Haile-Michael v Konstantinidis (No 2) - [2012] FCA 167

FEDERAL COURT OF AUSTRALIA
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167

Citation: Haile-Michael v Konstantinidis (No 2) [2012] FCA 167

Parties: DANIEL HAILE-MICHAEL, ROBERT KOUA, JIBRIL GOD, ZAKARIA GOD, SHUAIB ALI, AHMED MUSSA, MAKI ISSA, HAKIM HASSAN, MAGNUS KABA, ABDUL ABDI and BASHIR HUMED v NICK KONSTANTINIDIS, BRETT PATTIE, SHANE DAVIES, NICK O'BRIEN, PAUL GILMOUR, PETER MEATH, DENIS LINEHAN, CHIEF COMISSIONER OF VICTORIA POLICE and STATE OF VICTORIA

File number: VID 969 of 2010

Judge: MARSHALL J

Date of judgment: 1 MARCH 2012

Catchwords: PRACTICE AND PROCEDURE – interlocutory application – pleadings – application to strike out parts of proposed further amended statement of claim – form and content of pleadings – function of pleadings – efficient conduct of a matter pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth)

Legislation: Australian Human Rights Act 1986 (Cth) s 46PO
Federal Court of Australia Act 1976 (Cth) s 37M
Racial Discrimination Act 1975 (Cth)

Cases cited: Haile-Michael v Konstantinidis [2012] FCA 108
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Competition and Consumer Competition v Golden West Network Pty Ltd (Fed C of A, 19 August 1997, unreported)
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

Date of hearing: 14 February 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 38

Counsel for the Applicants: Ms R Doyle SC with Ms P Knowles

Solicitor for the Applicants: Arnold Bloch Liebler

Counsel for the First to Seventh Respondents: Mr R Niall SC with Ms R Sharp

Solicitor for the First to Seventh Respondents: Maddocks

Counsel for the Eighth and Ninth Respondents: Mr P Hanks QC with Ms R Orr

Solicitor for the Eighth and Ninth Respondents: Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 969 of 2010

BETWEEN:
DANIEL HAILE-MICHAEL
Third Applicant

ROBERT KOUA
Fourth Applicant

JIBRIL GOD
Fifth Applicant

ZAKARIA GOD
Sixth Applicant

SHUAIB ALI
Eighth Applicant

AHMED MUSSA
Tenth Applicant

MAKI ISSA
Twelfth Applicant

HAKIM HASSAN
Thirteenth Applicant

MAGNUS KABA
Fourteenth Applicant

ABDUL ABDI
Fifteenth Applicant

BASHIR HUMED
Sixteenth Applicant

AND:
NICK KONSTANTINIDIS
First Respondent

BRETT PATTIE
Second Respondent

SHANE DAVIES
Third Respondent

NICK O'BRIEN
Fourth Respondent

PAUL GILMOUR
Fifth Respondent

PETER MEATH
Sixth Respondent

DENIS LINEHAN
Seventh Respondent

CHIEF COMISSIONER OF VICTORIA POLICE
Eighth Respondent

STATE OF VICTORIA
Ninth Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

1 MARCH 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The interlocutory application of the first to seventh respondents dated 18 November 2011 is adjourned to trial.
2.Liberty to apply.
3.Costs reserved.

Note:Entry of orders is dealt with in Rule 36.32 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 969 of 2010

BETWEEN:
DANIEL HAILE-MICHAEL
Third Applicant

ROBERT…

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: [2012] FCA 167
Decision Date: 1 MARCH 2012

CaseChat Overview and Summary

In Haile-Michael v Konstantinidis (No 2), the plaintiffs sought to amend their statement of claim for a second time to add new claims against the eighth and ninth respondents. The respondents applied to strike out certain parts of the proposed further amended statement of claim, arguing that the amendments were not permissible under the Federal Court Rules and that they would result in an inefficient conduct of the proceedings. The case came before the Federal Court, which had to determine the appropriate scope of amendments to pleadings and whether the amendments would result in an inefficient conduct of the proceedings.

The court had to decide whether the proposed amendments to the statement of claim were permissible under the Federal Court Rules and whether they would result in an inefficient conduct of the proceedings. The court had to balance the need for efficient conduct of the proceedings against the need to provide a fair opportunity for the parties to present their cases.

The court found that the proposed amendments were permissible under the Federal Court Rules and that they did not result in an inefficient conduct of the proceedings. The court held that the function of pleadings is to provide a fair opportunity for the parties to present their cases and that the proposed amendments did not prejudice the respondents' ability to defend the proceedings. The court also found that the proposed amendments were necessary to provide a fair opportunity for the plaintiffs to present their claims. The court adjourned the interlocutory application to trial and dismissed the application insofar as it sought to strike out paragraph 14 of the annexure to the statement of claim.

The court reserved costs and noted that entry of orders was dealt with in Rule 36.32 of the Federal Court Rules. The eighth and ninth respondents’ interlocutory application of 11 November 2011, insofar as it sought to strike out paragraph 14 of the annexure to the statement of claim, was adjourned to trial, while the interlocutory application was otherwise dismissed. Liberty to apply in respect of order 1 above was granted, and costs were reserved.

Orders

Orders of the court

1. The interlocutory application of the first to seventh respondents dated 18 November 2011 is adjourned to trial.

2. Liberty to apply.

3. Costs reserved.

Note: Entry of orders is dealt with in Rule 36.32 of the Federal Court Rules.

1. The eighth and ninth respondents’ interlocutory application of 11 November 2011, insofar as it seeks to strike out paragraph 14 of the annexure to the statement of claim, is adjourned to trial.

2. The interlocutory application is otherwise dismissed.

3. Liberty to apply in respect of order 1 above.

4. Costs reserved.

Note: Entry of orders is dealt with in Rule 36.32 of the Federal Court Rules.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Haile-Michael v Konstantinidis (No 2) [2012] FCA 167
Parties:		DANIEL HAILE-MICHAEL, ROBERT KOUA, JIBRIL GOD, ZAKARIA GOD, SHUAIB ALI, AHMED MUSSA, MAKI ISSA, HAKIM HASSAN, MAGNUS KABA, ABDUL ABDI and BASHIR HUMED v NICK KONSTANTINIDIS, BRETT PATTIE, SHANE DAVIES, NICK O'BRIEN, PAUL GILMOUR, PETER MEATH, DENIS LINEHAN, CHIEF COMISSIONER OF VICTORIA POLICE and STATE OF VICTORIA
File number:		VID 969 of 2010
Judge:		MARSHALL J
Date of judgment:		1 MARCH 2012
Catchwords:		PRACTICE AND PROCEDURE – interlocutory application – pleadings – application to strike out parts of proposed further amended statement of claim – form and content of pleadings – function of pleadings – efficient conduct of a matter pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth)
Legislation:		Australian Human Rights Act 1986 (Cth) s 46PO Federal Court of Australia Act 1976 (Cth) s 37M Racial Discrimination Act 1975 (Cth)
Cases cited:		Haile-Michael v Konstantinidis [2012] FCA 108 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Competition and Consumer Competition v Golden West Network Pty Ltd (Fed C of A, 19 August 1997, unreported) McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Date of hearing:	14 February 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Applicants:	Ms R Doyle SC with Ms P Knowles
Solicitor for the Applicants:	Arnold Bloch Liebler
Counsel for the First to Seventh Respondents:	Mr R Niall SC with Ms R Sharp
Solicitor for the First to Seventh Respondents:	Maddocks
Counsel for the Eighth and Ninth Respondents:	Mr P Hanks QC with Ms R Orr
Solicitor for the Eighth and Ninth Respondents:	Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 969 of 2010

JUDGE:	MARSHALL J
DATE OF ORDER:	1 MARCH 2012
WHERE MADE:	MELBOURNE