Spinks v Co-Operative Bulk Handling Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

Spinks v Co-Operative Bulk Handling Ltd [2021] FCCA 260

File number(s):

PEG 463 of 2019

Judgment of:

JUDGE LUCEV

Date of judgment:

12 February 2021

Catchwords:

PRACTICE AND PROCEDURE – leave to amend Defence – factors for consideration

Legislation:

Fair Work Act 2009 (Cth), ss 50, 570(1), (2)

Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42

Federal Circuit Court Rules 2001 (Cth), rr 1.03, 7.01

Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 83 ALJR 951; 258 ALR 14;

Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420

Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245

Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98

Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431

Medich v Bentley-Smythe Pty Ltd [2010] FCA 494

Number of paragraphs:

32

Date of last submission/s:

12 February 2021

Date of hearing:

12 February 2021

Place:

Perth

Counsel for the Applicant:

L Edmonds

Counsel for the Respondent:

F A Stanton

Counsel for the Respondent:

S Paolino

ORDERS

PEG 463 of 2019

BETWEEN:

RAEMA MARGARET ANNE ROSE SPINKS

Applicant

AND:

CO-OPERATIVE BULK HANDLING LIMITED

Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to r. 7.01 of the Federal Circuit Court Rules 2001 (Cth), the Respondent is granted leave to amend its Defence filed on 14 February 2020, substantively in the form of the Minute of Proposed Substituted Defence filed with the Court on 18 December 2020 and provided to the Applicant on 9 December 2020, and as amended in a further minute provided to the Court on 12 February 2021 (“Substituted Defence”).

2.By 4.00 pm on 12 February 2021, the Respondent file and serve the Substituted Defence.

3.On or before 19 February 2021, the Applicant file and serve any reply.

4.Order 1 of the Court’s orders made on 3 November 2020 be varied such that the order for the parties to file a statement of agreed facts be vacated and the parties cause to be filed a list of documents to be tendered by consent (if any) on or before 26 February 2021.

5.The transcript of the Court’s ex tempore reasons in relation to the Respondent’s application for leave to amend the Defence be made available to the parties upon request.

6.The parties have liberty to apply.

7.No order as to costs.

REASONS FOR JUDGMENT
(Delivered ex tempore and subsequently edited)

JUDGE LUCEV

1. The following are the Court’s ex tempore reasons for judgment which the Court reserves the right to edit or amend prior to any necessary written publication.

2. On 27 November 2019, the Applicant, Ms Raema Margaret Anne…