Fair Work Ombudsman v Al Hilfi

Place: Adelaide

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 40

Counsel for the Applicant: Mr M Pearce SC with Mr G Edmonds-Wilson

Solicitor for the Applicant: Clayton Utz

Counsel for the First Respondent (SAD 27 of 2012): The First Respondent appeared in person

Counsel for the First Respondent (SAD 109 of 2012): The First Respondent appeared in person

Counsel for the Second Respondent: Mr S Richter

Solicitor for the Second Respondent: Grope Hamilton Lawyers

Counsel for the Third Respondent: The Third Respondent did not appear

Counsel for the Fourth Respondent: Mr S Moore

Solicitor for the Fourth Respondent: Lander & Rogers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 27 of 2012

COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708

JUDGE: BESANKO J DATE OF ORDER: 17 JANUARY 2013 WHERE MADE: ADELAIDE

1. The applicant bring in minutes of order reflecting the conclusions in these reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY fair work DIVISION SAD 109 of 2012

JUDGE: BESANKO J DATE OF ORDER: 17 JANUARY 2013 WHERE MADE: ADELAIDE

1. The applicant bring in minutes of order reflecting the conclusions in these reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 27 of 2012

COLES SUPERMARKETS AUSTRALIA PTY LTD ABN 45 004 189 708

JUDGE: BESANKO J DATE: 17 JANUARY 2013 PLACE: ADELAIDE

INTRODUCTION 1 The Fair Work Ombudsman ("FW Ombudsman") has commenced two proceedings in this Court alleging contraventions of the Fair Work Act 2009 (Cth) ("FW Act"). The first proceeding is SAD 27 of 2012 and is brought against four respondents, being Messrs Al Hilfi, Albarouki, Ferriere and Coles Supermarkets Australia Pty Ltd (ABN 45 004 189 708) ("Coles"). I will refer to this proceeding as the Al Hilfi proceeding. The second proceeding is SAD 109 of 2012 and is brought against four respondents, being Messrs Al Basry, Albarouki, Ferriere and Coles. I will refer to this proceeding as the Al Basry proceeding. 2 In each proceeding Coles issued an interlocutory application dated 24 August 2012 seeking an order that the application against it be dismissed, or in the alternative, an order in the Al Hilfi proceeding that paragraphs 54-60 of the FW Ombudsman's Further Amended Statement of Claim be struck out and an order in the Al Basry proceeding that paragraphs 57-63 of the FW Ombudsman's Amended Statement of Claim be struck out. 3 I heard those applications on 21 September 2012 and delivered reasons for judgment on 26 October 2012: Fair Work Ombudsman v Al Hilfi [2012] FCA 1166. The issues in the Al Basry proceeding are the same as they are in the Al Hilfi proceeding and I can confine my attention to the Al Hilfi proceeding. The parties are agreed that whatever order is made in the Al Hilfi proceeding is also the order (with necessary variations) which should be made in the Al Basry proceeding. 4 On publishing my reasons for judgment I made an order that on or before 16 November 2012 the FW Ombudsman lodge and serve a Second Further Amended Originating Application and a Second Further Amended Statement of Claim in accordance with other orders I made at that time and otherwise in accordance with the reasons for judgment at [2012] FCA 1166. 5 The FW Ombudsman complied with that order, but Coles submits that the documents he served were defective in a number of respects and that leave should not be granted for those documents to be filed. 6 These reasons deal with the FW Ombudsman's application for leave to file and serve a Second Further Amended Originating Application and Second Further Amended Statement of Claim. The real focus of Coles' challenge was to the proposed Second Further Amended Statement of Claim. These reasons should be read with my earlier reasons. 7 Coles' complaints about the proposed Second Further Amended Statement of Claim essentially fall into two categories. The first category relates to the FW Ombudsman's plea of s 793 of the FW Act and a number of what are said by Coles to be fundamental defects in the plea. The second category relates to amendments to paragraphs where the essence of Coles' complaint is a failure to provide necessary particulars.

The Plea of s 793 of the FW Act 8 In my earlier reasons I noted that the FW Ombudsman relied on the common law rules relating to the attribution and aggregation of knowledge or information in relation to a body corporate and I referred to a deficiency in his pleading. I said (at [52] and [53]): First, Coles submits that paragraphs 55, 56 and 57 are defective because they do not plead the identities of the natural persons whose knowledge the Ombudsman contends should be attributed to Coles. Coles submits that such a pleading is essential at common law: Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279 per Bright J; Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582-583 per Brennan, Deane, Gaudron and McHugh JJ; The Bell Group Ltd (In Liquidation) & Ors v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273 at [48]-[62] per Owen J. Coles points out that the Ombudsman has not sought to rely on the provisions of subsections 793(2) and (3) of the FW Act which deal with the attribution of a state of mind to a body corporate. In my opinion, the identity of the persons whose knowledge the Ombudsman submits should be attributed to Coles should be identified in the Ombudsman's pleadings. Some names are referred to in the existing pleadings and it may be said that by implication their knowledge is to be attributed to Coles. However, I think that the attribution point should be expressly and clearly pleaded. There are two further related points. First, paragraph 55 refers to Coles' knowledge whereas paragraphs 56 and 57 refer to Coles' awareness. As I understand counsel for the Ombudsman, the pleas are said to mean the same thing. I think it appropriate that the same terminology be used to avoid any ambiguity. Secondly, and more importantly, in paragraphs 56 and 57 the Ombudsman pleads that Coles' awareness was imputed in the alternative to being actual. As I understand counsel for the Ombudsman, that plea is in effect a plea of attribution. He does not claim that constructive knowledge is sufficient. To my mind the pleas are at the very least ambiguous and in the circumstances should be clarified. 9 In his proposed Second Further Amended Statement of Claim the FW Ombudsman seeks to introduce a plea of s 793 of the FW Act. It is in the following terms: 54A At all relevant times: (a) the following persons were employed by Coles and held the respective offices referred to below: i. Mark Franke, Senior Buyer; ii. Daniel Crofts, National Expenses Manager; iii. Lian Knight, Tendering and Contracts Manager; iv. Anthony Manitta, Vendor Manager General Services; v. Srete Cvetkoski, Vendor Manager; vi. Joseph Gallo, Customer Trolley Manager; vii. Greg Birch, Contracts Manager, Supermarkets; viii. Andrew Cove, Category Manager; ix. Anthony Basile, Equipment Co-ordinator and Trolley Manager; x. Michael Hughes, Store Services General Manager; xi. Paul Bradshaw, Store Services General Manager; and xii. Simon LeGear, General Manager of Procurement Services; (b) pursuant to section 793 of the FW Act Coles is taken to have the state of mind (including the knowledge, intention or purposes) of the persons referred to in paragraph (a) above in relation to conduct engaged in by them within the scope of their actual or apparent authority; and (c) by reason of the matters referred to in sub-paragraph (b), Coles is taken to have the knowledge of the persons referred to in sub-paragraph (a) which is set out in paragraphs 55 to 57 below. 10 Paragraph 54A(c) of the proposed plea refers to paragraphs 55 to 57 which are paragraphs in the Further Amended Statement of Claim. Paragraph 55 pleads that Coles knew certain matters at the time of the Head Contract, that is, 26 March 2009. Paragraph 56 pleads that Coles knew certain matters from a date in or about February 2009 and leading up to 1 January 2010. Paragraph 57 pleads that Coles knew certain matters concerning wages and conditions during the "whole of the Relevant Period", which is defined as the period from 1 January 2010 to 17 March 2011. These paragraphs (without the Particulars to them) are set out in my earlier reasons at paragraph 30. In the proposed Second Further Amended Statement of Claim there are some amendments to the paragraphs, but for present purposes I do not need to identify those amendments. 11 Section 793 of the FW Act is in the following terms: 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. Disapplication of Part 2.5 of the Criminal Code (4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act. Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility. (5) In this section, employee has its ordinary meaning. 12 Coles' principal complaints about the proposed plea in paragraph 54A are as follows: (1) The plea in paragraph 54A(b) is deficient in that it does not identify the particular conduct carried out by the named employees or officers; (2) The plea in paragraph 54A(b) is deficient in that it does not contain an allegation of the scope of the actual or apparent authority of the named employees or officers; and (3) The plea in paragraph 54A(c) is deficient in that: (a) there is "no sense to the allegation that Coles' knowledge asserted in those paragraphs can be aggregated as Coles' knowledge"; (b) there is no plea of the knowledge said to have been held by each of the named employees or officers; (c) there is no plea of when each of the named employees or officers had the knowledge which the Ombudsman seeks to attribute to Coles; at present the plea is that Coles had the knowledge "At all relevant times"; and (d) there is no pleaded basis upon which knowledge can be aggregated and attributed to Coles. Coles submits that that can only be done if the named employees or officers constituted the directing mind and will of Coles or if there was a duty on the part of one employee or officer to communicate information to another. 13 With respect to the argument identified in paragraph (3)(d) above, Coles points to the fact that there is no plea that any of the named employees or officers were the directing mind and will of Coles so as to bring the case within the principle identified in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 and Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (see also Hamilton v Whitehead (1988) 166 CLR 121). Nor is there a plea sufficient to bring the case within the only alternative to the directing mind and will principle, which is if there is a duty and opportunity by one employee or officer to communicate information to another. I was referred to a number of cases to establish the latter proposition including Re Chisum Services Pty Ltd v The Companies Act 1961 (1982) 7 ACLR 641; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133; K & S Corporation Ltd v Sportingbet Australia (2003) 86 SASR 312; Australian Competition and Consumer Commission v Radio Rentals Ltd and Another (2005) 146 FCR 292 and the decision at first instance in The Bell Group Ltd (In Liquidation) and Others v Westpac Banking Corporation and Others (9) (2008) 70 ACSR 1. 14 Coles submits that as there is no reason to think that s 793 of the FW Act operates to exclude the common law principles (Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 530) there is "no reason why the common law principles of aggregation and attribution outlined above do not operate in the context of s 793 of the Act". 15 I proceed on the basis that I ought not to grant leave to amend a pleading where the proposed pleading does not comply with one or more of the relevant rules of pleading. In this case those rules are Rules 16.21(1)(c), 16.21(1)(d), Rule 16.41 and Rule 16.45 of the Federal Court Rules 2011 (Cth). 16 A number of observations may be made at the outset. First, the FW Ombudsman's existing pleading (Further Amended Statement of Claim) relies on common law principles relating to the attribution and aggregation knowledge in relation to a body corporate. Some criticisms were made of the pleading at the hearing on 21 September 2012 and were dealt with in my earlier reasons (see [8] above). The focus of Coles' present challenge is the plea of s 793. Secondly, neither party argues that s 793 of the FW Act precludes the operation of the common law doctrines of attribution and aggregation. On the face of it, there is no reason not to take the same approach as was taken in the case of s 349 of the Workplace Relations Act 1996 (Cth) (Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 530) and s 84 of the Trade Practices Act 1974 (Cth) (Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 61 FLR 52; 44 ALR 391). Thirdly, Coles submits that aspects of the common law doctrines of attribution and aggregation in relation to a body corporate are relevant to the interpretation and application of s 793 of the FW Act. I deal with that argument below. 17 Coles' first complaint is that the proposed pleading in paragraph 54(b) does not identify the conduct engaged in by the named employees or officers. Section 793(1) refers to conduct engaged in on behalf of a body corporate and s 793(2) refers to particular conduct engaged in by a person referred to in s 793(1). Under the FW Act conduct is defined to include an omission (s 12) and under the accessorial liability provision relied on by the FW Ombudsman, that is, s 550(2)(c), a person may be knowingly concerned in or party to a contravention by act or omission. 18 The particulars to paragraphs 55, 56 and 57 refer to various acts by one or more of the named employees or officers referred to in paragraph 54A. However, as I understand the FW Ombudsman's case, that is not the conduct he relies on for the purposes of engaging s 793. The conduct relied on for that purpose is that pleaded in paragraph 58 which is as follows: 58. Despite the matters alleged in paragraphs 53 54 to 56 57 Coles: (a) neither before or after 1 January 2010 took any action or any action likely to be effective to ensure that Starlink required Al Hilfi after 1 January 2010 complied with the wages and conditions that applied to the Employees under a federal award or to comply with provisions of the FW Act in relation to the issuing of pay slips or the keeping of employee records or from requiring Al Hilfi to do so. (b) by refraining and omitting to take such action induced in Starlink the belief that: (i) Coles did not require it to ensure that Al Hilfi paid and extended the Employees the wages and conditions prescribed by award; and (ii) Coles acquiesced in Al Hilfi not complying with those wages and conditions and that Coles would not take any step adverse to its business by reason of any non-compliance by Al Hilfi with those wages and conditions. (c) by refraining and omitting to take such action induced in Al Hilfi the belief that: (i) Coles did not require him to ensure that he complied with the wages and conditions prescribed by federal award; and (ii) Coles would not take any step adverse to his business by reason of him not complying with those wages and conditions. 19 The FW Ombudsman's case that the conduct of the named employees or officers is the conduct being the omissions identified in paragraph 58 and it is that conduct which is to be attributed to Coles by reason of s 793 of the FW Act. That should be made clear and could be done by a reference in paragraph 54A(b) to paragraph 58. That would limit the FW Ombudsman's case to conduct being omissions by one or more of the named employees or officers. 20 Coles' second complaint is that the proposed pleading in paragraph 54A(b) does not identify the scope of actual and apparent authority of each of the named employees or officers. I think that if there is an amendment along the lines I have suggested in response to the first complaint then this will deal with the second complaint. With the amendment I have suggested there will then be the following: (1) an identification of the position held by named employees or officers; (2) an identification of the conduct of one or more of the named employees or officers, that is, the conduct in paragraph 58 with respect to which it is alleged that they had actual or apparent authority; and (3) an allegation of actual or apparent authority. 21 I do not think it is necessary to plead, in addition to an allegation of actual or apparent authority, facts identifying the scope or boundaries of the authority. 22 Coles' third complaint is that the proposed pleading in paragraph 54A(c) does not contain a plea of the material facts which are necessary to engage s 793. Coles submits that the plea is in effect a plea of the aggregation of knowledge of the named employees or officers and that there are three problems with the plea. 23 First, the plea does not identify the times at which the relevant knowledge was said to have been held. Paragraph 54A refers to "At all relevant times" without containing any definition of when those times are said to be. The three paragraphs which plead knowledge each refer to particular times and the details are set out in paragraph 10 above. Coles submits that the confusion or ambiguity is exacerbated by the fact that it is clear from the particulars in paragraphs 55, 56 and 57 that different people had different knowledge at different times. I reject Coles' complaint. It seems to me only sensible to read at "At all relevant times" in paragraph 54A as a reference to the particular times specified in paragraphs 55, 56 and 57. 24 Secondly, Coles submits the plea in paragraph 54A(c) is deficient in that it does not identify the particular fact known by the particular person. There is force in this submission and the pleading could be clearer in its terms. However, the question is whether Coles has fair notice of the case it will have to meet at trial and I think a careful reading of the particulars to paragraphs 55, 56 and 57 results in the conclusion that it does. 25 Thirdly, Coles submits that aggregation of knowledge or information can only take place in certain circumstances and there is no plea of those circumstances. The submission is that absent a plea that each of the named employees or officers was part of the directing mind and will of Coles (and there is no such plea) the only basis for aggregation of knowledge or information is where there is a duty and opportunity to communicate information. There is no plea of a duty to communicate information. It seems to me that there are two answers to this submission. First, it is at least reasonably arguable that as far as s 793 of the FW Act is concerned it operates according to its terms and it is not constrained by common law principles. It is at least reasonably arguable that the terms of s 793(2) are wide enough to permit aggregation without the need to show a duty to communicate information. Secondly, even if the common law principles apply to s 793, it is at least reasonably arguable that a duty to communicate information is not a prerequisite to aggregation at common law and that having regard to the decision of the High Court in Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 at 582-583 per Brennan, Deane, Gaudron and McHugh JJ it is sufficient if it is appropriate to regard the persons involved in a particular transaction as part of the directing mind and will of the body corporate (see LexisNexis Butterworths Ford's Principles of Corporations Law vol 1 (at para [16.230]) (Looseleaf edition)) or that the relevant persons were involved in the one transaction (Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 89 ACSR 1 at 366-373 [2174]-[2200] per Drummond AJA (with whom Lee AJA agreed at 172 [1100])).

Complaints About Particulars 26 The FW Ombudsman accepts that the allegation in paragraph 54(b) has been included in the proposed Second Further Amended Statement of Claim by oversight and that it should be deleted. 27 The first two paragraphs of the Particulars to paragraph 55 of the proposed Second Further Amended Statement of Claim are as follows: Coles' awareness knowledge of each the [sic] matters alleged in paragraphs 54 55(a), (b), (c), (d) and (e) was actual and arises from or is to be inferred from: (a) The receipt by Franke, Manitta, Gallo, Cvetkoski, Knight and Cove of information from Starlink during the course of a tender process conducted by Coles from July 2008 for the supply of trolley collection services for certain of its WA, SA and NT stores through the issue of a written Request for Proposal (RFP) issued on 30 July 2008, including Starlink's written responses to the RFP and in response to the requirements contained in an Implementation Kit provided by Coles to Ferriere by email of 18 February 2009. (b) The circumstance that Coles closely evaluated that information through the processes of a tender evaluation committee consisting of senior managers of Coles, Kmart and Target (TEC) particulars of which are contained in paragraph 29 of the affidavit of Mark Franke of Coles sworn on 16 August 2011 (Franke Affidavit) in proceedings in case no. 2011/248798 in the Equity division of the Supreme Court of New South Wales in which Starlink was plaintiff, Coles was first defendant and Kmart Australia Ltd was second defendant (Starlink Action). i. The members of the TEC from Coles were Crofts, Birch, Gallo and Manitta; ii. Crofts reported to his general manager Hughes; iii. Gallo participated in the TEC, and after award of the Head Contract to Starlink, supervised the day to day operations of the Head Contract. 28 Coles submits as to (b)(ii), that it is unclear whether information was reported to Mr Hughes or the plea is relevant in some other way. I agree the plea should be clarified. 29 Coles submits as to (b)(iii), that it is unclear what is meant by "participated" and "supervised". I disagree. "Participated" means, I think, membership of the committee and involvement in its activities. "Supervised" is an ordinary English word. 30 Paragraph 58 is in the same terms as the existing pleading save for a deletion. It is set out in paragraph 18 above. 31 Coles' submission as to this paragraph is as follows: This appears to be the central allegation advanced against Coles and should be pleaded with precision. On its terms, the specific allegation being advanced is not comprehensible. 32 I would not allow Coles to raise a matter which it could have raised on the previous occasion when Coles challenged the FW Ombudsman's Further Amended Statement of Claim. The deletion does not give rise to a new matter.

Costs 33 The costs of Coles' interlocutory application were reserved on 26 October 2012. Coles applies for its costs of the application. 34 Section 570 of the FW Act is in the following terms: 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before FWA; (ii) the matter arose from the same facts as the proceedings. 35 In its written submissions Coles relied on s 570(2)(b) and pointed to the following matters: 1. The fact that the FW Ombudsman has had a number of opportunities to file appropriate pleadings. I refer to, without repeating, what I said in my earlier reasons at [9]-[13]. 2. The fact that I indicated that I would allow summary judgment in so far as it related to Coles' alleged involvement in contraventions of ss 536(1) and 535(1) of the FW Act and that I allowed Coles' application to strike out the pleading of s 550(2)(a) and (b) of the FW Act. 3. The fact that it has incurred costs as a result of the FW Ombudsman's attempts to plead his case properly. 36 In Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392, Tracey J considered the provisions of s 824 of the Workplace Relations Act 1996 (Cth). That section was analogous to s 570 of the FW Act. His Honour said (at 402 [36]): In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania (1989) 28 IR 129, Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138-9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category. I take a different view of the applicant's conduct in relation to the second strike-out application. The second further amended statement of claim contained the same major deficiencies as its predecessor insofar as it dealt with the Part XA claim. The applicant instituted but then withdrew an application for leave to appeal from my decision. It persisted with pleadings which were inconsistent with my reasons for striking-out the first amended statement of claim. In so persisting, I consider that the applicant acted unreasonably for the purposes of s 824(2). The second further amended statement of claim also sought to plead a cause of action under Part 16. That aspect of the pleading failed by reason of embarrassment, not because it was untenable. I do not consider that it was unreasonable for the applicant to pursue the Part 16 aspect of its claim. In my view it is appropriate to order that the applicant pay half the respondent's costs of the second strike-out application. (See also Construction, Forestry, Mining and Energy Union and Others v Clarke (2008) 170 FCR 574 at 582 [28]). 37 In oral submissions Coles abandoned any reliance on the FW Ombudsman's attempts to plead his case prior to the Further Amended Statement of Claim. 38 I do not think Coles is entitled to an order for costs. It was unsuccessful in relation to one of its principal arguments. Moreover, the argument concerning the alleged contraventions of s 536(1) and s 535(1) of the FW Act were to an extent subsidiary to the main argument concerning s 45 of the FW Act and although I ultimately rejected it, the FW Ombudsman's argument concerning s 550(2)(a) and (b) was not far-fetched or unreasonable. 39 The FW Ombudsman applied for his costs of the hearing on 14 December 2012 on the basis that Coles should have been in a position to put its argument on 29 November 2012. Furthermore, he submits that Coles' repeated challenges to his pleadings are an abuse of the process of the Court. I reject both these contentions. There was nothing unreasonable in Coles wishing to have its counsel present an argument on the proposed Second Further Amended Statement of Claim which introduced for the first time a plea of s 793 of the FW Act. The challenges to the pleadings by Coles have for the most part been fairly arguable.

Conclusion 40 Subject to the three matters I have identified (paragraphs 19, 26, 28), I would grant the FW Ombudsman leave to amend in terms of the proposed Second Further Amended Statement of Claim. I would not make any order for costs in relation to Coles' interlocutory application or the hearings on 29 November 2012 and 14 December 2012 respectively. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.