Rochecouste v Tasman Rope Access Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Rochecouste v Tasman Rope Access Pty Ltd (No 2) [2021] FCA 1161

File numbers: WAD 235 of 2020
WAD 236 of 2020
Judgment of: COLVIN J
Date of judgment: 28 September 2021
Catchwords: PRACTICE AND PROCEDURE - application for leave to amend defences - where previous application to amend dismissed - whether late application - where amendments seek to withdraw admissions - whether adequate explanation for withdrawal of admissions - whether in interests of justice to allow application - application allowed in part  
Legislation: Fair Work Act 2009 (Cth) ss 557A, 570
Cases cited:

Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526

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

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: 87
Date of hearing: 22 September 2021
Counsel for the Applicants: Mr H Pararajasingham
Solicitor for the Applicants: Nicholas Legal
Counsel for the Respondents: Mr AJ Power
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:

28 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The amended interlocutory application for leave to amend the defences be allowed in part.

2.On or before 4 October 2021, the respondents do file and serve minutes of proposed amended defence that reflect the reasons on the amended interlocutory application.

3.On or before 11 October 2021, the applicants do file and serve any submissions of no more than five pages stating any respect in which the proposed amendments are objected to on the basis that they go beyond the reasons.

4.If such submissions are filed by the applicants then on or before 18 October 2021, the respondents do file any submission of no more than five pages in response.

5.Any question concerning the minutes of proposed amended defence shall be determined on the papers.

6.If no submissions are filed by the applicants in accordance with these orders then the minutes of defence shall stand as the amended defences in these proceedings.

7.At the final hearing, the statements of material facts, response and reply shall be disregarded.

8.The respondents shall pay the applicants' costs thrown away by reason of the amendments to the defences made in accordance with these orders in any event.

9.The respondents shall pay the applicants' costs of and incidental to the amended interlocutory application such costs to be assessed on a lump sum basis by a registrar if not agreed and to be paid forthwith.

10.There be liberty to the applicants to apply for any further order as to costs of and incidental to the amended interlocutory application.

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Details
Case
[2021] FCA 1161
Decision Date

CaseChat Overview and Summary

The case of Rochecouste v Tasman Rope Access Pty Ltd (No 2) dealt with an application for leave to amend defences in an ongoing legal dispute between the parties. The nature of the dispute was not explicitly stated in the text, but it involved a request for amendments to the defences, with the court assessing whether certain proposed changes should be allowed. The case was heard in the Federal Circuit Court of Australia.

The court was tasked with determining the appropriateness of allowing the defendants to amend their defences in light of a previous application that was dismissed. Specific legal issues included whether the amendments were made in a timely manner, whether there was an adequate explanation for withdrawing certain admissions, and whether allowing the amendments would be in the interests of justice. The court also had to consider the implications of the proposed changes on the proceedings and the fairness of the process to both parties.

The court's reasoning involved a detailed examination of each proposed amendment. Some amendments were allowed, such as those adding references to specific paragraphs in the defence, denying the contractual effect of a letter of offer, and introducing new claims. However, other amendments, including those relating to certain admissions and typographical errors, were not permitted. The court also noted deficiencies in the preparation of the statements of material facts and directed that they be disregarded in the final hearing. The court ordered the respondents to bear the costs associated with the amendments, including those thrown away and the additional costs of dealing with new claims. The court concluded that the respondents' failure to properly investigate and formulate their application justified the costs order.

The final orders included allowing the application for leave to amend in part, requiring the respondents to file amended defences within a specified timeframe, and allowing the applicants to object to any aspects of the amendments. The court also ordered the respondents to pay the applicants' costs thrown away and those of the amended interlocutory application. Additionally, the court directed that the statements of material facts be disregarded in the final hearing and scheduled a case management hearing and provisional dates for the final hearing.

Orders

Orders of the court

1. The amended interlocutory application for leave to amend the defences be allowed in part.

2. On or before 4 October 2021, the respondents do file and serve minutes of proposed amended defence that reflect the reasons on the amended interlocutory application.

3. On or before 11 October 2021, the applicants do file and serve any submissions of no more than five pages stating any respect in which the proposed amendments are objected to on the basis that they go beyond the reasons.

4. If such submissions are filed by the applicants then on or before 18 October 2021, the respondents do file any submission of no more than five pages in response.

5. Any question concerning the minutes of proposed amended defence shall be determined on the papers.

6. If no submissions are filed by the applicants in accordance with these orders then the minutes of defence shall stand as the amended defences in these proceedings.

7. At the final hearing, the statements of material facts, response and reply shall be disregarded.

8. The respondents shall pay the applicants' costs thrown away by reason of the amendments to the defences made in accordance with these orders in any event.

9. The respondents shall pay the applicants' costs of and incidental to the amended interlocutory application such costs to be assessed on a lump sum basis by a registrar if not agreed and to be paid forthwith.

10. There be liberty to the applicants to apply for any further order as to costs of and incidental to the amended interlocutory application.

11. On or before 5 October 2021, the parties do each file a minute of proposed orders for the programming for final hearing of all issues other than the quantum of any penalty and factual matters relevant only to quantum of penalty.

12. The matter be listed for case management hearing at 9.15 am on 6 October 2021.

13. The matter be provisionally listed for hearing on 28, 29, 30 and 31 March 2022.

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

Background

Background to the litigation

As I have indicated, in the course of the hearing of the application I determined that certain of the proposed amendments should be allowed and that other proposed amendments should not be allowed. Having regard to those determinations and these reasons, the application to amend the defences will be allowed to the following extent:(1)Amendments to add references in the defence to those paragraphs where the matters pleaded in paragraphs 2(b) and (c) of the defence are relied upon as part of the answer to a particular plea in the claim.(2)Amendments to deny that the letter of offer had contractual effect.(3)Amendments to introduce a new claim by way of defence to the effect that there was leave taken to which the applicant was not entitled.(4)Amendments to introduce proposed new paragraphs 20(c) and (d) to the defence of Mr Rochecouste.(5)Amendments to withdraw the admissions of contravention by taking unlawful adverse action (as described in these reasons).(6)Amendments relating to the period of notice to be given of work (to take the form of introducing the proposed new paragraph 10(c)).(7)Amendments to deny contravention of s 557A of the Fair Work Act.(8)Amendments to schedule 2 to introduce Table 1 (but not Table 2).(9)Amendments to pleadings where there is no express plea in response because the pleading is in the form 'do not admit' or in the form of an objection to the plea in the claim without a substantive answer.(10)Amendments to correct typographical errors (as identified in the written submissions for the respondents).The statements of material facts The course of the hearing of the present application has exposed the unsatisfactory terms in which the applicants prepared the statement of material facts. They are not in the form contemplated by the direction. Rather than assist, they confuse by taking the form of an alternate pleading. In order to ensure no further confusion in the conduct of the proceedings I will formally direct that the statements of material facts be disregarded in the conduct of the final hearing. Counsel for the applicants proposed that conferral between counsel for the purpose of preparing an agreed list of issues would be more productive way of proceeding. I encourage the parties to explore that possibility.Costs occasioned by the amendments The application was brought on the basis that the respondents accepted that they must bear the costs occasioned by the amendments. As I have indicated, the submission was made on the basis that any such order would cover both costs thrown away and additional costs of dealing with new claims. It follows that there should be the usual order that the costs thrown away by reason of the amendments be borne by the respondents. However, as I have noted the precise extent to which liability for further costs was accepted was unclear. In material respects (relating to hours offered and not taken and the matters pleaded in schedule 2) the proposed amendments have not been allowed. In my assessment, it is those aspects that might have had the greatest propensity to cause significant delay and additional cost.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, I will also order that the respondents do pay the applicants' costs of the application to amend, such costs to be assessed by a registrar if not agreed and to be paid forthwith. I take those costs to be included in what the respondents proposed. Even if they were not so included, I am satisfied, on the evidence, that the respondents' unreasonable omission in ensuring that matters were properly investigated and instructions provided at the time of preparation of the original defences and in failing to properly formulate their application for amendment resulting in two applications to amend and a number of iterations of the proposed amendments are matters that justify such orders under s 570(2)(b) of the Fair Work Act. Otherwise, I will reserve liberty to the applicants to apply in relation to any further costs order.Conclusion The application for leave to amend has been successful in part. There should be orders requiring the respondents within seven days to file minutes of amended defences. Within seven days thereafter the applicants should indicate any respect in which they object to the terms of the amendments by filing short written submissions of no more than five pages identifying any respect in which the amendments are alleged to go beyond these reasons. If such submissions are filed the respondents should have seven days to file any submissions in response also limited to five pages. Any such issues will be determined on the papers. There will be orders for costs as indicated and an order to deal with the statements of material facts.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.