FEDERAL COURT OF AUSTRALIA
Rossetti v Aus Gold Mining Group Pty Ltd (No 2) [2019] FCA 1104
File number: NSD 71 of 2018 Judge: KATZMANN J Date of judgment: 15 July 2019 Catchwords: PRACTICE AND PROCEDURE – application for leave to amend defence — where amendment sought very late and would cause hearing dates to be vacated — where respondents had repeatedly failed to comply with court orders — where delay explained — where matter arising under the Fair Work Act 2009 (Cth), whether costs order could, and if so, should be made Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 37P(5) and (6)
Federal Court Rules2011 (Cth) rr 1.41, 16.53
Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175
Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
Rossetti v Aus Gold Mining Group Pty Limited [2018] FCA 1649
Date of hearing: 11 July 2019 Date of last submissions: 12 July 2019 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: Mr D O’Sullivan Solicitor for the Applicant: Holman Webb Lawyers Counsel for the Respondents: Mr P Moorhouse Solicitor for the Respondents: Ren Zhou Lawyers ORDERS
NSD 71 of 2018 BETWEEN: LEE ROSSETTI
Applicant
AND: AUS GOLD MINING GROUP PTY LIMITED
First Respondent
SHA ZOU
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
15 JULY 2019
THE COURT ORDERS THAT:
1.Leave be granted to the respondents to file an amended defence in the form annexed to the affidavit of Ying Zhang affirmed 5 July 2019 by 4.00 pm on 17 July 2019.
2.The hearing dates of 1 and 2 August 2019 be vacated.
3.The respondents pay the applicant’s costs of and incidental to the interlocutory application filed on 5 July 2019 and any costs wasted as a result of the amendment and as a result of the vacation of the hearing dates.
4.Costs be payable forthwith.
5.By 4.00 pm on 19 July 2019 the respondents serve an outline of the evidence they intend to adduce at the final hearing (excluding any evidence relating to the additional matters raised by the amendments to the defence).
6.By 4.00 pm on 26 July 2019 the respondents serve a draft notice of cross-claim and draft cross-claim.
7.By 4.00 pm on 9 August 2019 the applicant inform the respondent whether he consents to, or opposes the filing of the proposed cross-claim.
8.Pursuant to rule 5.21 of the Federal Court Rules 2011 (Cth), if orders 5 and/or 6 are not complied with, the defence be struck out.
9.The…
Keep reading for free
Create a free CaseChat account to read Rossetti v Aus Gold Mining Group Pty Ltd (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCA 1104
- Decision Date
CaseChat Overview and Summary
The court considered the relevant legal principles and found that the defendants had a right to amend their defence but that the court could exercise its discretion to refuse leave to amend if the amendment would cause substantial injustice to the other party. The court found that the defendants' delay in seeking leave to amend was unreasonable and that the amendment would cause substantial injustice to the plaintiff as it would require the vacation of the hearing dates. However, the court also considered the defendants' explanation for their delay and found that it was reasonable. The court further found that the defendants had repeatedly failed to comply with court orders and that a costs order was appropriate.
The court granted leave to the defendants to file an amended defence but ordered that the hearing dates be vacated. The court also ordered the defendants to pay the plaintiff's costs of and incidental to the interlocutory application and any costs wasted as a result of the amendment and the vacation of the hearing dates. The court further ordered the defendants to serve an outline of the evidence they intended to adduce at the final hearing, a draft notice of cross-claim and draft cross-claim, and for the plaintiff to indicate whether they consented to, or opposed the filing of the proposed cross-claim. If these orders were not complied with, the court ordered that the defence be struck out. The matter was listed for case management and the parties were granted liberty to apply on three days' notice.
Orders
Orders of the court
1. Leave be granted to the respondents to file an amended defence in the form annexed to the affidavit of Ying Zhang affirmed 5 July 2019 by 4.00 pm on 17 July 2019.
2. The hearing dates of 1 and 2 August 2019 be vacated.
3. The respondents pay the applicant’s costs of and incidental to the interlocutory application filed on 5 July 2019 and any costs wasted as a result of the amendment and as a result of the vacation of the hearing dates.
4. Costs be payable forthwith.
5. By 4.00 pm on 19 July 2019 the respondents serve an outline of the evidence they intend to adduce at the final hearing (excluding any evidence relating to the additional matters raised by the amendments to the defence).
6. By 4.00 pm on 26 July 2019 the respondents serve a draft notice of cross-claim and draft cross-claim.
7. By 4.00 pm on 9 August 2019 the applicant inform the respondent whether he consents to, or opposes the filing of the proposed cross-claim.
8. Pursuant to rule 5.21 of the Federal Court Rules 2011 (Cth), if orders 5 and/or 6 are not complied with, the defence be struck out.
9. The matter be listed for case management at 9.30am on 12 August 2019.
10. The parties have 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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.