amendments outweighed those against it.

The court made the following orders:

1. The applicant has leave to file an amended originating application in the form provided to the Court on 4 April 2023.
2. The applicant has leave to file a third further amended statement of claim in the form provided to the Court on 4 April 2023.