FEDERAL COURT OF AUSTRALIA
Walker v Southcott Pty Ltd [2022] FCA 864
File number: SAD 54 of 2021 Judgment of: BESANKO J Date of judgment: 27 July 2022 Catchwords: PRACTICE AND PROCEDURE — Interlocutory application by applicant for leave to file amended pleading — where in Originating application, applicant brought claims under Fair Work Act 2009 (Cth) (FW Act) in relation to his standing down and dismissal by respondent and claims for breach of contract — where respondent issued Interlocutory application seeking summary judgment in its favour — where in response, applicant seeks leave to amend on basis that amendments deal with respondent’s complaints — where respondent opposes application on basis that grant of leave would be futile in that matters raised in proposed amended pleading liable to be summarily dismissed and applicant has proffered no reasonable explanation for delay in bringing application — whether applicant has no reasonable prospects of successfully prosecuting claim that respondent has contravened s 351 of FW Act on basis that there is no causative link between physical or mental disability alleged by applicant and stand-down and dismissal — whether applicant has no reasonable prospects of successfully prosecuting claim under s 351 of FW Act on basis that in relation to stand-down, no plea of “comparator” — whether applicant has no reasonable prospects of successfully prosecuting claim under s 351 of FW Act on basis that respondent not aware of alleged physical or mental disability at time of stand-down and dismissal — whether applicant has no reasonable prospects of successfully prosecuting claim for breach of contract on basis that term(s) of employment contract respondent alleged to have breached not identified — whether applicant has no reasonable prospects of successfully prosecuting breach of contract claim on basis that insofar as term(s) relied on can be inferred, respondent cannot be said to have breached them — whether applicant has proffered reasonable explanation for delay in bringing application for leave to amend — application granted Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 351
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) rr 8.21, 8.23, 16.21, 16.53, 26.01
Cases cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1995] FCA 1368; (1995) 58 FCR 26
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ferella v Official Trustee in Bankruptcy (No 2) [2018] FCA 18
Hennessy v Barminco Limited [2022] FCA 9
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66
Division: Fair Work Division Registry: South Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 62 Date of hearing: 9 December 2021 Counsel for the Applicant: Mr R Grealy Solicitor for the Applicant: Australian Law Partners Counsel for the Respondent: Ms K Stewart Solicitor for the Respondent: Gilchrist Connell ORDERS
SAD 54 of 2021 BETWEEN: DAMIEN…
Continue reading Walker v Southcott Pty Ltd
Sign in free to access the full text
Details
- AGLC
- Walker v Southcott Pty Ltd [2022] FCA 864
- Case
- [2022] FCA 864
- Decision Date
CaseChat Overview and Summary
Walker, the applicant, brought an action against Southcott Pty Ltd, the respondent, in the Federal Circuit and Family Court of Australia. The applicant sought redress for his standing down and dismissal by the respondent under the Fair Work Act 2009, as well as for breach of contract. The respondent filed an interlocutory application seeking summary judgment in its favour, which the applicant opposed by seeking leave to amend his pleadings. The respondent argued that the grant of leave would be futile and that the applicant had provided no reasonable explanation for the delay in bringing the application for amendment.
The court was required to determine whether the applicant had reasonable prospects of successfully prosecuting his claims, and whether the delay in seeking leave to amend was justified. The court found that the applicant had no reasonable prospects of successfully prosecuting his claims under the Fair Work Act, as there was no causative link between the alleged physical or mental disability and the stand-down and dismissal, and the respondent was not aware of the disability at the time. Additionally, the applicant had not identified the terms of the employment contract that the respondent allegedly breached. However, the court was not persuaded that the delay in bringing the application for leave to amend was so significant as to warrant a refusal of leave.
The court granted leave to the applicant to amend the document attached to his originating application, in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”. The court dismissed the respondent's interlocutory application seeking summary judgment in its favour.
ORDERS:
1. The Interlocutory application filed by the respondent dated 27 August 2021 be dismissed.
2. The applicant be granted leave to amend the document attached to his Originating application in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”.
The court was required to determine whether the applicant had reasonable prospects of successfully prosecuting his claims, and whether the delay in seeking leave to amend was justified. The court found that the applicant had no reasonable prospects of successfully prosecuting his claims under the Fair Work Act, as there was no causative link between the alleged physical or mental disability and the stand-down and dismissal, and the respondent was not aware of the disability at the time. Additionally, the applicant had not identified the terms of the employment contract that the respondent allegedly breached. However, the court was not persuaded that the delay in bringing the application for leave to amend was so significant as to warrant a refusal of leave.
The court granted leave to the applicant to amend the document attached to his originating application, in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”. The court dismissed the respondent's interlocutory application seeking summary judgment in its favour.
ORDERS:
1. The Interlocutory application filed by the respondent dated 27 August 2021 be dismissed.
2. The applicant be granted leave to amend the document attached to his Originating application in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”.
Orders
Orders of the court
1. The Interlocutory application filed by the respondent dated 27 August 2021 be dismissed.
2. The applicant be granted leave to amend the document attached to his Originating application in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”.
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
The respondent submits that the applicant has not explained the delay in making the application for leave to amend and that this is fatal to his application. The applicant has not explained the reason he did not make the application shortly after the respondent indicated that it would seek summary judgment if the claim was not discontinued. The respondent did that in its letter dated 20 August 2021. Instead of responding to this letter in a balanced and sensible way by acknowledging difficulties or seeking further time to investigate the issues, the applicant’s solicitor responded in the way he did suggesting “breathtaking[] stupid[ity]” or “complicit[y] in the ongoing fraud”. As it happens, the applicant has substantially amended his claim, including abandoning substantial claims (see above at [21]). It is difficult to see how that aspect of what followed was contingent on the receipt of experts’ reports. Furthermore, there is force in the respondent’s submission that the applicant’s solicitor did not need experts’ reports for the purposes of pleadings and that it was open to him to take instructions from the applicant. It is not without significance that the applicant was able (and willing) to file an extensive Reply containing matters or assertions said to be relevant to the COVID-19 virus. Notwithstanding these matters, and not without hesitation, I do not consider the delay to be of such an order to lead to a refusal of leave to amend.Conclusion I will grant leave to the applicant to amend the document attached to his OA in terms of the document Exhibit “RG1” attached to the affidavit of Robert Grealy sworn on 3 December 2021, such document to be titled “Statement of Claim”.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.