MCKELLAR v Jetstar Airways Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKELLAR v JETSTAR AIRWAYS PTY LTD [2010] FMCA 242

PRACTICE AND PROCEDURE – Grant of leave to amend application and statement of claim on first day of hearing – consideration of affect of amendments when matter would not have completed within scheduled hearing time in any event – comment on speed of obtaining hearings in FMC.

Federal Magistrates Court Rules 2001

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
Pascoe v Boensch & Anor (No 9) [2009] FMCA 769

Applicant: ANTHONY MCKELLAR

Respondent: JETSTAR AIRWAYS PTY LTD

File Number: SYG 2210 of 2009

Judgment of: Raphael FM

Hearing date: 23 March 2010

Date of Last Submission: 23 March 2010

Delivered at: Sydney

Delivered on: 23 March 2010

REPRESENTATION

Counsel for the Applicant: Mr M Kimber SC

Solicitors for the Applicant: Australian & International Pilots Association

Counsel for the Respondent: Mr P O’Grady

Solicitors for the Respondent: Freehills

ORDERS

1. Application to amend allowed.

2. Respondent to file an amended response and an amended defence.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2210 of 2009

ANTHONY MCKELLAR

Applicant

And

JETSTAR AIRWAYS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This proceeding is one that was brought in the industrial jurisdiction of this Court by way of an application filed on 10 September 2009 and a statement of claim filed on the same day.  The matter went through the usual interlocutory processes of this Court, receiving a hearing date on 22 March 2009, well within this Court’s usual timeframe for providing parties with a hearing, such timeframe being, in my view, superior to any other Court in the Commonwealth of Australia.

2. The case is not a simple one involving as it does the interpretation of some complex industrial agreements.  That was only to be expected knowing that the applicant was employed as an airline pilot by a substantial airline.  Unfortunately, the manner in which the applicant’s case was articulated required a further amended application, which was filed on 22 December 2009, pursuant to orders of this Court made on 9 December, and by the time the matter came before me for hearing, the view was taken that even that document needed some substantial amendment.

3. It was the debate as to whether these amendments could be permitted that took up the first part of the first day of hearing.  I then adjourned the matter so that there could be put before me and before the respondents a second further amended application and statement of claim upon which argument could be based.  That document was received this morning.  As foreshadowed, there are, essentially, four grounds of amendment.  In order to understand them, it is necessary to explain shortly that the applicant was employed as a first officer on Airbus A320 aeroplanes by the respondent in March 2008.

4. In order to carry out those duties he was required to be trained.  There were two aspects to that training.  The…