Harper v Gold Coast Pistol Club Limited - [2023] FedCFamC2G 206

Federal Circuit and Family Court of Australia

(DIVISION 2)

Harper v Gold Coast Pistol Club Limited [2023] FedCFamC2G 206

File number(s):	BRG 311 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	17 March 2023
Catchwords:	PRACTICE AND PROCEDURE – Application for leave to amend pleading filed at a late stage of the proceeding and where trial imminent – application for further discovery at a late stage of the proceeding and where trial imminent – overarching purpose of civil practice and procedure provisions of the Court’s governing Act – doctrine of laches – significant delays on the part of the applicant did not warrant a second adjournment of the trial where the first adjournment was caused by the applicant’s delay – applications for leave to amend and further discovery and injunctive relief refused.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 131, 139, 190 and 191. Fair Work Act 2009 (Cth) ss. 545(5) and 570.
Cases cited:	AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Birrell v Australian National Airlines Commission (1984) 1 FCR 526. JL Holdings Pty Ltd v State of Queensland (1996) 71 FCR 545. Menses & Anor v Directed Electronics OE Pty Ltd (2019) 273 FCR 638. Rich v Australian Securities and Investments Commission (2004) 220 CLR 129.
Division:	Division 2 General Federal Law
Number of paragraphs:	57
Date of last submission/s:	15 August 2023
Date of hearing:	13 - 15 August 2023
Place:	Brisbane
Solicitor for the Applicant:	Yates Beaggi Lawyers
Counsel for the Applicant:	Mr A Fernon SC with Ms B Nolan of Counsel
Solicitor for the Respondents:	Aitken Legal
Counsel for the Respondents:	Mr A Smith of Counsel with Ms B Mendelson of Counsel

ORDERS

BRG 311 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	KATHRYN HARPER Applicant
AND:	GOLD COAST PISTOL CLUB LIMITED First Respondent PETER ROPER Second Respondent STEVEN JOHN FLORI (and others named in the Schedule) Third Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	20 March 2023

THE COURT ORDERS THAT:

The Application in a Proceeding filed on behalf of the Applicant on 15 February 2023 be dismissed.
The Application in a Proceeding filed on behalf of the Applicant on 10 March 2023 be dismissed.

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 Egan

Introduction

The applicant commenced limited employment with the first respondent in or about November 2005. In or about July 2006, the applicant commenced full-time employment with the first respondent.
There is a dispute as to the nature and extent of work performed over time by the applicant, and what the applicant’s relevant wage and other entitlements were, both up to the date of the termination of her employment in or about June/July 2021, and subsequently.
On 26 July 2021, a Statement of Claim was filed on behalf of the applicant naming the Gold Coast Pistol Club Limited as the first respondent in its capacity as the applicant’s employer, and the second to tenth respondents in their respective capacities as former and then current directors of the first respondent. The following relief was sought in that Statement of Claim:
“[71] Pursuant to section 545 of the Fair Work Act 2009 (Cth) (Fair Work Act), a Declaration that the First to Tenth Respondents, jointly and severally, contravened section 340 of the Fair Work Act by taking adverse action against the Applicant.
[72]Declaration that the Written Offer was entered into under duress, undue influence and or was unconscionably obtained.
[73]Declaration that the Written Offer is void ab initio or alternatively, an order setting the Written Offer aside.
[74]An order under s. 232 and/or 237 of the Australian Consumer Law for compensation or otherwise declaring the Written Offer void ab initio or otherwise setting the Written Offer aside.
[75]Declaration that the Applicant holds a life tenancy over the property described as the Cottage, 85 Edmund Rice Drive, Ashmore.
[76]In the alternative to prayer for relief set out in paragraph 75 above, a Declaration that the Applicant holds an irrevocable lifetime license to occupy the property described as the Cottage, 85 Edmund Rice Drive, Ashmore.
[77]Order that the Respondents pay the Applicant such sum Ordered representing her underpayment of wages, penalties, and superannuation.
[78]Order for loss and damage against the Respondents to be assessed or such other amount as the Court determines.
[79]Order pursuant to subsection 546(1) of the Fair Work Act that a penalty be imposed upon the Respondents in respect of each of the contraventions of the Fair Work Act set out below.
[80]Order, pursuant to subsection 546(3)(c) of the Fair Work Act, that the penalties referred to in prayer 6 be paid to the Applicant.
[81]Order, pursuant to subsection 546(2) of the Fair Work Act, that the Respondents pay the Applicant compensation for her loss and damage arising from the Respondents’ contraventions of the Fair Work Act.
[82]Order that within 48 hours of Order the Respondents pay the Applicant’s Superannuation Guarantee, and any shortfall thereof, to a superannuation fund as directed by the Applicant.
[83]Order that the Respondents pay interest on the amounts Ordered in prayers 77, 78, 79, 81 and 82 above.
[84]     Order that the Respondents pay the Applicant’s costs of the Proceedings.
[85]     Order that the Respondents pay the amounts Ordered within 28 days of Order.
[86]     Order that the Respondents pay interest on costs.
[87]     Any further or other Order as the Court deems fit.”
A Defence was filed on behalf of the respondents on 26 August 2021. As a preamble, the following appeared underneath the heading “Defence”:
“In response to the allegations in the Statement of Claim dated 26 July 2021, the Second to Tenth Respondents claim the privilege against self-exposure to penalty.”
In the body of the Defence, the first respondent engaged with the allegations as pleaded in the Statement of Claim, and its pleaded responses were framed in a positive or negative manner in the usual way. Throughout the pleaded Defence, the second to tenth respondents baldly denied each of the allegations as pleaded in the Statement of Claim, a course of action consistent with the second to tenth respondents’ penalty privilege claims.
On 27 October 2021 at 9.49 am, as part of this Court’s case management procedure, draft orders were sent from Judge’s Chambers by the Associate to the legal representatives for the parties for the purpose of consideration being given by them as to whether such draft orders, designed as they were to progress the matter in an orderly way, might be made at a directions hearing listed for later that day without the necessity of an actual appearance.
At 10.32 am on 27 October 2021, Senior Counsel for the applicant sent an email to Judge’s Chambers, and to the legal representatives for the parties, which provided as follows: [1]
[1]           Annexure FA-9 to the affidavit of Mr Amirbeaggi filed on 10 March 2023 at pp. 14 – 17.
“Dear Associate
I am senior counsel for the Applicant, Ms Harper. I am sending this email with the consent of Mr Alastair Smith, counsel for the Gold Coast Pistol Club and the other defendants.
Mr Smith and I have discussed the proposed orders you recently sent to the parties. An additional step required is the amendment and finalisation of pleadings. This will necessarily delay the provision of discovery but both Mr Smith and I believe it should not delay the mediation. We have agreed to amended orders which are attached for his Honour’s consideration and discussion at 9.45am
Andrew Fernon SC
Barrister
Level 19, 65 Martin Place
Sydney NSW 2000
Ph 8227 4400
Fax 8227 4444
DX 509 SYDNEY
…
ORDER
BEFORE:            JUDGE EGAN
DATE:              27 October 2021
MADE AT:           BRISBANE
IT IS DECLARED THAT:
1.Pursuant to the provisions of s. 45(1) of the Federal Circuit Court of Australia Act 1999 (Cth), and r. 14.02 of the Federal Circuit Court Rules 2001 (Cth), it is appropriate, in the interests of the administration of justice, to allow discovery by all parties in this proceeding.
AND IT IS ORDERED THAT:
2.The Applicant to file and serve its proposed Amended Statement of Claim (substantially in the form attached to the email from the Applicant's solicitor to the Respondents' solicitor of 17 October 2021) by 4pm 29 October 2021.
3.The Respondents' file and serve a Defence to the Amended Statement of Claim by 4pm on 15 November 2021.
4.The Applicant to file and serve a Reply (if any) to the Respondents' Defence by 4pm on 29 November 2021.
5.The parties are to each make, file and serve an affidavit of disclosed documents on or before 4:00pm on 24 December 2021.
6.The parties shall undertake mutual inspection of the opposing parties disclosed documents on or before 4:00pm on 31 January 2022.
7.Pursuant to s. 15 of the Federal Circuit Court of Australia Act 1999 (Cth), this matter be referred to mediation before a legal practitioner to be agreed to by the parties, the costs of such mediation to be borne equally, with such mediation to be held in Brisbane or via Zoom or another equivalent platform on or before 1 December 2021.
8.The matter be listed for directions on a date to be fixed after 31 January 2022.
9.Each party have liberty to apply on the giving of two (2) days' notice, each to the other.
10.The costs of and incidental to today's hearing be reserved.
IT IS NOTED THAT:
11.The Court, in deciding to make the declaration in Paragraph 1 of these Orders, had regard to:
i)The likelihood that ordering discovery would contribute to the fair and expeditious conduct of the proceeding; and
ii)That discovery by all parties would fairly result in the disclosure of all relevant documentation for the purposes of the trial of the proceeding.
By the Court
DATE ENTERED: 27 October 2021”
…”
At 10.49 am on 27 October 2021, a further draft set of proposed orders was sent from Judge’s Chambers by the Associate to the legal representatives for the parties. That draft set of orders differed from the draft orders sent to Judge’s Chambers by Senior Counsel for the applicant as follows: [2]
(a)The suggested date for the filing and service of a reply in [4] was changed from 29 November 2021 to 22 November 2021;
(b)The suggested date for the filing and service of an affidavit of disclosed documents by the parties in [5] was changed from 24 December 2021 to 2 December 2021;
(c)The suggested date for undertaking mutual inspection in [6] was changed from 31 January 2022 to 9 December 2021;
(d)The suggested date for the holding of a mediation in [7] was changed from 1 December 2021 to 23 December 2021
[2] See annexure FA–9 to the affidavit of Mr Amirbeaggi filed on 10 March 2023 at pp. 18 – 21.
On 27 October 2021, after a hearing conducted via Microsoft Teams, orders were made by the Court as follows:
“ORDER
BEFORE:                  JUDGE EGAN
DATE:  27 October 2021
MADE AT:                 BRISBANE
APPEARANCES: Mr Fernon SC appearing on behalf of the Applicant by video-link, and Mr Smith of Counsel appearing on behalf of the Respondents by video-link.
IT IS DECLARED THAT:
1.Pursuant to the provisions of s. 45(1) of the Federal Circuit Court of Australia Act 1999 (Cth), and r. 14.02 of the Federal Circuit Court Rules 2001 (Cth), it is appropriate, in the interests of the administration of justice, to allow discovery by all parties in this proceeding.
AND IT IS ORDERED THAT:
2.The Applicant shall file and serve an Amended Statement of Claim (substantially in the form attached to the email from the Applicant's solicitor to the Respondents' solicitor of 17 October 2021) by 4:00pm on 29 October 2021.
3.The Respondents' shall file and serve a Defence to the Amended Statement of Claim by 4:00pm on 15 November 2021.
4.The Applicant to file and serve a Reply (if any) to the Respondents' Defence by 4:00pm on 22 November 2021.
5.The parties shall each make, file and serve an affidavit of disclosed documents on or before 4:00pm on 7 December 2021.
6.The parties shall undertake mutual inspection of the opposing parties disclosed documents on or before 4:00pm on 14 December 2022.
7.Pursuant to s. 15 of the Federal Circuit Court of Australia Act 1999 (Cth), this matter be referred to mediation before a legal practitioner to be agreed to by the parties, the costs of such mediation to be borne equally, with such mediation to be held in Brisbane or via Zoom or another equivalent platform on or before 23 December 2021.
8.The matter be listed for directions on a date to be fixed following the mediation.
9.Each party have liberty to apply on the giving of two (2) days' notice, each to the other.
10.The costs of and incidental to today's hearing be reserved.
IT IS NOTED THAT:
11.The Court, in deciding to make the declaration in Paragraph 1 of these Orders, had regard to:
iii)The likelihood that ordering discovery would contribute to the fair and expeditious conduct of the proceeding; and
iv)That discovery by all parties would fairly result in the disclosure of all relevant documentation for the purposes of the trial of the proceeding.
By the Court
DATE ENTERED: 27 October 2021”
The orders of the Court made on 27 October 2021 differed from the proposed draft orders last sent from Judge’s Chambers by the Associate to the legal representatives for the parties in the following respects:
(a)The date for the filing and service of an affidavit of disclosed documents in [5] was changed from 2 December 2021 to 7 December 2021;
(b)The date for the parties undertaking mutual inspection of disclosed documents was changed from 9 December 2021 to 14 December 2021.
An Amended Statement of Claim effectively seeking the same relief as was sought in the original Statement of Claim was filed on 29 October 2021. An Amended Defence to that Amended Statement of Claim was filed on 15 November 2021. In that Amended Defence, the penalty privilege claims were again pleaded as a preamble.
On 15 February 2023, an application for leave to file and serve a Further Amended Statement of Claim (FASOC) (being annexure FA–2 to the affidavit of Mr Amirbeaggi filed on 6 February 2023 at 5.01 pm) was filed on behalf of the applicant. Mr Amirbeaggi, at [20] – [24] of his affidavit, deposed that during the course of preparing the applicant’s evidence he had been provided with a document which he asserted established that at least the third respondent was aware that the applicant had been knowingly underpaid by the first respondent as early as December 2016. [3] For that reason, it was deposed by Mr Amirbeaggi at [23] that:
“[23]… Because of what has emerged, the applicant seeks discovery of all records held by the respondents for the period between 1 January 2010 and 31 December 2022 that records any communication between the respondents and or the respondents and any third party(ies) with respect to the applicant’s remuneration.”
[3] See annexure FA-1 to the affidavit of Mr Ambirbeaggi filed on 6 February 2023 at Court Book Vol 1
During the course of the hearing before the Court, it was conceded by Senior Counsel for the applicant that annexure FA-1 had come into the possession of the applicant on 21 August 2021 after it had been sent to her by one Robert Craig. It was submitted that the alleged significance of the document wasn’t appreciated by the applicant’s lawyers until in or about December 2022, which was also about the time when Junior Counsel for the applicant first had a chance to look at the brief.
No other explanation has been forthcoming as to why no timely step was taken after 21 August 2021 to seek leave to file a FASOC pleading a further cause of action.
In her affidavit filed on 5 February 2023, the applicant, at [292] – [295] inclusive, deposed as follows:
“[292]As noted above, I knew I was being underpaid for the hours I was completing. I was now regularly pressing Robert and John for payment of my wages and accrued entitlements. In late 2016, Robert said to me words to the following effect: "This has gone on long enough. I'm really sorry Kate. It's unacceptable. I'm going to approach Steve for a discussion. We need to resolve this. The Club has underpaid you since the beginning, we all know that, and look what you've done for the place. Can you prepare a summary for me that shows what you receive now in total across all the payments you get, including your pension, and send that to me? I'll then go to Steve and sort this out."
[293]I subsequently prepared an email for Robert and sent it to him by email dated 12 December 2016, time stamped 11:56am. A copy of that email is located at pages 283 to 284 of Exhibit KH-2.
[294]After sending an email to Robert I didn't hear further from him about my wages. On 21 August 2021, and during these proceedings, Robert provided me a copy of his email correspondence with Steve about my wages from December 2016, and a copy of Steve’s response. A copy of those two emails dated 15 December 2016, time stamped 3:53pm and 15 December 2016, time stamped 4:14pm, are located at pages 285 to 287 of Exhibit KH-2.
[295]I continued to work long hours including on weekends without breaks, payment of additional wages, overtime, or penalties. I did not receive payslips nor any form of employment documentation. At this stage I didn't know how to address the underpayment of my wages. I was starting to become upset and concerned that a decision wasn't made about my wages. I was still hopeful of it being resolved at some stage given I was a resident at the Club and against the amount of work I was performing for it.”
Pages 285 – 287 inclusive of annexure KH-2 to the affidavit of the applicant constituted the evidence of emails sent between the applicant, the third respondent and one Robert Craig concerning the applicant’s wage entitlements. [4]
[4] CB Vol 2 – pp. 655 – 657.
The draft proposed FASOC, by [92] – [102] inclusive, sought to add a claim for the imposition of a remedial constructive trust. The proposed additional amendment was as follows:
“KB. Constructive Trust
[92]     Further to, and in the alternative to paragraph 87 to 91 herein:
(a) the matters pleaded at paragraphs 1 – 2, 12, 14 – 18, 28 – 43, and 56 – 86 herein,
(b) the services rendered,
(c) the benefit bestowed on the First Respondent by reason of the services rendered, for which:
i.the Applicant was not a volunteer;
ii. the Applicant has not been renumerated in accordance with law, or otherwise, and
iii. the First Respondent had and has no entitlement to retain without the payment of due consideration (the benefit), and
(d) the fact that the First Respondent has knowingly and intentionally deprived the Applicant of the benefit, together constitute circumstances that support the allegation that the First Respondent has participated in an unconscionable and dishonest bargain, in respect of its dealing with the Applicant (the unconscionable dealings).
[93]The unconscionable dealings necessitate the imposition of a remedial constructive trust so as to do justice and equity between the Applicant and the First Respondent (the constructive trust).
[94]The property of the constructive trust is the value of the remuneration that the First Respondent would have had to pay at law to the Applicant or another employee to perform the services rendered on reasonably renumerated basis (the trust property).
[95]     The Applicant is the beneficiary of the constructive trust.
[96]     The First Respondent is the trustee of the constructive trust.
[97]The First Respondent, by reason of an intentional and dishonest design to permanently deprive the Applicant of the trust property, has acted in breach of the constructive trust.
Particulars of the intentional dishonest design
(a)Since in or about 2016, and perhaps earlier the First Respondent has been on notice of the requirement to pay the Applicant fair remuneration at law for the services rendered, the subject of the trust property, but despite this knowledge imputed to it by reason of the facts pleaded at paragraph 98 below, has intentionally avoided doing so.
(b) Despite the facts and matters particularised at (a) above, and further to them, the First Respondent intentionally and dishonestly engaged in the conduct pleaded at paragraphs 29 to 80C. herein with a view to depriving the Applicant of the trust property.
(c)Further particulars will be provided after discovery.
[98]Since from as early as, if not before, 2009, one or more of the Second to Tenth Respondents, variously, have been knowingly involved in and assisted in the intentionally dishonest design of the First Respondent, as trustee of the constructive trust, to permanently deprive the Applicant of the trust property.
Particulars
(a) Email chain dated 15 December 2016 between Steve Flori and Robert Craig regarding the subject “Re: Kates Wages”.
(b) Further particulars to be provided after discovery.
[99]The relevant knowledge is demonstrated in the first instance by the email chain dated 15 December 2016 between Steve Flori and Robert Craig regarding the subject “Re: Kates Wages” (the knowledge).
Particulars
Further particulars will be provided after discovery.
[100]The knowledge makes the Second and Tenth Respondents accessorily liable to First Respondent’s breach of the constructive trust.
[101] It was not until in or about October 2022, when the Applicant’s legal representatives examined the material in her possession for the purposes of preparing her evidence, that the Applicant realised the Respondents’ intentionally dishonest design.
[102]In the premises of paragraphs 92 to 101 herein, the Respondents are liable to pay equitable compensation to the Applicant for the breach of the constructive trust in an amount so as to restore to her the value of the trust property.
Particulars of the value of the trust property
The Applicant relies upon the report of Clayton Hickey report dated 8 February 2022, as updated from time to time.”

It is of note that at [94] of the proposed FASOC, the property of the constructive trust was claimed to be the value of the remuneration which was alleged to be the amount that the first respondent would have been required to pay to the applicant at law.
On 9 December 2021, a List of Documents was filed on behalf of the first respondent. No List of Documents was filed on behalf of any of the second to tenth respondents. As was deposed to by Ms Engel at [7] of her affidavit filed on 12 March 2023, the applicant had never made any complaint in relation to the second to tenth respondents not making disclosure until 5.04 pm on 6 February 2023 when the applicant’s lawyers served the affidavit of Mr Amirbeaggi - almost one year and two months after the filing of the first respondent’s List of Documents. It was in that affidavit of Mr Amirbeaggi that the request was made for the discovery of all records relating to the applicant’s employment which had been held, or were being held, by each of the respondents, for the period from 1 January 2010 until 31 December 2022. No satisfactory explanation has been advanced on behalf of the applicant as to why there was such a lengthy delay in the making of a complaint about non-disclosure of documents said to be relevant. Due to the lengthy period of time which elapsed between the filing of the List of Documents on 9 December 2021 and the making of complaint about discovery on 6 February 2023, the Court does not accept as valid the explanation advanced by Mr Amirbeaggi at [17] of his affidavit of 6 February 2023, which was as follows:
[17]Because of the complications identified in paragraphs 11 to 16 above [namely the unavailability of Junior or Senior Counsel and the alleged refusal of potential witnesses to assist in giving evidence], and my opinion that YBL [the applicant’s lawyers] should take the evidence of third-party witnesses whilst they were still available and willing to give it, YBL prioritised the third-party witness evidence over the applicant’s evidence. Because of that ordering, YBL only came to learn of many relevant facts and matters from the applicant after YBL had already completed the third party evidence.
(underlining and explanation inserted)
On 12 March 2023, a Sunday, and the day before the hearing, six further affidavits were filed out of time on behalf of the applicant.
Between 6 February 2023 and the first day of hearing, the legal representatives for each of the parties argued about whether the second to tenth respondents’ penalty privilege claim had been waived or not, and whether proper discovery of relevant material had been made by and on behalf of all of the respondents. [5]
[5] See affidavit of Mr Amirbeaggi filed on 6 February 2023 at 5.01 pm; Annexures FA-1, FA-2, FA-3 to
On 10 March 2023, three days before the commencement of the trial, an application was filed on behalf of the applicant seeking the following orders:
1.That the First to Tenth Respondents each give verified disclosure of the records identified in correspondence from the Applicant's solicitor dated 9 February 2023, time stamped 7:12pm.
2. That pursuant to Rule 13.04(2)(b)(iii) and (iv) and (v) and (vi) and 13.05(2)(c) and (d) the First to Tenth Respondents' Defence be struck out and judgement be entered for the Applicant on her claim on an assessment as to damages and penalty.
3. That the First to Tenth Respondents pay the Applicant's costs of this Application.
4.That until further Order the Second to Tenth Respondents unless in the ordinary course of day to day living or business be restrained from dealing in any way with their assets and that within 7 days of Order each Respondent file with the Court as affidavits of its / their assets and liabilities.
Though the applicant had been given leave to file and serve the FASOC – the FASOC was filed under the heading “Outline of Submissions” on 13 March 2023 – the question as to whether the applicant would be able to rely upon that proposed amended pleading was reserved for the hearing of submissions to be made at the commencement of the trial on 13 March 2023.

Whether Applicant Ought To Be Granted Leave To Amend

On 15 February 2023, an application seeking the Court’s leave to further amend the Amended Statement of Claim by pleading a constructive trust claim was filed on behalf of the applicant.
It was conceded on behalf of the respondents that the Court had jurisdiction under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act) to hear and determine the constructive trust claim sought to be agitated in the event of leave being granted to the applicant to rely upon the FASOC. The Court accepts that such concession was appropriate.
It was submitted on behalf of the respondents that there had been a long standing history of delay on the part of the applicant, as evidenced by the fact that the applicant had sought to extend the date for filing her evidence on four occasions resulting in the Court vacating previous orders, and making further orders granting such extensions by orders made on 16 August 2022, 1 September 2022, 13 September 2022 and 7 October 2022. The Court accepts such submissions.
It is noteworthy that by Court orders made on 7 October 2022, trial dates which had been set aside for a hearing of the proceeding from 14 November 2022 to 25 November 2022 were vacated due to the late filing by the applicant of her trial affidavit evidence. Such adjournment resulted in each party incurring costs in a regime where pursuant to s. 570 of the Fair Work Act 2009 (Cth) (FWA), costs do not usually follow the event. Another consequence of such orders was that valuable Court time was lost. The opportunity for other compliant litigants to have their matters heard and determined on the sitting days vacated was also lost.
Section 139 of the Act was enacted for the purpose of making it clear that, where possible, all matters in controversy between the parties ought to be completely and finally determined, and that multiplicity of proceedings should be avoided. That section relevantly provided as follows:
“Section 139: Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:
(a)    absolutely; or
(b)    on such terms and conditions as the Court thinks just:
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)    all matters in controversy between the parties may be completely and finally determined; and
(d)    all multiplicity of proceedings concerning any of those matter may be avoided. “
Section 139 of the Act, however, must be read in conjunction with ss. 190 and 191 of the Act which relevantly provided as follows:
Section 190: Overarching purpose of civil practice and procedure provisions
(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.
Note 1: See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(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.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Section 191: Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
Note: Paragraph (b)—in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.”
The application to amend was based upon evidence contained in emails which came into the applicant’s possession on 21 August 2021. The Court finds that the alleged significance of the content of the relevant emails would have been immediately obvious to the applicant, so as to require her to immediately pass on such documents to her lawyers, and to impress upon her lawyers the alleged significance of same. The Court infers that either the applicant failed to take any such action, or that the applicant’s lawyers failed to take steps to seek leave to amend the pleadings in a timely manner. There has been no satisfactory evidence which has been adduced on behalf of the applicant either explaining why she had failed to appropriately instruct her lawyers as to what was on one view evidence of an admission of underpayment of wages due to her by the first respondent, or otherwise as to why it took so long for an application for leave to amend to be filed at a time so close to an imminent trial. The Court does not accept the submission that the constructive trust claim does not require any further evidence to be traversed at trial. The evidence of Mr Amirbeaggi that further discovery of documents dating back to 2010 would be required as a result of the proposed amendment flies in the face of such submission.
It was also noteworthy that though the first day of trial was listed for 13 March 2023, the applicant had continued to file affidavits intended to be relied upon, out of time, as late as 12 March 2023. That conduct must also be viewed in the context of there being over seventy (70) people, who have either sworn affidavits on behalf of the applicant, or who have been subpoenaed to appear at court to give evidence on behalf of the applicant. Senior Counsel for the applicant had been asked by the Court - on at least two occasions during earlier directions hearings - to assess the nature of evidence each class of witness fell into with a view to culling the large number of witnesses who were intended to be called on behalf of the applicant at trial. As late as 15 March 2023, with exquisite nonchalance, it was said to the Court that no forensic decision concerning the number and identity of witnesses to be called on behalf of the applicant had yet been made.
The failure on the part of the applicant to comply with interlocutory Court orders relating to the filing of affidavit evidence has also potentially caused financial loss to the first respondent. The first respondent has, since 16 February 2022, been restrained, by order of Justice Logan (sitting on appeal from an interlocutory order of Judge Vasta refusing an application for an injunction), from requiring the applicant to vacate a cottage previously occupied by the applicant, in circumstances where the first respondent could otherwise have rented out such cottage for monetary gain.
Further, the evidence of Mr Amirbeaggi at [23] of his affidavit that should leave to amend the Amended Statement of Claim be granted, a further 12 years of records for the period between 1 January 2010 and 31 December 2022 will need to be disclosed clearly illustrates that at this late stage it would be inevitable that the trial would again have to be adjourned so as to allow the respondents to assess and collate a large volume of documents, all because of the tardiness of the applicant in bringing on its amendment application for interlocutory hearing. Three hearing days from 13 – 15 March 2023 have already been lost due to arguments associated with the application for leave to amend, and the further and better disclosure and summary judgment applications. The Court has already set aside a further 11 days for the hearing of this matter, 5 of which would most likely be lost should the amendment application succeed.
The Court finds that the delay on the part of the applicant over time prevented:
(a)A quick, inexpensive and efficient resolution of the dispute contrary to the provisions of s. 190(1)(b) of the Act;
(b)The efficient use of the judicial and administrative resources available for the purposes of the Court contrary to the provisions of s. 190(2)(b) of the Act;
(c)The efficient disposal of the Court’s overall caseload contrary to the provisions of s. 190(2)(c) of the Act;
(d)The disposal of proceedings in a timely manner contrary to the provisions of s. 190(2)(d) of the Act;
(e)The resolution of the dispute at a cost which was proportionate to the importance and complexity of the matters in dispute contrary to the provisions of s. 190(2)(e) of the Act.
The Court finds that the applicant has not conducted the proceeding in a way that is consistent with the overarching purpose of the Act as set out in s. 190 of the Act.
The Court respectfully adopts what was respectively held by French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [30] per French CJ, and at [95], [97] and [111] – [114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said:
“[30] It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
…
[95]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. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. 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.
…
[97]The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind [166]. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
…
[111]An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases [176]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
[112]A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113]In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy [177]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114]Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.”

The Court finds that the cost and prejudice to the respondents of any further delays in the hearing and determination of this proceeding far outweighs the benefit which might accrue to the applicant by pleading a further cause of action based upon an alleged constructive trust. That is particularly so in circumstances where the value of the constructive trust is claimed to be the amount of alleged underpayment, over time, of the wages allegedly payable to the applicant, the claim for which, and the quantification of which, is already on foot in the substantive action as pleaded. That claim, of course, is limited at law to the extent that it is able to be argued, having regard to the relevant 6 year limitation period imposed by s. 545(5) of the FWA. The quantum meruit claim is likewise so limited.
The Court does not accept the submission that in any event the Court needs to go beyond the six year period limited for the making of the claim for the purposes of assessing penalties in a historical way since the time of commencement of the applicant’s employment. The Court finds that the relevant period for such purpose is the period of time within which the claim for underpayment was able to be made. That approach recognises the public interest considerations which have been recognised by the enactment of limitation legislation – namely the desirability of having matters finally determined and limited in time for the making of claims.
In all of the circumstances, the Court finds that it would be contrary to public policy, as well as contrary to the legislative intent of parliament, for leave to be granted to the applicant to amend the Amended Statement of Claim so as to rely upon the FASOC.
The application to amend filed on 15 February 2023 is accordingly refused.

Application For Disclosure Of Records And Waiver Claim

By reason of the Court’s refusal of the application to further amend the Amended Statement of Claim, the application for further production of all records relating to the applicant’s remuneration which came into existence before the limitation period came into effect, and which were said to be necessary because of the disclosure of annexure FA-1 to the affidavit of Mr Amirbeaggi filed on 6 February 2023, is refused.
As to the applicant’s claim for further disclosure, in his email to the lawyer for the respondents dated 9 February 2023 sent at 7.12 pm, Mr Amirbeaggi sought further disclosure as follows: [6]
[6] Annexure FA-1 to affidavit of Mr Amirbeaggi filed on 9 March 2023 at 6.15 pm at p. 1.
“Dear Angela,
I refer to the directions hearing before Judge Egan on 7 February 2023.
At that directions hearing, the issue of further discovery sought from your clients in accordance with their ongoing obligations of discovery / disclosure pursuant to the earlier orders was discussed. A certain category of additional documents which ought to have been discovered but which were not was included in the draft orders attached to the writer’s affidavit of 6 February 2023. On reﬂection, there are a number of categories that should have been discovered / disclosed but where no or only limited documents have thus far been. Those categories are:
1.Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, Instagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties concerning the working conditions or remuneration of Ms Harper at the Club. No such documents have been produced. Please produce them within 14 days.
2. Documents (whether hard, soft, recorded, digital, analogue, or transmitted on an phone application such as Signal, WeChat, SnapChat, Facebook, Instagram, WhatsApp etc) recording communications between any of the Respondents or between any of the Respondents and third parties between 1 January 2020 to date concerning the proceedings. No such documents have been produced. Please produce them within 14 days.
3.Minutes of meetings (or any visual or audio recording of meetings) for the Committee of the First Respondent, members meetings, AGMs or EGMs during the period 1 January 2000 to date. Please produce them within 14 days.
4. Minutes of meetings (or any visual or audio recording of meetings) for any meeting of sub-committees formed by Mr Flori to consider the working conditions and wages of Ms Harper at the Club. No such documents have been produced. Please produce them within 14 days.
Please do not hesitate to call to discuss any aspect of the matter or this request.
Yours faithfully,
Farshad Amirbeaggi | Principal
Yates Beaggi Lawyers | Incorporated Legal Practice
…”
Argument was advanced on behalf of the applicant that each of the second to tenth respondents have waived their claim for penalty privilege, and that to the extent that any of them had access to, and control over, relevant data/documents relating to the applicant’s remuneration stored on private computers, such documents were liable to be disclosed by them. The claimed documents dated back to the period from the start of the applicant’s employment until February 2023. There is no merit to such claim.
The Court respectfully adopts, for the purpose of the resolution of the applicant’s claim that the second to tenth respondents have waived their penalty privilege claim, the characterisation given by Her Honour Kiefel J (as Her Honour then was) in JL Holdings Pty Ltd v State of Queensland (1996) 71 FCR 545 when considering the effect of interlocutory orders there the subject of Her Honour’s consideration. At pp. 547 – 548 Her Honour said:
“The respondents submit that the order is to be seen simply as an interlocutory one, to which the parties acceded, but did not consent. Further, in their submission, there is power to vary the order under the Federal Court Rules 1979 (Cth), O 35, r 7, and in this connection they rely upon what has occurred since then, which is to say that the litigation turned out to be more complex and costly than was earlier predicted. Having observed the expansion of issues and the number of interlocutory points taken, I have no difficulty in accepting that submission.
Reliance was placed by the applicant upon the characterisation of the agreement as being in the nature of a binding contract and, therefore one with which the Court would not interfere except on ordinary principles relating to contract: Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189; [1982] 1 All ER 377 at 379-380. For the respondents it was submitted that it was the order which ought to be considered. It was interlocutory in nature and the courts always maintained a discretion to vary or alter such an order, as that case also held (at 190).
The order Lord Denning was there concerned with was one expressed to be “by consent”. In that connection his Lordship pointed out the difference between an order expressed to be by consent and which does in fact evidence a real contract, and an order which conveys merely the absence of objection to a proposal. In the context of orders made during the course of proceedings and concerning their conduct, it seems to me that they will more commonly fall into the latter category and that it will be difficult to find a truly binding contract. And, in this connection, it might also be observed that the applicant made concessions with respect to the respondents' application for security for costs only when faced with prospect of an order being made on terms to be determined by the Court. What gives it more of the flavour of a contract is the concession that the respondents would not apply for further security until the commencement of the trial. It suggests some “give and take” on each side. That is not, in my view, to say that a binding and enforceable agreement was entered into. Rather the matter here, it seems to me, falls to be determined by having regard to what has occurred since the parties agreed upon that course of **548 action, what they have done upon the faith of it and whether any prejudice would now result if an order were made. They are matters which will affect the exercise of the discretion to vary an order. The power to do so, with respect to orders for security, however remains with the Court: see s 56(3) Federal Court of Australia Act 1976 (Cth).”
In the matter before the Court, as earlier set out in paragraphs 6 – 10 of this judgment, orders of this Court made on 27 October 2021 were made as part of the Court’s case management processes. The draft orders sent to Judge’s Chambers were not headed “By Consent”, and neither were the orders made by the Court that day expressed to be orders made “By Consent”. The final orders made on 27 October 2021 differed from various drafts which had been sent both to the parties from Judge’s Chambers by the Associate as well as to Judge’s Chambers from Senior Counsel for the applicant.
The fact that the order required “the parties” to each make, file and serve an affidavit of disclosed documents did not preclude the second to tenth respondents from exercising their right to claim penalty privilege, a privilege which had been claimed at the time that the Defence was first filed. In Birrell v Australian National Airlines Commission (1984) 1 FCR 526 at 532, Gray J said as follows:
“On the other hand, it does not seem to me that a contract of the kind which I have found to exist could properly be construed as involving a waiver of the privilege altogether. When a party to litigation consents to an order for discovery, that party is not normally taken to have waived any privilege which might attach to any document.”
In Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [39], the High Court held:
“[39]The primary judge ordered that the appellants make discovery of documents by verified list. That order would permit the appellants to object to production of any document on a ground of privilege. At first sight, that might suggest that the appellants' challenge to the order for provision of a verified list of documents is premature. That is, it might suggest that any question of privilege is one about privilege from production rather than privilege from making discovery. That is not so. As Isaacs J pointed out in R v Associated Northern Collieries[51], once it is determined that the proceedings expose a person to penalty, the proper course is to refuse any order for discovery. As Isaacs J said [52], to leave the party at risk of penalty to object to production of documents, having first listed them, may lead to the very mischief which the privilege is designed to prevent. In the words of Lord Coleridge CJ in Jones v Jones [53], to which Isaacs J referred [54]:
"The whole case for the plaintiff may depend upon his power to trace a particular document into the possession of the defendant, and, upon its non‑production, to prove its contents by secondary evidence."
That being so, the proper course in this matter was to refuse the application for discovery.”
As in JL Holdings, the mere absence of objection by the respondent’s Counsel to the Court making an order that the parties should undertake disclosure after the filing of an affidavit of documents did not constitute a binding contract. The power to make orders always remained with the Court, as was apparent from the fact that dates for the filing of documents were changed by the Court from the dates included in the drafts submitted to the Court. Counsel for the respondents well appreciated, by reason of his earlier appearances before the Court, that it was the Court’s practice to make general orders for discovery in matters where, subsequently, penalty privilege claims were duly made and recognised by the Court. Additionally, the Court infers that the email of 27 October 2021 sent to Judge’s Chambers by Senior Counsel was couched in such a way that the legal representatives for the parties acknowledged that the ultimate decision about what orders were made vested solely with the Court by the inclusion of the following:

“We have agreed to amended orders which are attached for his Honour’s consideration and discussion at 9.45am”
The submission of draft orders to the Court in a form close to the actual orders finally made was part of a routine practice designed to facilitate the efficient operation of the Court and its processes. In circumstances where the second to tenth respondents had not clearly and unequivocally resiled from their pleaded position in both their Defence and their Amended Defence that they claimed penalty privilege, there was no waiver by them of any such claim.
Further, in circumstances where for more than a year the applicant had failed to make application for discovery by the second – tenth respondents after having known of the non-filing by them of a List of Documents on 9 December 2021, and subsequently, and in the light of there having been no express abandonment of the pleaded privilege claim, the applicant’s own delay disentitles her from seeking further discovery at such a late stage of the proceedings based upon the doctrine of laches.
No question of estoppel arose. The Court finds that at no time did the second to tenth respondents, by any act or omission, encourage the applicant’s legal advisors to believe that they had waived their right to claim penalty privilege. Further, due to the delay on the part of the applicant in pursuing a claim for further and better disclosure on the part of the second to tenth respondents, it’s hard to identify what detriment the applicant may have suffered in any event.

Whether The Second To Tenth Respondents Are Liable To Make Disclosure as Officers or Agents of The First Respondent

The question of discovery by a corporate entity where the effect of disclosure would result in a director of such entity losing the benefit of a privilege claim has been considered in a number of cases. In Menses & Anor v Directed Electronics OE Pty Ltd (2019) 273 FCR 638 at [152], it was held per Moshinsky, Wheelahan and Abraham JJ as follows:
“[152]Thirdly, and relatedly, the primary judge ordered Mr Meneses (in addition to OE Solutions) to produce the relevant documents. Given the primary judge’s finding (in response to question 6) that the relevant documents had a real and appreciable tendency to incriminate Mr Meneses or to expose him to a civil penalty, we assume that the order was directed to Mr Meneses in his capacity as agent for OE Solutions. However, in light of the discussion of the principles set out earlier in these reasons, we do not consider it open to order an individual who is himself or herself at risk of prosecution or the institution of proceedings for a civil penalty to produce the relevant documents on behalf of a company. This would require that individual to undertake an act of self-incrimination or self-exposure to penalties. To the extent that the US cases suggest that an act of production by a director of a company is merely an act as agent for the company, those cases do not reflect Australian law.”
In Devine Maring Group v Fair Work Commission (2013) FCA 442 at [66] – [67], Lander J held as follows:
“[66]However, a court should not make an order requiring a corporate respondent to make discovery if, by complying with that order, a natural person would be denied the privilege otherwise entitled to that person: Microsoft Corporation v CX Computer Pty Ltd at [32]-[33].
[67]It follows, therefore, that if a corporate respondent can give discovery without thereby requiring a natural person to lose that person’s own entitlement to privilege, an order can be made. If, however, the corporate respondent can only give discovery by requiring a natural person to forego that person’s right to privilege, an order should not be made.”
The Court is bound by the above authorities. The second to tenth respondents will not be required to make disclosure of documents which would render ineffectual their respective privilege claims, either in their own capacity, or in their capacities as officers or agents of the first respondent. The application for such disclosure is accordingly refused.
Additionally, for the same reasons as set out in the Court’s judgment for its refusal of the application for leave to amend the Amended Statement of Claim, the Court refuses the application filed on behalf of the applicant on 13 March 2023 based upon the applicant’s delay in earlier seeking further discovery. At this late stage of the proceeding, any further delay will necessarily cause prejudice and further expense to be suffered by the respondents, as well as resulting in the adjournment of the trial, either in part or in full. Trial dates set aside will be lost, and the Court diary will again be put under pressure due to the delay on the part of the applicant in attending to interlocutory matters in a timely way. The first respondent has already made disclosure and the trial is otherwise ready to proceed on 20 March 2023.
The injunction sought in the application filed on behalf of the applicant on 13 March 2023 is refused as a consequence of the findings of the Court in its reasons, as is the application for summary judgment.
The Court will hear the parties as to costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated: 20 March 2023

SCHEDULE OF PARTIES

BRG 311 of 2021
Respondents
Fourth Respondent:	LISA-JANE STUBBS
Fifth Respondent:	JONATHAN MOORE
Sixth Respondent:	VICKI GAYE MCKENNA
Seventh Respondent:	DOROTHY LESLEY JAMES
Eighth Respondent:	OWEN MORRIE MCKENNA
Ninth Respondent:	ROSS MCNIVEN
Tenth Respondent:	SAMUEL ROBERT REYNOLDS

(CB) at pp. 100 – 102. the affidavit of Mr Amirbeaggi filed on 9 March 2023