Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd

[2013] FCCA 1456

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TOYOTA MATERIAL HANDLING (NSW) PTY LTD [2013] FCCA 1456

Catchwords:
PRACTICE AND PROCEDURE – Application to further amend statement of claim – where application made on day of hearing – where proceedings originally brought in 2011 – where amendments sought to address respondent’s submissions – whether to allow amendments.

Legislation:  

Limitation Act1969 (NSW)
Workplace Relations Act 1996 (Cth), s.400(5)
Federal Court Act 1977 (Cth), s.37M

Aon Risk Management; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Applicant: FAIR WORK OMBUDSMAN

Respondent: TOYOTA MATERIAL HANDLING (NSW) PTY LTD

File Number: SYG 1356 of 2011

Judgment of: Judge Raphael

Hearing date: 16 September 2013

Date of Last Submission: 16 September 2013

Delivered at: Sydney

Delivered on: 16 September 2013

REPRESENTATION

Counsel for the Applicant: Ms P. McDonald

Solicitors for the Applicant: FCB Workplace Law

Counsel for the Respondent: Mr J. Pearce

Solicitors for the Respondent: Holdling Redlich

ORDERS

1. Interim application dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1356 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

TOYOTA MATERIAL HANDLING (NSW) PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This case, which commenced by the filing of an application on 28 June 2011, has eventually come to trial today, 16 September 2013.  Part of the reason for what will appear at first sight to be a very extensive delay, particularly in a matter involving the imposition of penalties, is because there was a preliminary point heard on whether or not the applications themselves might be severely limited by the imposition of the New South Wales Limitation Act1969.  That matter was the subject of an appeal to the Full Bench of the Federal Court, and it was only after that appeal was decided in favour of the applicants that the matter proceeded.  However, the conduct which forms the basis of the allegations and the proceedings took place in March 2006, some seven years ago.

2. The proceedings themselves were dealt with by way of pleadings, which all parties considered appropriate in a matter as serious as this where allegations have been made of duress contrary to s.400(5) of the post-reform Workplace Relations Act 1996 (Cth).[1]  The statement of claim was amended on 22 December 2011.  Thereafter, an amended defence was filed.  The parties proceeded on the basis of those pleadings, evidence was put on by affidavit, and after the determination of the Full Bench, a final timetable was given which included the filing of submissions by both parties.

   [1] ‘WC Act’.

3. The applicant filed its submissions on 30 July 2013, and they were speedily responded to by the respondent on 9 August 2013.  The applicant accepts that the further amendments, the subject of this decision, came about as the result of a consideration of the respondent’ssubmissions and are really aimed at plugging some holes in the pleadings which the respondent pointed out. 

4. The first amendment is to paragraph 20 by the addition of a paragraph 20A.  This reads:

   “Hughes was an employee of TMH NSW and his conduct as set out in paragraph 13, was within the scope of his actual or apparent authority.  By reason of subsection 349(2) of the pre-reform WR Act, his conduct was taken to be engaged in by TMH NSW.”

   In paragraph 21, the nub of the amendment is set out:

   “By reason of the matters set out in paragraphs 5 to 20A, TMH NSW has applied duress to Morrow in connection with an AWA and contravened subsection 170WG(1) of the pre-reform WR Act.”

5. Mr Morrow, the person who alleges he was placed under duress in regard to the signing of his AWA, has put on two affidavits.  In his affidavit sworn on 22 September 2011, Mr Morrow deposes to a conversation as follows with Mr Hughes:

   “Me:  “Paul, this says I have to wait 14 days before I sign.  I’ll actually be in breach of the document if I sign now.  What happens if I don’t sign, what do I do?”

   Mr Hughes:   “Look, I’ve been told by management to tell you that if you don’t sign it you can leave your keys to the van on the table.”

   Me:  “Are you serious?”

   Mr Hughes nodded his head and did not say anything further.”

6. Mr Morrow has not changed his evidence since that time, and it was open to the applicant to make the amendment that it now seeks ever since.  It did not seek to make the amendment until today.  I can only assume that it was sought to be made because of the submissions made by the respondent and filed on 9 August 2013.  Although, in my view, it would have been open to the applicant to plead ostensible authority ever since a decision was taken to prosecute in the first place.  I would have expected that if an amendment was to be made then some indication of it would have been given, both to the court and to the respondents, within a week of 9 August 2013.  That would have provided at least some reasonable time for the respondents to deal with the matter. 

7. The next further amendment sought is found at paragraph 58(a)(iia):

   “[The applicant claims relief by way of a declaration that the first respondent] contravened subsection 170WH(1) of the pre-reform WR Act by failing to provide Bryson Morrow with a filing receipt, approval notice and a copy of the AWA as approved as soon as practicable after receiving those documents from the OEA.”

   This declaration is complemented by an order sought under paragraph 58(ea), which is for:

   “an order pursuant to section 170VV of the pre-reform WR Act that the first respondent pay a penalty in respect of the contravention of subsection 170WH(1) of the pre-reform WR Act.”

8. It is true that in the original Statement of Claim there is, at [33] a reference to the failure to provide the copies of the filing receipts, et cetera.  Paragraph 33 relevantly states:

   “In contravention of section 170WH of the pre-reform WR Act, TMH failed to provide to Morrow a copy of the filing receipt, approval notice and AWA as approved as soon as practicable after receiving those documents from the OEA.”

   For reasons best known to the applicant, that statement remained in the state of limbo in which it was made.  There was no reference to it in the declarations and no reference to it in the claim for penalties.  The respondent, as it was entitled to do, took the pleadings on their face and did not take any steps to respond.  The pleading was not amended in December 2011.  It was only when the respondent made reference to the fact that it was taking no action in relation to this hanging accusation that the applicant decided it had better put things right and take the steps, I am of the view, it should have taken in the original Statement of Claim filed on 28 June 2011. 

9. The final amendment was found in paragraph 58(f), one of the claims for relief.  That originally read:

   “orders pursuant to section 407 of the WR Act that each of the first and third respondents pay a penalty in respect of the contravention of subsection 400(5) of the WR Act.”

   The pleading was amended in December 2011 so that it read:

   “an order pursuant to section 407 of the WR Act that the first respondent pay a penalty in respect of the contravention of subsection 400(5) of the WR Act.” 

   The proposed iteration of subparagraph (f) is:

   “an order pursuant to section 407 of the WR Act that the first respondent pay penalties in respect of the contraventions of subsection 400(5) of the WR Act.” 

10. As can be seen, what is now requested is the ability to amend so that more than one breach can be the subject of a penalty.  The applicant argues that the three breaches of the duress clause are claimed in respect to three different employees and that there should be a penalty in respect of each, always taking into account the common law totality principle which has now been reduced to statutory form in later versions of these Acts, which do not apply here, as “course of conduct”.

11. Unsurprisingly, Mr Pearce objects to these amendments and cites in support of that objection the dicta of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175[2] which is the current learning on late applications for amendment.  But he also takes the court, rightly in my view, to the policies set out in s.37M of the Federal Court Act 1977 (Cth) and order 8.21 of the Federal Court Rules 2011 (Cth). Given that this is a proceeding that has been the subject of pleadings, s.37M relevantly provides:

    [2] Aon.

    “(1)  The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

    (a)  according to law; and

    (b)  as quickly, inexpensively and efficiently as possible.

    (2)  Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

    (a)  the just determination of all proceedings before the Court;

    (b)  the efficient use of the judicial and administrative resources available for the purposes of the Court;

    (c)  the efficient disposal of the Court's overall caseload;

    (d)  the disposal of all proceedings in a timely manner;

    (e)  the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

    (3)  The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.”

12. Mr Pearce points to the views expressed by the High Court in Aon at [103] that:

    “Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for.”

    He points out that no real explanation has been given in respect of these amendments and although I have heard from Ms McDonald upon it, I cannot say that I have received much assistance in understanding why these amendments were not sought to be made some very considerable time ago.  I am also sensible of the remarks made by the High Court at [95] of Aon:

    “The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. … To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.”

13. In this case, I am of the view that the delay that has already been occasioned is too great to warrant any further adjournments.  The fact is that if the case was adjourned so that Mr Pearce could put on evidence about these matters, it would not come on again until about May next year – such is the calendar problem of this court, swamped as it is by matters of judicial review in migration cases and the lack of additional resources to assist.  That is out of all proportion to the seriousness of the case and the fact that the allegations stem from 2006 and the proceedings themselves from 2011.

14. In my view, case management must trump the convenience of the applicant who is bringing these proceedings for civil penalties.  That, in itself, is a serious matter.  Prosecutors of this type should get their cases sorted out very early in the piece so that those accused of serious breaches – and these are serious – of Industrial Relations Acts know what they have to deal with.  They should know what is alleged, firstly, to defend those allegations and, secondly and just as importantly, to try and negotiate with the prosecutor so that these matters can come before the court, if necessary for the fixation of penalties only, on the basis of agreed facts.  This, I am pleased to say, does happen in more cases than the court sees a dispute of the type that is now before me.

15. The application is refused.  The applicant will proceed on the basis of the amended statement of claim.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  24 September 2013