Rochecouste v Tasman Rope Access Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Rochecouste v Tasman Rope Access Pty Ltd [2021] FCA 908

File numbers: WAD 235 of 2020
WAD 236 of 2020
Judgment of: COLVIN J
Date of judgment: 6 August 2021
Catchwords: PRACTICE AND PROCEDURE - application by respondents for leave to amend defences and file further evidence - where respondents seek to completely recast their case - where proposed amendments included changes to withdraw admissions - where leave required to withdraw admissions in present defences - where deficiencies in present defences claimed by respondents to justify amendments not articulated - whether prejudice to applicants if leave granted - whether in interests of justice to allow application - application dismissed
Legislation:

Fair Work Act 2009 (Cth) s 524

Federal Court Rules 2011(Cth) r 16.07
Cases cited:

Carna Group Pty Ltd v The Griffin Coal Mining Company (No 5) [2020] FCA 970

Fitness Systems United Pty Ltd v Goldberg [2020] FCA 638

Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309

Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd (No 3) [2020] FCA 222

Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486
Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 42
Date of hearing: 27 July 2021
Counsel for the Applicants: Mr TJ Dixon with Mr H Pararajasingham
Solicitor for the Applicants: Nicholas Legal
Counsel for the Respondents: Mr J Raftos
Solicitor for the Respondents: HLS Legal

ORDERS

WAD 235 of 2020
BETWEEN:

MARC ROCHECOUSTE

Applicant
AND:

TASMAN ROPE ACCESS PTY LTD (ACN 604 876 324)

First Respondent

BRENDAN HALSTEAD

Second Respondent
WAD 236 of 2020
BETWEEN:

MICHEAL ATWELL

Applicant
AND:

TASMAN ROPE ACCESS PTY LTD (ACN 604 876 324)

First Respondent

BRENDAN HALSTEAD

Second Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The respondents' interlocutory application dated 16 July 2021 be dismissed.

2.There be liberty to the applicants to apply for any order as to costs consequent upon the dismissal of the interlocutory application.

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


REASONS FOR JUDGMENT

COLVIN J:

  1. In October 2020, each of Mr Marc Rochecouste and Mr Micheal Atwell commenced proceedings in this Court against Tasman Rope Access Pty Ltd (TRA) and Mr Brendan Halstead, formerly the operations manager and now general manager for TRA.  Each of the applicants claimed to have been employees of TRA and to have standing under the Fair Work Act 2009 (Cth) to bring the claims to relief which included damages and pecuniary penalties. Orders were made for the two proceedings to be heard together.

  2. Detailed defences and cross‑claims were then filed by the respondents in early December 2020.  By orders made on 4 March 2021, the parties were directed to file statements of material facts, bundles of documents and affidavits to be relied upon at the hearing.  Both applications were listed for…

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Details
Case
[2021] FCA 908
Decision Date

CaseChat Overview and Summary

In the case of Rochecouste v Tasman Rope Access Pty Ltd, the court was asked to consider an application by the respondents for leave to amend their defences and to adduce further evidence. The respondents sought to completely recast their case, including withdrawing several admissions made in their existing defences, and presenting additional evidence to support their new case. The court had to decide whether it was in the interests of justice to grant the application, considering the potential for delay, prejudice to the applicants, and the overall fairness of the proceedings.

The legal issues before the court included whether the respondents had provided an adequate explanation for the proposed amendments, particularly the withdrawal of admissions, and whether the additional evidence was necessary and relevant to the case. The court also considered the extent of prejudice to the applicants if the application was granted, including the additional costs and delays that would result.

The court reasoned that the respondents had not provided a sufficient explanation for the proposed amendments, particularly the withdrawal of admissions, and had failed to articulate the deficiencies in their existing defences that justified the changes. The court found that the proposed amendments sought to run a different case and would result in significant prejudice to the applicants, including considerable delay and additional costs. The court concluded that it was not in the interests of justice to allow the application and dismissed it. The court also reserved liberty for the applicants to apply for any order as to costs.

In conclusion, the court dismissed the respondents' application for leave to amend their defences and to adduce further evidence. The court found that the proposed amendments and additional evidence were not adequately justified and would result in significant prejudice to the applicants. The court emphasised that any future application to amend and adduce evidence must be brought promptly, address the deficiencies in the present application, and consider the prejudice to the applicants from further delay.

Orders

Orders of the court

1. The respondents' interlocutory application dated 16 July 2021 be dismissed.

2. There be liberty to the applicants to apply for any order as to costs consequent upon the dismissal of the interlocutory application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

When pressed to explain the significance of the proposed additional evidence, counsel identified, in general terms, three issues to which the evidence was intended to relate. However, that general description was advanced on the basis that it was not exhaustive, but did cover the 'main evidence'. No explanation was able to be provided as to why the proposed additional evidence could not be identified with any particularity.Reasons for further evidence As the only explanation for the application for time to put on further affidavit evidence was the proposed application to amend the defences, it follows that if leave is not granted to amend then the basis for the application for further affidavits falls away.Prejudice As to prejudice it was said that final hearing dates had not been allocated and therefore there was no prejudice to the applicants. However, that submission fails to address the fact that hearing dates had been allocated and were only vacated by reason that the respondents had delayed in filing affidavits and had foreshadowed the present application. The fact that the applicants accepted that the Court was likely to extend some indulgence to the respondents in those circumstances by not opposing the vacation of the allocated hearing dates is not a matter that can be called in aid by the respondents. But for the respondents' conduct, the final hearing of the matter would have been completed by now. In those circumstances, any steps by the respondents that occasion the revising of steps already taken will be prejudicial to the applicants and will be productive of delay, the responsibility for which should be laid squarely at the feet of the respondents. Further, now that the foreshadowed application to amend the defences and provide further affidavits is brought what is apparent is that it seeks a more radical outcome than was suggested at the time the hearing dates were vacated. The respondents now seek to completely recast their case and abandon a considerable number of admissions that were made formally by way of the existing defences as settled by counsel. They seek to adduce evidence to support that new case. The respondents do not seek to refute the submissions by the applicants as to the extent to which the new course will require further costs to be incurred by the applicants and that there will be delay while substantial further forensic preparation is undertaken to meet the proposed new case of the respondents. It is not possible to know the full ambit of what would be involved because the respondents have not explained the differences and have not provided any real information about the extent of the proposed additional affidavits. I accept that there will be real prejudice to the applicants in the form of a considerable delay in the hearing of the proceedings if leave was to be given. Further, there will be additional costs and costs thrown away by reason of forensic steps having to be undertaken afresh by the applicants. The respondents indicated that they would be willing to submit to an order for costs even though the proceedings were being conducted within a no cost jurisdiction. However, even if an appropriate costs order was to be made there would be burdens in identifying the extent to which costs were occasioned by the amendments and, more importantly, any such order could not compensate for the significant delay that was likely to result in a matter that otherwise would have been heard.Delay

Decision

Reasons for decision

It may be accepted that on an application for leave to amend to expose the real issues in the proceedings that is made at a time where the other party has sufficient time to respond will generally be allowed in the interests of justice. However, for reasons that have been given, there are many aspects of the present application that mean that it would not be in the interests of justice to accede to the application.Conclusion and costs For the reasons given, the application should be refused. In refusing the application I do not foreclose the possibility of a further application to amend and adduce further evidence brought without delay that is confined to what is reasonable and necessary as a matter of fairness. It is too late for the respondents to be starting again with an entirely new case. There must be identification of the amendments that are sought and why they should be allowed despite the fact that the case has proceeded to this point on the basis of the current defences. To the extent that admissions are proposed to be withdrawn there must be an adequate explanation. The concession made by the respondents in relation to costs presupposed that the interlocutory application was successful. There was no consideration of the appropriate course as to costs if the application was refused. Without expressing any view, I note that there are circumstances in which orders for costs may be made in respect of interlocutory applications where they have been brought about by the unreasonable acts or omissions of one party which take the costs outside the boundaries of those which might usually be expected to be incurred in the present no costs jurisdiction: see, for example, Fitness Systems United Pty Ltd v Goldberg [2020] FCA 638 at [18] (Wigney J). Therefore, I will reserve liberty to the applicants to apply as to any costs order.

Ratio Decidendi

Legal Principle Established

It would be open to the respondents to bring a further application. As will be apparent from these reasons, any such application would need to be brought promptly and would need to address the deficiencies with the present application. It would need to have an eye to the prejudice to the applicants that would result from further delay of the hearing (which would have occurred by this point in time but for the indulgence already extended to the respondents).ConsiderationWithdrawal of admissions Significantly, counsel for the respondents accepted that the application to amend the defence and to adduce further evidence was made in order to now run a case which is inconsistent in substantial respects with the case that is presently pleaded. No issue was taken by the respondents with the list of admissions advanced by the applicants as admissions that would be withdrawn if the amendments were allowed. Rather, it was submitted that one of the problems that the amendments sought to rectify was the fact that there was no pleading in response to some allegations which then operated as a deemed admission under the Federal Court Rules. However, that submission was unsupported by any explanation for what had occurred and provided no explanation for the many other admissions that had been made expressly that were to be withdrawn if leave was given, including admissions as to fundamental matters such as whether the applicants were employees of TRA and whether there had been contraventions of particular provisions of the Fair Work Act. The only explanation advanced for the withdrawal of the admissions was the change in legal representation for the respondents. It was said that the reason for the withdrawal was a matter that could be explored in cross-examination in due course. This is not an approach that is supported by the authorities. It is certainly not a reason why leave should be given to withdraw an admission without any explanation. It follows that there is no adequate explanation that would support the withdrawal of admissions made by the defences.Other proposed amendments It is not possible from the way in which the submissions for the respondents were advanced to determine the significance for the overall conduct of the case of the changes that are sought to be made or the additional evidence that is proposed. As has been noted the amendments were not marked up on the proposed new defences. No explanation or overview was provided as to the nature of the proposed amendments. Their nature and importance cannot be evaluated. All that can be said is that the respondents propose to chart a substantial change in course and therefore the submission for the applicants that what is sought to be done is to run a different case should be accepted. As to the additional evidence, counsel for the respondents referred to Annexure MDB 3 as identifying topics that were not addressed by the evidence that had been filed. The submission was put in terms that there were aspects of the existing defences where there was unlikely to be evidence to support the defence. No specific examples were provided. The submission suggested that the existing terms of the defences were not consistent with the evidence available to the respondents.