Collins v Trimatic Contract Services Pty Ltd & Ors [2014] FCCA 1607

1. This is an application in a case filed on 30 April, 2014 in which the respondents to this proceeding seek a raft of orders which, by and large, fall into two categories. One is an order relating to leave to amend their points of defence or the most recent version of their points of defence and the other is an application to adjourn the trial of these proceedings which is fixed for three days to commence on 11 June, 2014 in Perth.
2. I heard the application yesterday and reserved, to today, my decision on it, although I indicated yesterday that in respect of what might be described as minor tidying up amendments, I was not disposed to make an order permitting those amendments to be made because I saw them as unnecessary and I did not, at that time, feel disposed to adjourn the trial dates.
3. I gave no indication, as I understand it, of my attitude towards some other amendments which might be seen as more substantial and which seek to raise, without attempting to be exhaustive, a defence based on estoppel.
4. It is necessary to understand the chronology of these proceedings for me to properly deal with the application for leave to amend. But before I do so, it's relevant to record that the rules of this court that relate to amendment, those found in Part 7 of the Federal Circuit Court Rules, are not dissimilar to the rules that were considered by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, a case referred to me during the course of argument yesterday. The rules considered in that case by the High Court, rules 501, 502 and rule 21 of the relevant rules of procedure in the Australian Capital Territory are, as I have said, not dissimilar, although they are not identical to the rules that operate in this court and in particular, rules 7.01, 7.02 and rule 1.01.
5. In Aon Risk Services, the High Court pointed out that the statements made by it in the earlier case of State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, to the effect that ultimately in an application such as this, the administration of justice is the ultimate aim and case management rules and practices are subservient to those aims - that is my paraphrase of the ratio in Queensland v JL Holdings, not that of the High Court - those rules ought no longer be applied and that case management is of considerable importance, having regard to the rules that now govern civil procedure and in particular, the rules that were being considered by the High Court in Aon Risk Services, such as rule 21 of the relevant rules there, which has its counterpart here in rule 1.01.
6. These proceedings commenced by an application which was filed on 18 October, 2013. The application was served on each of the respondents on differing dates. The first respondent was served on 23 October, the second respondent on 31 October and the third respondent on 24 October. On 6 November last year, Lucev J made an order which extended time for the respondents to file their responses to the application.
7. That time was extended to 19 November, 2013. Irrespective of which respondent one considers, the extension that was granted was not particularly long. On 19 November, 2013, the respondents filed an application in a case seeking a further extension within which to file their response and points of defence. They sought until 3 December, 2013. For reasons which are not now relevant, the application came before me on 21 November, 2013 and I ordered that the respondents file and serve their responses by 25 November, 2013. I made some other procedural orders.
8. On 25 November, 2013 the responses from each of the respondents were filed. I say responses - they each utilised the same document and they rely on a joint response and points of defence. On 26 November last year, the matter came before the court for directions and there were orders for the delivery of affidavits of evidence-in-chief by the witnesses upon which each of the parties in this case wished to rely. The applicant was ordered to provide his evidence by 6 January this year, the respondents by 3 February this year and any evidence in reply from the applicant by 17 February this year. There was an order for mediation. There was no order which reflected the possibility that any of the respondents might seek to claim a privilege against self-incrimination or any other type of privilege which would mean they did not have to file their evidence within the time limited by the directions. The matter was listed for further directions on 31 March and it was also fixed for trial for three days commencing on 11 June, 2014.
9. So, according to that set of directions a trial date for these proceedings was fixed some six-and-a-half months in advance of the trial. As matters transpired, the applicant has filed affidavits of evidence-in-chief by the witnesses upon which he wishes to reply. Four affidavits were filed in that regard, more or less in accordance with the directions that were made by the Court. The first respondent has filed two it seems. It is not entirely clear from the face of the affidavits that have been filed just which respondent has filed those affidavits and which respondents seek to rely on that evidence.
10. It may be, having regard to some things that fell out in argument yesterday, that the second and third respondents have not filed any evidence at all in support of their case or their defence, but the matter is entirely unclear. The applicant then, in accordance with the directions, filed two further affidavits in reply.
11. On 13 March this year, the parties attended a mediation. The mediation was unsuccessful.
12. On 31 March this year, I made some further procedural orders. The orders that I made were, by and large, made with the agreement of each of the parties. The applicant wished to amend his points of claim and there was an argument about the way in which the order permitting the applicant to file some amended points of claim should be worded. I resolved that argument in the way in which the respondents contended that I should. They were concerned that the wording suggested by the applicant might leave it open for the applicant to make amendments which were far more extensive than those that the applicant had foreshadowed in the correspondence between the parties leading up to the directions hearing. To take account of that, the orders that I made were those which, by and large, were those suggested by the respondents. There were some other orders made, largely by consent between the parties, which dealt with procedural matters.
13. The applicant has filed his amended points of claim and the respondent filed an amended defence and points of defence, as it turns out, by and large, in accordance with those directions. There were directions for delivery of further evidence which have been complied with, as I understand the submissions that were made to me yesterday.
14. It is against that procedural background that the respondents now seek to amend their amended points of defence. It was said in argument in support of the application for amendment that the amendments were largely unremarkable because they did nothing more than repeat facts which had either been pleaded by the applicant or by the respondents already, or which simply drew together the arguments into conclusions of law which were set out in the pleading, and which were done so as not to take the applicant by surprise. They were, at least in some part, described as amendments necessary to "tidy up" various issues.
15. To the extent that the foreshadowed amendments seek to re-plead facts that are already pleaded, the amendments are unnecessary. If facts are already pleaded, they need not be pleaded again. To the extent that the amendments seek to plead conclusions of law, whilst there is certainly many statements in the authorities to the effect that pleading conclusions of law is not fatal, it is not a particularly desirable practice, given that pleadings, essentially, should be confined to allegations of material fact. Conclusions of law are matters for submission and there are directions already in place for the parties to deliver submissions about the facts and the law prior to the trial. So, to the extent that the amendments or any of them simply seek to re-plead facts that have already been pleaded or seek to plead conclusions of law, the application is refused.
16. However, the application seeks leave to amend the amended points of defence in some more significant respects.
17. Paragraphs 49 through to about paragraph 71 of the proposed amended document raise what is said to be a case of estoppel. To understand that, it is necessary to understand a little more about the issues that are joined between the parties in these proceedings. The applicant claims that he was employed by the first respondent and he claims that the first respondent and the second and third respondents are liable to him because the first respondent and the second and third respondents, accessorily, have contravened provisions of the Fair Work Act and are liable to make good to him compensation. They are also, he says, liable to pecuniary penalties for breaches of that Act. His claims, as I understand the submissions made to me, run to millions of dollars. It is not an insubstantial claim.
18. One of the issues that has clearly been raised from the outset is whether the applicant was employed by the first respondent, as he alleges, or whether he was employed by another entity with whom the first respondent contracted, as the respondents allege. The applicant's counsel put it yesterday in the course of submissions that the issue was whether the applicant was an employee or a contractor, but as I apprehend the pleadings, that is not quite the issue, the issue is whether the applicant was employed by the first respondent or by some other company with whom the first respondent had a contractual relationship for the provision of relevant services.
19. On the respondent's case, as I understand it, there was no relevant relationship between the first respondent and the applicant, and at all material times, the first respondent's relationship, contractual or otherwise, was with another entity or entities. The claims of estoppel are said to arise because there were representations made by the applicant to the first respondent (by its officers and agents), to the effect that the applicant was working for one of the other entities identified by the first respondent and the first respondent, it is said, acted on those representations. It would now be unfair or unconscionable for the applicant to be permitted to resile from those representations.
20. That is a claim which has not, before now, arisen on the pleadings. Argument was addressed yesterday to me by the applicant's counsel to demonstrate that even if the respondents were allowed to plead the estoppels, the estoppels would not assist the respondents in their defence of the claim. I do not know whether that is right or not - certainly there seems to be no difficulty with the proposition that estoppels do not operate against a statute, but whether the respondents could make out the estoppels in the sense that they wish to, as set out in the proposed amended pleading, is another matter.
21. As the High Court set out in Aon Risk Services, it is necessary for the court when it exercises the discretion vested in it to give leave to amend to consider a range of matters. The High Court made it clear that gone are the days that a party could expect to be given leave to amend, conditional upon the payment of the costs that might be thrown away by the amendments, just for the asking.
22. There are other matters that need to be considered and those matters need to be considered in the context of the position that has been reached in the proceedings generally. There will be a continuum. Applications for leave to amend made shortly after proceedings have commenced where the proceedings are not very far advanced might, in most circumstances one would expect, be more easily granted than applications for leave to amend at the end of proceedings close to a trial.
23. Indeed, both Queensland v JL Holdings and Aon are examples perhaps of each end of the extreme. There are many others. Here, it is not suggested by the applicant that there is any particular prejudice to it by the amendments. Indeed, one of the submissions that was made in opposition to the amendment, was that the amendments really did not add much to the case, at least, in certain respects.
24. But it was said by the applicant that there was the ordinary type of prejudice that might flow to a litigant by not having a case determined quickly or speedily and in this case, there might be some prejudice to the applicant which would flow from the adjournment of the trial, if the granting of the amendments led to the adjournment of the trial.
25. These proceedings have advanced to a point where they are almost ready for trial. The only thing, as I understand it, which remains undone is the delivery of some further evidence by the respondents if they wish to give it, in accordance with the last set of directions and the delivery of outlines of submission by each of the parties prior to the hearing.
26. The Court has allocated at least three days for the hearing of this case in Perth and, because the judge in Perth cannot hear this matter, arrangements have been made for another judge not from Western Australia (there is only one judge of this Court resident in that State) to hear the case in Perth. As the High Court points out in Aon, the costs to the Court and the public are matters which are relevant considerations.
27. Another relevant consideration is the explanation for the failure to plead what now is sought to be pleaded, before now. In that respect, there is an affidavit from a solicitor who suggests that the estoppel case was raised for the first time in about the middle of February of this year.
28. It was not until after the mediation, it seems, that steps were taken to have that formalised. When the matter was before me on 31 March, there was no mention that there might be an amendment to plead the estoppel that is now sought to be relied on. There was argument before me about whether I ought to make an order permitting the respondents to make a further interlocutory application dealing with amendments to their points of defence. I refused to make that order, but only because such an order or direction was not necessary. If the defendants wished to pursue an amendment to their points of defence, they were entitled under the rules, without any order from me, to bring such an application and if they did so, it would be listed and dealt with in the usual way. That is what has occurred. Nothing ought to be read into the fact that I did not make an order permitting the respondents to bring an application for leave to amend. The order was simply unnecessary in the circumstances.
29. Be that as it may, no mention was made of the estoppel point at that directions hearing, notwithstanding that very shortly prior to the directions hearing, a letter had been sent from the solicitors for the respondents to the solicitors for the applicant, suggesting that such amendments might be made. As I have already indicated, it was not until 30 April, some two-and-a-half months after the question of estoppel first arose in the minds of the respondents that this application to amend the points of defence has been made.
30. Perhaps the most significant matter which has persuaded me that I ought to allow the application to amend, insofar as it relates to the claims for estoppel, is the lack of a suggestion from the applicant that it would prejudice him and the conduct of his case beyond the prospect that the trial might have to be adjourned, if the amendments were allowed.
31. For reasons for which I will give shortly, I do not propose to adjourn the trial and if the trial is not adjourned, then the concern that the applicant harbours about the amendments evaporates. I have some concerns about the extent to which the amendments raise some matters which are not, despite the submissions that were made to me, found elsewhere in the pleading, but nothing of any significance was made of that in the course of argument.
32. In those circumstances, I propose to permit the respondents to amend their amended points of defence, to incorporate paragraphs 51 through to paragraph 71 of the document which is annexed to the application in a case filed on 30 April, 2014. Other than that, the application to amend the amended points of defence is refused.
33. I will make an order that no later than 4 pm on 20 May, the respondents file and serve any further affidavit evidence relating to the amendments in their amended points of defence. Thereafter, no later than 4 pm on 27 May, the applicant file and serve any further affidavit evidence upon which he intends to rely, relating to the amendments in the amended points of defence.
34. Other than that, the directions that are already in place will remain. The respondents seek that the trial dates be adjourned. As I have already indicated, I do not intend to adjourn the trial. There are a number of matters relied upon by the respondents to justify the adjournment. The first is that it is said that pre-trial steps including discovery, the provision of particulars and the filing of further affidavits will need to be completed
35. This is a Court in which there is no right to discovery and, as I apprehend the material that is already before me, there has been no order applied for, nor none made, which provides for discovery between the parties. I am not satisfied by the evidence that there is any difficulty about particulars between the parties. I was taken to the affidavit of Mr Scanell and it was suggested that there are outstanding issues between the parties about particulars, but as counsel for the applicant ably demonstrated, if it is the case that there is outstanding difficulty between the parties about particulars, that difficulty has been of long-standing, having regard to the correspondence, and the respondents have done nothing about it in terms of applying to this Court for orders.
36. It is a matter of too late, if there is indeed a difficulty. The length of the trial was said to be a reason to adjourn the trial. I do not think it is. Trials tend to develop a life of their own. Some take much shorter than all of the parties anticipate and some take much longer. The Court has already allocated three days, but given that this is a special fixture and special arrangements have been made for the hearing of the trial, it may be that additional time in the week in which the trial is already listed, will be available.
37. In the event that that time is available and in the event that the trial has not completed at the end of the third day, I will expect that the trial will continue for so long as I am available in Perth. It may be that the trial can still not be completed, but so be it.
38. I am not satisfied for those reasons that there is good reason to adjourn this trial and that application will be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 May, 2014.