Transport Workers' Union of Australia v Qantas Airways Limited (Order to Recall Witnesses)

The matter of Transport Workers' Union of Australia v Qantas Airways Limited (Order to Recall Witnesses) was heard in the Federal Court of Australia. The dispute concerns the enforcement of a civil remedy and the calculation of statutory compensation under section 545(1) of the Fair Work Act 2009 (Cth). Qantas, the respondent, raised a new argument regarding the appropriate counterfactual for the calculation of compensation, which it had not previously pleaded or adverted to. The Union argued that this late introduction of a new argument would deny them procedural fairness and the opportunity to adequately respond. The court had to decide whether to allow the new argument, considering the overarching purpose of civil practice and procedure provisions, which include facilitating the just resolution of disputes, the efficient use of judicial resources, and the resolution of disputes at a proportionate cost.

The court considered the overarching purpose of civil practice and procedure provisions under section 37M of the Federal Court of Australia Act 1976 (Cth). It acknowledged that while efficiency, expense, and speed are important, the hallmark of judicial power is to resolve disputes justly. The court reasoned that if a party wishes to rely on the evidence already adduced to advance a critical argument without causing unacceptable delay, expense, or real prejudice to the other party, it should be allowed to do so. The court accepted that the Union would have conducted its case differently if the new argument had been raised timely but found no specific prejudice beyond theoretical considerations. The court decided to make orders to ensure procedural fairness, requiring Qantas to recall witnesses for further cross-examination and allowing the Union to reopen its case to adduce further evidence.

In summary, the Federal Court allowed Qantas to advance its new argument regarding the appropriate counterfactual for the calculation of compensation. To ensure procedural fairness, the court made orders under section 37P(2) of the Federal Court of Australia Act 1976 (Cth) that Qantas must produce for further cross-examination any witnesses called in their case-in-chief. Additionally, the Union was granted leave to seek the production of any further documents it considers relevant and to reopen its case following any further cross-examination of respondents' witnesses. These orders aim to balance the need for a just resolution of the dispute with the overarching principles of civil procedure.