Rossetti v Aus Gold Mining Group Pty Ltd (No 2)

The matter before the court was an application by the plaintiff, Rossetti, for leave to amend the defence filed by the defendants, Aus Gold Mining Group Pty Ltd. The defendants sought to amend their defence very late in the proceedings and in doing so, would cause the hearing dates to be vacated. The defendants had previously failed to comply with court orders and had provided an explanation for their delay. The matter arose under the Fair Work Act 2009 (Cth) and the court was required to consider whether it could, and if so, should make a costs order.

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.