Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd

LOGAN J: 1 The Director of the Fair Work Building Inspectorate (the Director) has sought further to amend a statement of claim in respect of a proceeding against ADCO Constructions Pty Ltd (ADCO), in which the Director alleges a number of contraventions of s 354 of the Fair Work Act 2009 (Cth) (Fair Work Act). Put generally, those allegations concern alleged discrimination against a crane subcontractor, Surf City Cranes Pty Ltd, with the particular offending conduct said to be constituted by instances of refusal to engage Surf City Cranes Pty Ltd because its employees were not covered by an enterprise agreement to which the Construction, Forestry, Mining and Energy Union (CFMEU) was a party. 2 The proposed amendments are to be found in the draft further amended statement of claim, which comprises exhibit SLB2-1 to an affidavit of a Ms Samantha Betzien, who is a member of the firm of solicitors who act for the Director. Some of the proposed amendments are not controversial. I do not therefore propose to deal with them in these reasons for judgment. Others, though, are controversial. In particular, there is a suite of amendments found in proposed paras 88A, 88B and 88C that relate to what the pleading terms the "Robina Project". 3 Another suite of amendments which are controversial are to be found at proposed paras 56A, 56B and 56C, with a related consequential proposed amendment to para 57. These allegations concerned alleged conduct of Mr Kitto. That conduct is pleaded in paras 45 and 46. The proposed amendments, if granted, would be the second amendment of the statement of claim. 4 The trial concerned is fixed to commence on 6 June 2016 before Collier J. Affidavits both for the Director and for ADCO have been filed in accordance with case management directions made some months ago. 5 So the question becomes whether or not it is procedurally fair to permit the Director, given the present proximity of the trial and the fact that affidavits have already been filed by both the Director and ADCO, to permit the further amendment? The principles concerned are not in doubt, and perhaps they never were. In any event, whatever may have been the position, having regard to Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 (J L Holdings) and whether JL Holdings was but an application on particular facts of an overarching obligation to afford procedural fairness, has been overtaken by a later judgment of the High Court in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175, as well as amendments to the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), notably ss 37M and 37N. 6 The long and the short of it is that case management directions have both a particular resonance in terms of late amendments, as well as a general resonance in terms of the efficient use of the public resources allocated to the exercise of the judicial power of the Commonwealth by the third or judicial arm of government. As to the latter, it was not put that there ought to be an adjournment of the trial; rather, that the amendment should not be allowed because it violated case management directions and would prejudice ADCO in the conduct of its defence. 7 In Construction, Forestry, Mining and Energy Union v BHP Coal (2015) 230 FCR 298, a Full Court, of which I was a member, observed at 311, [64]: Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate a just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. There was then reference to s 37M of the Federal Court Act. If further authority were needed for the proposition that the overarching purpose is relevant, it is to be found in Cement Australia v Australian Competition and Consumer Commission (2010) 187 FCR 261 at 274, [43]. 8 As to the amendments that relate to the alleged conduct of Mr Kitto, namely, paras 56A, 56B and 56C, it is put that there is the potential for embarrassment of ADCO in its defence in that there is pregnant in para 46 in particular, an allegation of a general policy being implemented in a particular instance by necessary inference. There is no express pleading either as proposed, or before, of a general policy. It is then put that embarrassment lies in the shortness of time within which, prior to trial, Mr Kitto would have to survey the operations of ADCO so as to underscore a general denial that there was no general policy of refusing to deal with those subcontractors who were not parties to a CFMEU Enterprise Agreement. 9 I was initially attracted to this as a basis for refusing these particular amendments. On reflection, and having had the benefit of being taken to the affidavits already filed on behalf of ADCO, of Messrs Kitto and Hawkins, and looking at the pleading both as originally cast and already amended, that attraction has waned. 10 As originally cast, it was Mr Hawkins who was alleged to be the party in respect of the statement made at a meeting on 27 October 2012. Then it became, by amendment, Mr Kitto on that date and now the date has been changed in para 45 to 23 July 2013. It has, though, always been possible for ADCO to endeavour to discharge what has been termed in submissions "the reverse onus" by giving colour and substance to a general denial of an absence of corporate policy by highlighting a range of operations in which no such policy is evident in relation to the engagement of subcontractors. 11 Mr Hawkins is more senior in the corporate hierarchy than Mr Kitto. It is a feature of Mr Hawkins' affidavit that he has made references to the more general position. Ever since the amendment already made in paras 45 and 46 in respect of Mr Kitto, it has also been possible for ADCO to have him address the more general as well. To some extent, he has done that, albeit not prompted by the particular date change proposed for para 45. 12 It seems to me that whatever injustice might be visited, and I do not consider it to be much, given the opportunity that might be visited on ADCO by these particular proposed amendments concerning Mr Kitto, can be ameliorated by granting to ADCO leave to adduce such oral evidence as it may be advised from Mr Kitto and, for that matter, Mr Hawkins, on the subject of the case as alleged in proposed paras 56A, 56B and 56C. 13 There was another objection in relation to these proposed amendments. That had as its foundation, observations made in the Full Court in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Proprietary Limited (2012) 203 FCR 345 by a Full Court and earlier that year by Gray J in Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46, particularly at [90]-[94]. These observations were made in relation to the provisions of s 45 of the Building and Construction Industry Improvement Act 2005 (Cth), but at least for present purposes, the mischief addressed by that section is sufficiently analogous to s 354 of the Fair Work Act to make the observations found in each of these cases that there must be some adverse consequence identified from differential treatment in order to establish a contravention. 14 The Director alleges that the adverse consequence is to be found in a refusal to deal. I do not consider that the point made for ADCO that there is no reasonable cause of action disclosed by these particular proposed amendments to be so compelling as to refuse, on the basis of the two cases just mentioned, the amendment. I consider that that is an issue to be addressed at trial. 15 For these reasons, then, I propose to allow the amendments sought by way of the addition of paras 56A, 56B and 56C with the consequential amendment to para 57, subject to the rider I have mentioned in relation to leave to adduce further oral evidence. In making that rider, I am deeply conscious that it intrudes upon the management of a case shortly for trial by another judge. It is just that that judge, being absent on leave and the trial being so proximate, I consider that the interests of justice require that the leave to adduce further oral evidence not be deferred until trial, as opposed to being dealt with now. That will allow ADCO almost a fortnight to take such instructions from those persons as it may be advised in the knowledge that leave has already been granted. 16 As to the amendments sought in paras 88A, 88B and 88C, these have, as came to be common ground, a reactive quality. In particular, they are reactive to paras 85 and 86 of the defence. Whether or not they are a good pleading in terms of alleging separate contraventions in respect of something, is a subject which is best dealt with at trial. Once again, the case is not so clear as to warrant dealing with that question now. They do not have, in the way that paras 56A, 56B and 56C might, an evidentiary, as opposed to a forensic debate tail. 17 Another feature of the proposed amendments is that they abandon, entirely, allegations concerning what the pleadings call the Pindara Hospital project. It is conceded that that abandonment will have a time-saving factor in relation to the length of the trial. I have taken the time-saving factor into account in relation to the consequence of a grant of leave to adduce supplementary oral evidence from the witnesses named. It looks as if there will be, at worst, something one might term a "swings and roundabout" impact from this. So much seemed to be common ground as submissions evolved. 18 The abandonment, though, of the Pindara Hospital project allegations does raise the thought that ADCO may have had visited on it costs which it ought not to have had to incur. That was not a subject particularly addressed today in submissions in relation to the impact of the proposed amendment and the terms upon which it should be granted. Nonetheless, it is apparent enough from the affidavits which I have examined, namely those of Messrs Kitto and Hawkins, that there has been an impact, particularly in relation to Mr Hawkins. It may be that the impact is rather wider than this. 19 In any event, what I propose to do is expressly to reserve a question as to whether exceptionally, having regard to the usual position which prevails under the Fair Work Act, the costs thrown away by the amendment should be those of ADCO, to the trial judge. I propose expressly to reserve that so as to highlight to her Honour that there may be a need to consider that subject, irrespective of what may be the outcome of the proceeding at trial. To assist in that regard, I have already made observations about a discernible impact. These are not intended to be prescriptive, only impressionistic. 20 For these reasons, then, and subject to the grant of leave mentioned in relation to oral evidence, the director has leave to further amend the statement of claim in the terms proposed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.