Spinks v Co-Operative Bulk Handling Ltd
[2021] FCCA 260
•12 February 2021
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
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.
On 27 November 2019, the Applicant, Ms Raema Margaret Anne Rose Spinks (“Ms Spinks”) filed an application in this Court alleging that the Respondent, Co-Operative Bulk Handling Limited (“CBH”), breached s. 50 of the Fair Work Act 2009 (Cth) (“FW Act”) by contravening an enterprise agreement in terminating her employment.
Ms Spinks was at all material times a casual or seasonal harvest employee of CBH, employed as a “casual plant operator” as defined by the CBH Geraldton Plant Operators Union Collective Agreement 2015 (“CBH Collective Agreement”). There is no dispute that the CBH Collective Agreement is an “enterprise agreement” for the purposes of s. 50 of the FW Act and that it applied to Ms Spinks employment at all relevant times.
CBH is the operator of a business responsible for the storage, handling and processing of grain within Western Australia and is a party to the CBH Collective Agreement.
Ms Spinks first commenced employment with CBH in mid-October 1995 for the 1995-1996 harvest season (the harvest season is normally between October and January). Ms Spinks worked each harvest season until 2015 when she took a 12 month break before returning for three more consecutive harvests. Relevantly, Ms Spinks commenced work on 29 October 2018 as a casual harvest employee at the Geraldton Grain Terminal for the 2018-2019 harvest.
On 21 November 2018 Ms Spinks attended work and underwent a routine drug and alcohol breath analysis. Ms Spinks tested positive for the presence of alcohol with a final reading of 0.053.
On 26 November 2018 CBH terminated Ms Spinks’ employment for an alleged breach of CBH Life Saving Rules #3 (“Rule 3”), which provides as follows:
Do not undertake work activities on an operational site with a Blood Alcohol Concentration above zero.
Clause 30.8 of the CBH Collective Agreement provides as follows:
If an employee breaches CBH Life Saving Rule #3 and has no breaches of this rule in the previous 12 months, and there are no other disciplinary factors in consideration; they will receive a final warning for the breach. The employee will be required to participate in counselling and/or an Employer nominated rehabilitation program and submit to additional random testing as required by the Employer for 12 months immediately following the breach. Failure to do so, or further breaches of Life Saving Rule #3, may result in the termination of employment.
Clause 30.9 of the CBH Collective Agreement provides as follows:
However, in the event the first breach of Life Saving Rule #3 results in an incident or accident where the outcome is either:
•Injury, impairment or death of any person; or
•Serious damage to the Employer's property or equipment; or
•The investigation finds the employee deliberately disregarded their own safety or that of others,
then termination of employment may occur for a first breach of this rule.
Ultimately a, if not the, central issue for consideration is therefore whether or not the termination of Ms Spinks’ employment was a breach of the CBH Collective Agreement, in particular cl. 30.8 thereof, and thereby a breach of s. 50 of the FW Act.
The proceedings have relevantly thus far taken the following course procedurally:
a)commenced on 27 November 2019 by the filing by Ms Spinks of the Originating Application and Statement of Claim;
b)CBH filed a Defence on 14 February 2020;
c)on 28 August 2020 a mediation, which did not resolve the matter, was conducted before a Registrar of the Court;
d)on 5 October 2020 a consent order was made adjourning a directions hearing listed for 6 October 2020 to 3 November 2020;
e)on 3 November 2020 the Court (differently constituted) made orders to facilitate the filing and service of a Statement of Agreed Facts and an Agreed List of Documents, affidavits and objections to the admissibility of affidavits, submissions, and for the filing of a Court Book, and the listing of the hearing of the matter on the issue of liability on 20 May 2021 (“3 November 2020 Orders”);
f)the dates for compliance with the first two of the 3 November 2020 Orders were extended by consent orders made on 4 December 2020 (“4 December 2020 Orders”);
g)the Court observes that the parties have now each filed affidavits; and
h)on 18 December 2020 CBH’s solicitors emailed the Chambers of Judge Kendall of this Court advising that the parties had:
i.conferred concerning a Proposed Substituted Defence and an associated Minute of Proposed Orders sought to be filed by CBH, but had not been able to reach a consent position in relation thereto; and
ii.not filed a Statement of Agreed Facts in accordance with the 3 November and 4 December 2020 Orders,
and sought a directions hearing to deal with those matters. The matter was listed for 1 February 2021 for directions, but due to a Covid-19 lockdown in Western Australia was adjourned to today.
Any procedural application must be considered in the relevant statutory, factual and case management context. The role and mode of operation of the Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r. 1.03 of the FCC Rules, provide for the Court to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures; and
(e)that avoids undue delay, expense and technicality,
as to which see Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 at [20] per Lucev FM (“Nerd Group”) (cited by CBH).
The Court must also take into account the following principles when determining whether or not to grant leave to allow an amendment to pleadings:
(a) that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
(b) modern principles of case management;
(c) the avoidance of undue delay; and
(d) the wastage of public resources,
as to which see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 83 ALJR 951; 258 ALR 14, (“Aon Risk Services”) at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, and Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at [2] per McKerracher J; Nerd Group at [20] per Lucev FM.
In Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 (“Cai”) at [27] per Judge Manousaridis (citing Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] per Stone J) the Court stated that when r. 7.01 of the FCC Rules is applied to applications to amend pleadings, the general principle is that:
… leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the court to punish a party for delay in seeking an amendment.
The paramount consideration remains whether it is in the interests of justice to grant the amendment sought: Aon Risk Services at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Save for a proposed amendment to [4] of the Defence which is not material to the issue to be determined today, the substantive proposed amendments to the Defence are at [9] and [18](a) and (b). In the Proposed Substituted Defence at [9], CBH plead at (a)-(m) thereof a more detailed and particularised account of the events of 21 November 2018 in relation to Ms Spinks driving to and attendance at work, her testing positive for alcohol, the course of the investigation that ensued and what was said or done by the persons concerned, including Ms Spinks, and the nature and effect of Ms Spinks’ conduct as alleged by CBH, and at [18] adds a plea that Ms Spinks’ conduct in driving to work was unlawful (given her blood alcohol concentration), and at 18(b) pleads reliance now on cl. 30.8 rather than cl. 30.9 of the CBH Collective Agreement.
The nature of the amendments is such that they do seek to clarify and add particulars appropriate, in the Court’s view, to a proper setting out and disclosure of CBH’s proposed case.
There is nothing to indicate, nor is it suggested, that the proposed amendments are not made in good faith. In the Court’s view, the proposed amendments are properly made insofar as they focus attention onto alleged relevant facts and issues, and properly set out and disclose the case that CBH will seek to put at hearing.
The proceedings have been on foot since November 2019. Prior to CBH raising the issue of seeking leave to file a Substituted Defence on 18 December 2020, only a Statement of Claim and a Defence had been filed in the almost 13 months the proceedings had then been on foot. No Statement of Agreed Facts or List of Agreed Documents has been filed in accordance with the 3 November and 4 December 2020 Orders. Both parties have now filed affidavits, and it is fair to observe that Ms Spink’s affidavit was filed subsequent to the raising of the issue of seeking leave to file the Proposed Substituted Defence.
The Court notes that the final hearing of the matter is still more than three months away, and having regard to both the time at which the issue of seeking leave to file the Proposed Substituted Defence was raised and the very limited nature of the issues requiring determination at final hearing, it cannot be said that the leave sought has been sought so late in the proceedings as to constitute a manifest prejudice to Ms Spinks’ case: contrast Aon Risk Services where the High Court held that leave ought not to have been granted to amend a Defence raising entirely new issues where leave had been sought on the third day of a four week trial where the matter had been on foot for two years.
In the Court’s view, the stage at which leave has been sought in these proceedings is not, of itself, sufficient to preclude leave to file the Proposed Substituted Defence being granted, particularly having regard to the principle that leave ought to be granted, subject to issues of prejudice and any possible redress of prejudice: Cai at [27] per Judge Manousaridis.
The primary prejudice asserted by Ms Spinks to arise from the proposed amendments in the Proposed Substituted Defence arise from subparagraphs 18(a) and (b) thereof. The proposed subparagraph (a) adds words in relation to Ms Spinks’ conduct and the alleged unlawfulness of that conduct, while the proposed subparagraph (b) changes the clause of the CBH Collective Agreement upon which reliance is placed, being cl. 30.9, to cl. 30.8. Ms Spinks says that she is prejudiced because at what is said to be a late stage, but which having regard for what the Court has already said is not, in the Court’s view, an overly late stage, the reason for termination has changed, a change made manifest by the words added to paragraph 18(a) and to the change in the clause of the CBH Collective Agreement said to be relied upon as the basis for termination.
The Court is not persuaded that there is such prejudice or at least any significant prejudice by reason of the proposed amendments to paragraph 18(a) and (b) of the Proposed Substituted Defence. The Court bears in mind the provisions of ss. 3 and 42 of the FCCA Act and r. 1.03 of the FCC Rules that it has already referred to and the fact that this is a one day case within a limited set of facts and essentially requiring a single issue for determination.
The proposed amendment to the Proposed Substituted Defence is said by Ms Spinks to constitute a change in the basis of termination as previously pleaded, but the Court is not persuaded that this is so. Although perhaps inelegantly expressed, it is arguable that the reference to “other disciplinary factors” put cl. 30.8 of the CBH Collective Agreement in issue as the basis for Ms Spinks’ termination from the outset where it appeared in paragraph 18(a) of the Defence as originally filed.
In any event, the ultimate reason for termination is a matter to be determined factually and can, and no doubt will, be the subject of examination and cross-examination at hearing. CBH putting the issue in contention in the way that it now proposes affords Ms Spinks the opportunity to negate it, and in that regard and in the context of a single issue case listed for one day in which there is not otherwise significant disagreement about many of the essential facts, the amendment to the Proposed Substituted Defence puts Ms Spinks on notice with adequate time prior to hearing, and adequate opportunity to deal with the Proposed Substituted Defence and issues arising therefrom by way of the filing of a reply and reply affidavits, pursuant to the 3 November 2020 Orders or any orders now to be made by the Court.
Ultimately, the matters raised by Ms Spinks today are matters which can be addressed by the further pleading and procedural processes to be undertaken, or at hearing.
The Court has considered the question of costs in the context of prejudice. On the face of it this is a no costs matter: FW Act, s. 570(1). The Court observes that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints: FW Act, s. 570(2), with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J. In the Court’s view the additional costs of these interlocutory proceedings are not such as to meet the threshold necessary for the awarding of costs under s. 570(2) of the FW Act, and there can be no real, or at least substantial prejudice, in incurring costs which the FW Act does not ordinarily contemplate being ordered by the Court, and which are likely, in context, to be minimal in any event. It follows that there will be no order as to costs.
In all the above circumstances, the Court considers that any prejudice which might arise if leave were granted to file the Proposed Substituted Defence can be redressed by Ms Spinks filing any affidavit in reply, and a reply, as envisaged so as to maintain the present date for final hearing of 20 May 2021. In relation to CBH’s application to file a Proposed Substituted Defence, the Court has concluded that it is in the interests of justice for leave to be granted to CBH pursuant to rule 7.01 of the FCC Rules to file a Proposed Substituted Defence.
The parties acknowledge that they have not been able to agree upon a Statement of Agreed Facts or an Agreed List of Documents and, therefore, those documents have not been filed and the dates prescribed for such filing in the 3 November and 4 December 2020 Orders have passed.
The failure to agree on a Statement of Agreed Facts is perhaps surprising given the matters which, on the pleadings as they stand, and as they will stand with the grant of leave to file the Proposed Substituted Defence, are agreed or not substantially in dispute, and which consequently mean that there is a limited issue for determination by the Court. Put differently, what is and is not in issue, and what is and is not agreed, can be readily determined from the pleadings and proposed pleadings. Having regard to the measure of agreement and distillation of what is in issue evident from the pleadings and proposed pleadings the Court is of the view that the requirement to file a Statement of Agreed Facts is no longer necessary.
From submissions made by Counsel it would appear that there is still some utility in an Agreed List of Documents, and the Court will not disturb the existing orders for provision of documents.
For the above reasons the Court has concluded that orders will be made as follows:
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.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 February 2021
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