FEDERAL COURT OF AUSTRALIA
Montgomery v Bluescope Steel Ltd [2019] FCA 1558
File number: VID 269 of 2018 Judge: WHEELAHAN J Date of judgment: 20 September 2019 Catchwords: PRACTICE AND PROCEDURE – application for non-standard discovery – applicant’s application to amend further amended statement of claim. Legislation: Fair Work Act 2009 (Cth) s 351, s 361
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 r 16.07, r 16.21, r 16.41, r 20.13, r 20.14
Sex Discrimination Act 1984 (Cth) s 5B, s 7D
Cases cited: Banque Commerciale SA, en liquidation, v Akhill Holdings Ltd (1990) 169 CLR 279
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) [2012] HCA 32; 248 CLR 500
Bruce v Odhams Press Ltd [1936] 1 KB 697
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413
Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149
Date of hearing: 31 May 2019 Date of last submissions: 7 June 2019 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: Mr J. D’Abaco Solicitor for the Applicant: Zeitz Workplace Lawyers For the First, Second, Third, Fourth and Fifth Respondents: Mr S. Dewberry (Solicitor) Solicitor for the First, Second, Third, Fourth and Fifth Respondents: Allens Lawyers ORDERS
VID 269 of 2018 BETWEEN: ANDREW MONTGOMERY
Applicant
AND: BLUESCOPE STEEL LTD TRADING AS BLUESCOPE
First Respondent
ALEC HIGHNAM
Second Respondent
KERRIE THURLOW (and others named in the Schedule)
Third Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
20 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The applicant’s application to amend paragraph 73 of the second further amended statement of claim is refused, subject to order three below.
2.Orders 19 and 20 of the orders made on 8 April 2019 and orders 2 to 14 of the orders made on 12 June 2019 be set aside.
3.On or before 4 October 2019 the applicant make any further application for leave to amend paragraph 73 of the second further amended statement of claim.
4.By 4.00pm on 18 October 2019, the respondents give non-standard discovery of documents in the categories of documents as agreed between the parties, together with the following, referred to in the reasons for judgment published 20 September 2019 –
(a)All draft copies of the allegations into the applicant’s conduct.
(b)All draft copies of any report written by the fourth respondent into the allegations made against the applicant.
(c)All documents, including file notes emails and recordings of officers or employees of North Star BlueScope and/or Intelex relating to requests by those officers or employees that the Toronto Workshop conducted in September 2017 be held in Delta, United States.
(d)The documents of the respondents commissioning the report of Rachel Cornes of Q Workplace Solutions…
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- Case
- [2019] FCA 1558
- Decision Date
CaseChat Overview and Summary
The court examined the applicant's request to amend his pleadings to include specific allegations. The court noted that the respondents argued that the category of documents in question was irrelevant because there was no dispute that a workers' compensation claim had been made. However, the court found that the category was relevant due to the effect of s 361 of the Fair Work Act and the burden on the respondents. Consequently, the court ordered non-standard discovery of certain documents, including draft copies of allegations, reports, and correspondence related to the applicant's WorkCover claim.
The court refused the applicant's application to amend paragraph 73 of the second further amended statement of claim but allowed a further application for leave to amend to be made by a specified date. Additionally, the court set aside certain previous orders and imposed detailed case management directions, including deadlines for document discovery, witness lists, and the preparation of the Court Book. Costs were reserved, and liberty to apply was granted.
In summary, the court denied the amendment to the pleadings but granted non-standard discovery of specific documents and set out comprehensive case management orders to govern the proceeding's progress.
Orders
Orders of the court
1. The applicant’s application to amend paragraph 73 of the second further amended statement of claim is refused, subject to order three below.
2. Orders 19 and 20 of the orders made on 8 April 2019 and orders 2 to 14 of the orders made on 12 June 2019 be set aside.
3. On or before 4 October 2019 the applicant make any further application for leave to amend paragraph 73 of the second further amended statement of claim.
4. By 4.00pm on 18 October 2019, the respondents give non-standard discovery of documents in the categories of documents as agreed between the parties, together with the following, referred to in the reasons for judgment published 20 September 2019 –
(a) All draft copies of the allegations into the applicant’s conduct.
(b) All draft copies of any report written by the fourth respondent into the allegations made against the applicant.
(c) All documents, including file notes emails and recordings of officers or employees of North Star BlueScope and/or Intelex relating to requests by those officers or employees that the Toronto Workshop conducted in September 2017 be held in Delta, United States.
(d) The documents of the respondents commissioning the report of Rachel Cornes of Q Workplace Solutions and the said report.
(e) All correspondence between the second, third, fourth and fifth respondents (or any of them) in relation to the applicant’s WorkCover claim between 20 December 2017 and 31 December 2017.
5. Any inspection of documents is to take place by 1 November 2019.
6. By 4.00pm on 1 November 2019, each party make application for leave to issue any subpoenas for production of documents.
7. By 4.00pm on 8 November 2019, the applicant file and serve:
(a) a list of witnesses whom the applicant intends to call to give evidence at trial;
(b) an outline of the substance of the evidence, including a detailed account of critical conversations, to be given in evidence-in-chief by each listed witness; and
(c) a list of the documents on which he intends to rely at trial.
8. By 4.00pm on 6 December 2019, the respondents file and serve:
(a) a list of witnesses whom the respondents intend to call to give evidence at trial;
(b) an outline of the substance of the evidence, including a detailed account of critical conversations, to be given in evidence-in-chief by each listed witness; and
(c) a list of the documents on which they intend to rely at trial.
9. By 4.00 pm on 13 December 2019, the parties' counsel are to confer between themselves and the parties are to inform the Court of counsels' estimate of the likely duration of the hearing.
10. By 4.00 pm on 20 December 2019, the parties serve lists of objections to any document contained in another party's list of documents, referred to in orders 7 and 8 above, including the basis for any objection.
11. By 4.00 pm on 31 January 2020, counsel for the parties arrange to confer with a view to resolving evidentiary objections.
12. By 4.00 pm on 14 February 2020, the applicant file and serve:
(a) a written outline of submissions that shall not exceed 10 pages in length; and
(b) a list of authorities in accordance with practice note GPN-AUTH.
13. By 4.00 pm on 6 March 2020, the respondents file and serve:
(a) a written outline of submissions that shall not exceed 10 pages in length; and
(b) a list of authorities in accordance with practice note GPN-AUTH.
14. By 4.00 pm on 13 March 2020, the applicant serve on the respondents a draft index of the Court Book, setting out:
(a) the latest versions of the pleadings;
(b) each party's outlines of submissions; and
(c) in chronological order, the documents intended to be relied upon by each party at trial, identifying which party or parties intend to rely on the document. Any document that is the subject of a foreshadowed objection by any party should be entered into the draft index in italic print and the name of the objecting party noted in parenthesis.
15. By 4.00 pm on 20 March 2020, the respondents serve on the applicant any amended draft index of the Court Book.
16. By 4.00 pm on 27 March 2020, the parties confer to agree on the contents of the Court Book index.
17. By 4.00 pm on 6 April 2020, the applicant file in electronic form and serve a copy of the Court Book pursuant to the agreed Court Book index that:
(a) is produced in a text-recognised PDF format;
(b) is paginated and chronologically ordered throughout;
(c) contains electronic bookmarks to each document in the court book; and
(d) includes an index.
Any document that is the subject of an outstanding objection should be listed in the index but not included in the Court Book.
18. By 4.00pm on 9 April 2020, the parties file and serve a list of objections that remain after the parties have made reasonable endeavours to resolve those objections pursuant to order 11 above.
19. By 4.00pm on 9 April 2019, the parties file and serve:
(a) a joint list of legislation and authorities to be relied upon at hearing;
(b) provide the Court with a USB containing electronic copies of each authority in text-recognised PDF format.
20. Costs reserved.
21. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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