7.2 Leave to amend pleading
133 Civil Air's application seeks to align its pleading with the evidence that it led. That evidence was to the effect that, at a meeting that took place between representatives of the parties on 17 August 2017, Civil Air was advised that Airservices would not consider itself obliged to pay for relocation expenses in the case of employees who, for reasons of career development, transferred to Brisbane or Melbourne. That representation, it was said, was reflective of Airservices' decision to change its policy with respect to reimbursement on transfer from the Old Policy to the New Policy. By its pleading, however, Civil Air did not allege that the New Policy was limited in its application to Brisbane and Melbourne.
134 In Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (Tracey, Reeves and Bromwich JJ) ("Hall"), this court observed (at 368 [49]-[50]):
[49] One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286-287 in the joint judgment of Mason CJ and Gaudron J as follows:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) [1916] HCA 81; 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Brown v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) [1916] HCA 81; 22 CLR 490 at 517-518].
[50] In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner's ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel's opening or closing submissions and then seek to justify that course by pointing to the respondents' failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.
135 Leave to amend pleadings at a late stage is to be considered under r 16.53 of the Federal Court Rules 2011 ("Rules"), which provides that, unless r 16.51 applies (which is of no present relevance), a party must apply for leave of the court to amend a pleading. In Tamaya Resources Ltd (in Liq) v Deloitte Touch Tohmatsu (a Firm) Re Tamaya Resources Ltd (in Liq) [2015] FCA 1098 (subsequently approved on appeal in Tamaya Resources Ltd (In Liq v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199 (Gilmour, Perram and Beach JJ), Gleeson J considered an application to amend a statement of claim under r 16.53 (as well as an application to amend an originating application under r 8.21 of the Rules). Her Honour observed:
[125] The applicable principles are well established. The court's powers in rr 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92 ; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8].
[126] The onus is on the party seeking leave to amend to persuade the court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].
[127] The principles articulated by the High Court in Aon apply to matters in this court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 ("Cement Australia") at [43]. Relevant matters the court is to consider include:
(1) The nature and importance of the amendment to the party applying for it: Aon at [102];
(2) The extent of the delay and the costs associated with the amendment: Aon at [102];
(3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];
(4) The explanation for any delay in applying for that leave: Aon at [108]; and
(5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ("Luck") at [44];
(6) The detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and
(7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].
[128] The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].
136 Although, for the reasons to which I shall shortly come, it scarcely matters, I am not persuaded that Civil Air should have leave to amend its pleading. On this aspect of its case, Civil Air alleges contraventions of clause 21.7 of the 2017 EA and a contravention of clause 8 of the 2017 EA, in respect of which it seeks the imposition of penalties. In those circumstances, the observations of the full court in Hall at [50] are apposite. Airservices was entitled to be told clearly and precisely the case that it was required to meet. The amendments sought by Civil Air would have the effect of confining the alleged application of the New Policy to two locations, Brisbane and Melbourne. That might have resulted in Airservices calling additional witnesses who work in those locations, or adducing evidence in chief from Ms Brennan and Mr Wells (who gave evidence as to the application of Airservices' reimbursement policy in general terms) in relation to the alleged, narrower point now sought to be advanced.
137 In those circumstances, I am not persuaded that it is in the interests of justice that leave to amend at this late stage should be granted.