O’Brien v Caboolture Aero Club Inc

Case [2024] FCA 392


FEDERAL COURT OF AUSTRALIA

O’Brien v Caboolture Aero Club Inc [2024] FCA 392  

File number(s): QUD 2 of 2023
Judgment of: MEAGHER J
Date of judgment: 18 April 2024
Catchwords:

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – whether there is sufficient explanation for the delay – whether amendments are ‘hopeless’ and could not succeed – whether there is prejudice suffered by the respondents – whether issues arise out of the same substratum of facts – amendments required to determine the real questions in controversy – sufficient explanation for delay – amendments allowed

PRACTICE AND PROCEDURE – application for Court-ordered mediation – lack of consent to attend mediation – where significant costs have been incurred – proceedings referred to mediation

Legislation:

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth)

Fair Work Act 2009 (Cth)

Federal Court Act 1976 (Cth)

Workers Compensation and Rehabilitation Act 2003 (Cth)

Federal Court Rules 2011 (Cth)

Anti-Discrimination Act 1991 (Qld)

Fair Work Bill 2008

Airline Operations – Ground Staff Award 2020

Miscellaneous Award 2020

Cases cited:

Aitken v Virgin Australia Airlines [2013] FCCA 981

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Barnett v Territory Insurance Office (2011) 196 FCR 116

Braun v St Vincent’s Private Hospital Northside Ltd [2023] FCA 166

Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261

Civil Air Operations Officers Association of Australia v Air Services Australia (No. 2) [2021] FCA 993

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No. 2) [2010] FCA 652

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345

Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118

Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (In liquidation) (No 4) [2021] FCA 1242

Ghobrial v Spectrum Migrant Resources Centre [2022] FedCFamC2G 358

Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 865

Hanna v Australian Securities and Investment Commission [2011] FCA 1077

Martens v Indigenous Land Corporation [2017] FCCA 896

Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66

Reillyv Australia and New Zealand Banking Group Limited (No 2) [2020] FCA 1502

Roohizadegan v TechnologyOne Ltd (No 2) [2020] FCA 1407

Shannon v Lee Chun (1912) 15 CLR 257

Skinner v Commonwealth of Australia [2012] FCA 1194

SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2

Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (a Firm) [2015] FCA 1098

University of Sydney v ObjectiVision Pty Ltd [2016] FCA 1199

Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment…

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Details
AGLC
O’Brien v Caboolture Aero Club Inc [2024] FCA 392
Case
[2024] FCA 392
Decision Date

CaseChat Overview and Summary

The matter before the Court involved an interlocutory application brought by Mr O’Brien against the Caboolture Aero Club Inc and its President, Mr Coburn. The applicant sought leave to amend his statement of claim to allege contraventions of specific sections of the Fair Work Act 2009 (Cth), the Miscellaneous Award, and the Anti-Discrimination Act 1991 (Qld). The applicant also sought a Court-ordered mediation. The legal issues before the Court were whether the applicant provided sufficient explanation for the delay in seeking to amend his statement of claim, whether the proposed amendments were futile and could not succeed, whether the respondents would suffer prejudice if the amendments were allowed, and whether the issues arose out of the same substratum of facts.

The Court found that the applicant had provided a sufficient explanation for the delay in seeking to amend his statement of claim. The Court also found that the proposed amendments were neither futile nor would they result in substantial injustice to the respondents that could not be addressed with costs. The Court was satisfied that the proposed amendments would enable the determination of the real questions in controversy between the parties. The Court further found that the parties' lack of consent to attend mediation was not an indication of the mediation's prospects of success and that mediation would be beneficial in the circumstances. The Court therefore allowed the application for leave to amend the statement of claim and ordered that the proceedings be referred to mediation.

The Court ordered that the applicant file and serve the amended statement of claim by 4:00 pm AEST on 26 April 2024, and that the respondents file and serve an amended defence and any affidavit evidence by 4:00 pm AEST on 10 May 2024. The Court further ordered that the mediation be conducted by 17 May 2024 and that the mediator report the result of the mediation to the Court following the end of the mediation. The costs of the interlocutory application were reserved. The Court also made several orders regarding the trial of the matter, including orders relating to the filing and serving of outlines of submissions, lists of witnesses, and eBooks of authorities.

Orders

Orders of the court

Interlocutory Application

1. The applicant has leave to amend the statement of claim to allege contraventions of:

(a) section 45 of the Fair Work Act 2009 (Cth) and clause 27 of the Miscellaneous Award; and

(b) section 14 of the Anti-Discrimination Act 1991 (Qld),

in substantially the same form as the form which is set out in Annexure CMH-2 to the affidavit of Chris Mossman affirmed on 19 December 2023 (Draft Amended Statement of Claim).

2. The applicant has leave to amend the statement of claim in the form of the Draft Amended Statement of Claim in relation to paragraphs 12A, 12B, 12C and 17A of the Draft Amended Statement of Claim.

3. By 4:00 pm AEST on 26 April 2024, the applicant file and serve the amended statement of claim.

4. By 4:00 pm AEST on 10 May 2024, the respondents file and serve an amended defence and any affidavit evidence.

5. Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the proceedings be referred to mediation by a Registrar of the Court.

6. The mediation shall be conducted by 17 May 2024. Representatives of each party with full authority to settle these proceedings are required to attend the mediation.

7. The mediator is to report the result of the mediation to the Court following the end of the mediation.

8. The costs of the applicant’s interlocutory application be reserved.

Trial

9. Orders 4 and 6 to 14 of the Orders made on 1 November 2023 be vacated.

10. Any affidavit, or part thereof, which has been filed and served in accordance with the Court’s previous Orders in this matter and which has not been the subject of a notice of the kind referred to in Order 1 of the Orders made on 1 November 2023 will, subject to any order of the Court, be admitted into evidence (subject to any objection made under the Evidence Act 1995 (Cth)) provided that the relevant witness is made available for cross-examination, if required by notice in accordance with Order 15 below.

11. Not later than 4:00pm AEST 15 business days before the hearing, the Applicant is to file and serve on the Respondents an outline of opening submissions.

12. Not later than 4.00pm AEST 10 business days before the hearing, the Respondents are to file and serve on the Applicant an outline of opening submissions.

13. Not later than 4.00pm AEST 5 business days before the hearing, the Applicant is to file and serve on the Respondents an outline of any submissions in reply.

14. Outlines of submissions are not to exceed 10 pages in length (5 pages for submissions in reply), including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

15. Not later than 4:00pm AEST 5 business days before the hearing, the parties file and serve lists of those witnesses they require to be available for cross examination.

16. Not later than 4.00pm AEST 3 business days before the hearing, the Applicant file and serve an eBook of authorities, in accordance with eBooks Practice Note, being a jointly consolidated version of all of the authorities, legislation and explanatory and other material proposed to be relied on at the hearing by all parties.

17. Not later than 4:00pm AEST 3 business days before the hearing, the Applicant file and serve a Court eBook, in accordance with eBooks Practice Note.

18. There be liberty to apply on three days’ notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application is allowed. BACKGROUND It is convenient to briefly set out the background to the substantive proceeding. The applicant, Mr O’Brien was employed by the first respondent, the Caboolture Aero Club Inc, in the role of Aerodrome Reporting Officer and Airfield Maintenance Supervisor from 8 March 2021 until 14 November 2022. The second respondent, Mr Coburn, is the President of the Management Committee of the first respondent. On 11 August 2022, the applicant took personal leave due to illness. The applicant was diagnosed with a psychological injury which he claims is a result of bullying and harassment by the second respondent. On the same day, the applicant made an application for worker's compensation pursuant to the Workers Compensation and Rehabilitation Act 2003 (Cth). The basis of the application related to complaints about workplace bullying and harassment. From October 2022 until his termination on 14 November 2022, the applicant remained absent from work. On 5 October 2022, during the time when the applicant was on leave from work, the second respondent received a report entitled ‘Cost Analysis Comparing employee and equipment costs to outsourced contractor services’ (the Report). The Report included: This report aims to analyse the current airfield operating expenses of Caboolture Aero Club Inc (the club) in its current form in comparison to outsourcing services to third-party private contractors.…Whilst it appears that moving to contracted services alone financially benefit the club, we recommend that further analysis be undertaken due to the timeframe with which this report was compiled for the October 2022 meeting. This report has not included any benefit that the club may receive from the sale of the equipment listed above or any possibility of generating an income stream from renting space in the shed. This report should be considered indicative of the outcomes and not a statement of fact. On 31 October 2022, the second respondent, on behalf of the first respondent, provided to the applicant a notice which terminated his employment taking effect on 14 November 2022 “by reason of redundancy.” The applicant alleges the first respondent took adverse action against him pursuant to section 342 of the Fair Work Act 2009 (Cth) (FWA). The applicant alleges his employment was terminated because he exercised a workplace right: (a)to take personal leave; (b)to make a claim for workers compensation; and (c)by making a complaint about bullying and harassment in the workplace. Further, the applicant pleaded that the first respondent breached s 351 of the FWA by terminating the applicant's employment due to his psychological injury and section 352 of the FWA by terminating his employment as he was temporarily absent from work. The applicant also pleaded that the first respondent failed to comply with its obligations under clause 32 of the Airline Operations – Ground Staff Award 2020 (Airline Award) which provides for consultation requirements regarding major workplace change.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I consider that the proper order with respect to the costs of this application is that they should be reserved. CONCLUSION I am satisfied that the applicant should be granted leave to amend his statement of claim to allege contraventions of clause 27 of the Miscellaneous Award, s 45 of the FW Act, and s 14 of the Anti-Discrimination Act 1991 (Qld). I note that there is no precise stipulation on the form of the amendments, other than with respect to the FWR Amendments. However, it is expected that the applicant is to take into account the comments in this judgment. Further, the matter is to be referred to a mediation before a Registrar of the Court. Costs should be reserved.

Ratio Decidendi

Legal Principle Established

Ultimately, as noted by SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 at [14], the relevant overarching principle is that amendments should be allowed where they enable the determination of the real questions in controversy between the parties. Further, in this case, the proposed amendments are neither futile (Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; 255 ALR 508; [2009] FCA 320 at [21]–[23]) nor do they result in substantial injustice to the respondents that cannot be addressed with costs (Shannon v Lee Chun (1912) 15 CLR 257 at 260 – 261). Accordingly, the proposed amendments should be allowed to permit the real questions to be agitated. CONSIDERATION: MEDIATION The applicant sought a further order for a Court-ordered mediation. Acknowledging that the parties had previously participated in a mediation by mutual consent, the applicant referred to the fact that the committee members who were alleged to have committed adverse action against the applicant have now left the committee, that the evidence upon which the parties rely has now been filed, and that significant legal costs, greater than the amount of the claim, had been since expended by the respondents. The applicant referred to Skinner v Commonwealth of Australia [2012] FCA 1194 as an example of a case in which mediation had been ordered even when one party opposed it. The applicant also referred to Hanna v Australian Securities and Investment Commission [2011] FCA 1077 wherein McKerracher J adopted the observations of Rares J in a paper titled “Alternative Dispute Resolution in the Federal Court of Australia” at [13], as follows: It has been the experience of the Court that parties' lack of consent to attend mediation is not an indication of the mediation's prospects of success. Many mediations successfully resolve disputes where the parties objected to the initial order referring proceedings in the Court to mediation. Bona fide participation once the parties are engaged in the mediation process is most important. Interestingly, the registrars' experience of the Court ordered mediations is that the parties nearly always become sincerely involved despite any initial opposition to the mediation. In general the attitude of the participants is that if parties and their representatives have to be there, they might as well use the opportunity.On occasion a party will not want to be seen as suggesting mediation lest it be interpreted as a sign of weakness. Judicial coaxing or orders for mediation can allow those parties a way of joining the process without loss of face. If a party did participate in bad faith, a skilled mediator is likely to recognise this. Where he or she considered that such an approach by a recalcitrant party could not be remedied, the mediation would be terminated. In support of this application, the applicant noted that the first respondent is a not-for-profit association which has already incurred substantial legal fees in circumstances where the matter is listed for a four-day trial on liability only and thereafter may require a hearing with respect to quantum. Indeed, the matter is listed for a five-day trial on matters of liability. Thus, it is likely that further significant costs will be incurred.