Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2010] FMCA 1009

Mr Kenzie QC rightly reminds the Court that in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court has made it clear that amendments of this type are not to be lightly granted and that the previous position as set out in Queensland v J L Holdings [1997] HCA 1; (1997) 189 CLR 146 is no longer good law. Since the Aon decision, there have been other decisions of the Federal Court in which these points have been reinforced. 2. This is a case in which the Court is asked to make declarations that an employer has breached civil penalty provisions of the FWA and, if the Court made those declarations, then penalties will be sought. Civil penalties of this type are not offences but they have a quasi-criminal character and they are treated very seriously by this Court and others which are required to enforce the Act. I am of the view that where particular breaches are pleaded, then a defendant is entitled to assume it knows the matters that it has to respond to and, even if it becomes evident as a case progresses that the applicant is stepping outside the pleaded cause, there should be no obligation on the defendant to respond unless some amendment or request for an amendment has been made. 3. In the instant case, Mr Kenzie QC, who appears for the respondent, finished his case by tendering a request for further and better particulars and responses (Exhibit C) and I think he made it clear, certainly clear enough to me, that he was proceeding on the basis that these were the matters that had been pleaded against his client and the matters that he intended to respond to. If the applicant had any doubts about it at that stage, then was the time to seek clarification and possibly amendment, although one cannot say what the result of such an application would have been. To my mind, it is now too late to alter the basis of the claim to add an additional complaint as is sought, even if it was hinted at during the course of the proceedings. The difficulty is that the respondent would, at the very least, have to pore through the transcript to work out whether or not the matter had been properly dealt with in questioning and cross-examination. In respect of a case that has already taken some days, I do not think a party should be required to do that. It is for those reasons I decline to grant the amendment.