FEDERAL COURT OF AUSTRALIA
Yang v Best International Group Pty Ltd [2019] FCA 323
File number:
VID 654 of 2018
Judge: O’CALLAGHAN J Date of judgment: 8 March 2019 Catchwords: PRACTICE AND PROCEDURE – third application for leave to amend statement of claim – application refused Legislation: Fair Work Act 2009 (Cth) Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Shea v Truenergy Services (No 6) (2014) 242 IR 159; [2014] FCAFC 167
Date of hearing: 8 February 2019 Date of last submissions: 7 February 2019 Registry: Victoria Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr G Lake Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the First Respondent: Ms S Fitzgerald Solicitor for the First Respondent: Colin Biggers & Paisley Lawyers Counsel for the Second Respondent: Mr A R M Pollock Solicitor for the Second Respondent: HFW Australia ORDERS
VID 654 of 2018 BETWEEN: BO YANG
Applicant
AND: BEST INTERNATIONAL GROUP PTY LTD ACN 102 778 414
First Respondent
FUJITSU AUSTRALIA LTD ACN 001 011 427
Second Respondent
JUDGE:
O’CALLAGHAN J
DATE OF ORDER:
8 MARCH 2019
THE COURT ORDERS THAT:
1.The application for leave to amend the further amended statement of claim be dismissed.
2.Parties file submissions as to costs within 7 days of the date of these reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
The applicant seeks for the third time to amend his statement of claim to plead a case against the second respondent (Fujitsu).
In my view, he should not be permitted to do so, for the reasons set out below.
The first respondent (Best), which is a provider of labour hire services to companies and businesses which contract with it to receive such services, employed the applicant from 16 June 2013 on a casual basis to perform IT technician duties for Fujitsu.
The applicant commenced proceeding in the Fair Work Commission against Best, alleging that he was dismissed in contravention of part 3-1 of the Fair Work Act 2009 (Cth). Best denied not only that there was any contravention, but that the applicant had been dismissed at all. The proceeding failed to resolve the dispute between the applicant and Best.
Fujitsu was not a party to, nor was it made aware of, the Fair Work Commission proceeding.
It is common ground that the fact of the involvement of Fujitsu was the subject of evidence in the Fair Work Commission proceeding.
Because Fujitsu was not a party to the proceeding, obviously enough, it was not named in the certificate that was issued by the Commission under s 368(3) of the Fair Work Act consequent upon the failure to resolve the dispute.
Counsel for Fujitsu contends that this court, therefore, has no jurisdiction to hear any claim by the applicant against it. It is,…
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- Case
- [2019] FCA 323
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the third application for leave to amend the statement of claim should be granted. The legal issues that the court had to decide included whether the proposed amendments were an attempt to introduce new causes of action, whether the amendments would unduly delay or prejudice the defendant, and whether there were any other factors that should be taken into account in determining whether leave should be granted. The court considered the previous amendments made to the statement of claim, the nature of the proposed amendments, and the reasons for the applicant's desire to make further amendments.
In determining the application, the court found that the proposed amendments were an attempt to introduce new causes of action and that there were other factors that should be taken into account in determining whether leave should be granted. The court found that the applicant had already had two opportunities to amend the statement of claim and that the proposed amendments were an attempt to introduce new causes of action that were not previously disclosed. The court also found that the proposed amendments would unduly delay and prejudice the defendant, and that there were other factors, such as the complexity of the case and the need for finality, that should be taken into account in determining whether leave should be granted. The court held that the application for leave to amend the statement of claim should be dismissed.
The court ordered that the application for leave to amend the further amended statement of claim be dismissed and that the parties file submissions as to costs within 7 days of the date of these reasons. The court also noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application for leave to amend the further amended statement of claim be dismissed.
2. Parties file submissions as to costs within 7 days of the date of these reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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