Comcare v John Holland Rail Pty Ltd

REASONS FOR JUDGMENT 1 The issue before me is when the respondents' notice of motion of 14 October 2010 should be listed for hearing. I have brought the matter on to take submissions on that issue, and that issue alone. The issue in question is whether the notice of motion should be listed prior to the trial of the matter or at the trial. In giving consideration to that question, I need to balance any potential prejudice that might be occasioned to the respondents if the notice of motion was dealt with at the trial rather than at a time earlier to the trial. I need to balance any potential prejudice against, and by reference to, the overarching purpose referred to in s 37M of the Federal Court of Australia Act (Cth) 1976. 2 This matter has been listed for hearing for over three months. It is listed for 15 days, commencing on 7 March 2011. A Defence was filed on 6 August 2010 which raised, in part, if not wholly, the matters agitated by the respondents' notice of motion. The notice of motion was not filed until 14 October 2010, and the evidence in support of the notice of motion suggests that no steps were taken by the respondents prior to about 15 September 2010 to agitate the matters raised by the notice of motion. I note also that some aspects of the matters raised by the notice of motion were the subject of the respondents' notice of motion of 3 August 2010, and that whilst that notice of motion was heard on 10 August 2010, those matters were not pursued by the respondents, and the further disposition of that notice of motion was adjourned to the trial of the proceeding. 3 In reaching my decision, I have taken into account the Court's capacity at trial to ensure a fair trial, and, in particular, that no party is ambushed by having to deal with issues or evidence not properly raised in pleadings or otherwise which are the subject of due notice. I have taken into account, in particular, the efficient use of the judicial and administrative resources available to the Court, and the need for a quick, inexpensive and as efficient as possible facilitation of the just resolution of the dispute according to law. 4 The asserted prejudice put by the respondents in the notice of motion not being dealt with at a time earlier to trial, is said to relate to what the respondents perceive to be a need for them to deal with the injury to Mr Meridith and the manner in which that injury occurred on 17 June 2007. It is not apparent to me at this stage (and I have regard to the matter only for the purpose of determining when the notice of motion should be listed) that what is pleaded against the respondents involves the event of the injury to Mr Meridith, as an element of the contravention alleged in the further amended statement of claim. Indeed, in proceedings today, counsel for the applicant Mr O'Grady, said as much. In those circumstances, I am minded to infer that the nature of any asserted prejudice that the respondents believe will be occasioned to it is much overstated. 5 Taking into account the possibility of prejudice, and taking into account the overarching purpose identified in s 37M of the Act and each aspect of it, I have determined to list the notice of motion for hearing at the hearing of the trial of the proceeding, and I will so order. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.