Health Services Union v Asmar

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered _ex tempor_e, revised from transcript)

1. The applicant, the Health Services Union, makes application to amend its concise statement and originating application filed 10 September 2024. The matter is listed for hearing in five days (being two working days) time. In those urgent circumstances, I provide my reasons ex tempore.
2. The Union's originating application is made under s 323 of the Fair Work (Registered Organisations) Act 2009 (Cth) and seeks a declaration that its Victorian No 1 Branch has ceased to function effectively, and that there are no effective means under the rules of the Union to enable it to function effectively.
3. The Union's application to amend its concise statement, supported by an affidavit of Geoffrey Borenstein affirmed 17 April 2025, seeks the following three amendments:

(1) An amendment to the concise statement dated 10 September 2024 and the proposed scheme of administration annexed to the concise statement to now seek the appointment of Mr Charlie Donnelly as the administrator. Mr Donnelly is presently the interim administrator of the Branch.

(2) An amendment to the proposed scheme to align the maximum period of administration (subject to any further period of administration ordered by the Court) with the completion of the quadrennial elections provided for by rule 23A of the Union's rules.

(3) An amendment to the concise statement to insert paragraph 21A which sets out a number of matters which the Union says are relevant and have arisen since it filed the concise statement on 10 September 2024.

The amendments sought to the originating application are a consequence of the amendments to the concise statement.

1. In relation to the third amendment above, the Union deposes (by the Geoffrey Borenstein affidavit) that:

(a) Whilst the first and second amendments were foreshadowed at a case management hearing held 4 April 2025, the third is an additional amendment not foreshadowed at that time.

(b) It is included to update and regularise the initiating documents to reflect the matters the subject of the two interlocutory applications made in 2024 after this proceeding had been commenced, and after the Court had determined the Union's first application for interlocutory relief contained in its originating application.

(c) One of those matters (referred to immediately above) was the Court's appointment of Mr Donnelly as the interim administrator as a result of the Union's third interlocutory application seeking to preserve the position of the Branch and the Union pending final determination. That development is also reflected in the amendment seeking his appointment as part of the final order for administration sought by the Union.

1. The Union also contends that the matters contained in the proposed amending paragraph 21A are the subject of affidavit evidence filed in January 2025 pursuant to orders of the Court. That affidavit evidence is intended to be tendered at the hearing.
2. Ms Asmar, the first respondent, who appeared at the hearing of the Union's interlocutory application, does not oppose the first two amendments, but opposes the third. Mr Eden, the third respondent, who also appeared at the hearing of the interlocutory application, does not oppose any of the amendments and says further that they are not necessary. None of the other respondents appeared or made submissions on the Union's interlocutory application.
3. At the hearing of the interlocutory application, and in response to exchanges during the Union's submissions and submissions of Ms Asmar, the Union sought to further amend its proposed paragraph 21A. I adjourned the interlocutory application for a number of hours to enable the Union to amend that paragraph and provide to the Court and parties a further proposed version of paragraph 21A. The Union's application to amend proceeded on the basis of the amended paragraph 21A provided to the respondents and the Court that day, 22 April 2025.
4. For the reasons and in the circumstances set out below, I grant the Union leave to amend its concise statement in each of the three ways described above.

1. There was no dispute between the parties as to the applicable considerations in granting leave to amend the concise statement. There was, however, some dispute between the parties as to the nature and operation of the concise statement.
2. In Colbung on behalf of the Karratjibbin People v State of Western Australia (No 2) [2023] FCA 1449, O'Bryan J considered an application to amend a concise statement (in the context of a native title determination application). At [52] his Honour explained:

The trial of the separate questions has been conducted on the basis of concise statements that have been filed by each participating party. As stated in the Court's Central Practice Note, the purpose of a concise statement is to enable each party to bring to the attention of the other parties and the Court the key issues and the key facts at the heart of the dispute, as well as the essential relief sought from the Court. The concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, and is typically drafted in a narrative form.

1. After addressing a number of authorities on the nature of concise statements, including Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121, 287 FCR 388 which is considered further below, his Honour explained (at [54]) that to ensure procedural fairness, it remains necessary for the Court to assess whether and to what extent the concise statement, read with other documents filed in the case (including evidence), has defined the issue to be determined with sufficient clarity to enable the parties to understand and have the opportunity to meet the case brought by each other party. His Honour then said:

The Court's discretionary power to allow a party to amend its concise statement is guided by the overarching purpose of civil litigation stated in s 37M of the FCA Act and discussion of those principles in the cases, including particularly Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) (in the context of analogous provisions in the rules of the Supreme Court of the Australian Capital Territory). As explained by the plurality in Aon (Gummow, Hayne, Crennan, Kiefel and Bell JJ), the just resolution of the proceedings remains the paramount consideration, but a just resolution requires consideration of other factors including particularly the minimisation of delay and expense (at [98]). In exercising the discretion to allow amendment, the plurality in Aon stated (at [102]) that relevant considerations include:

(a) the nature and importance of the amendment;

(b) the explanation for the failure to include the matter at the outset; and

(c) the effect of the amendment on other parties and whether and in what manner any prejudice can be remedied.

1. As to the nature and purpose of a concise statement, both parties relied on Allianz Australia, where McKerracher and Colvin JJ relevantly explained (at [140]) that the purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and the relief sought from the Court before any detailed pleadings; it is a different form of document directed to exposing the real nature of the dispute where the use of a brief narrative form is encouraged where appropriate.
2. Ms Asmar drew attention to Allianz Australia at [149] where McKerracher and Colvin JJ explained that: if a claim that is at the heart of the case that a party seeks to advance at the final hearing is not to be found in the concise statement then there will need to be an application for leave to amend that will be dealt with in accordance with the established procedural law as to late amendments to alter a case. The Union likewise drew attention to that paragraph but where their Honours explained: however, where the nature of a claim is broadly disclosed by the concise statement, it is fundamental to the new approach of case management that a party cannot sit by passively and insist upon some strict curtailment of the case that may be run by reference to pleading rules.
3. The Union additionally drew the Court's attention to the decision of Horan J in Commissioner of NDIS Quality and Safeguards Commission v Irabina Autism Services (In Liq) (No 2) [2025] FCA 238 at [36] - [39]. At [37] his Honour explained the nature of a concise statement consistent with Allianz Australia and the Court's Central Practice Note. At [39] his Honour explained:

While a concise statement is different from a pleading, it still performs part of the same role of disclosing to another party the case to be made against them. In a concise statement, such disclosure will usually be broader and less comprehensive than in a conventional pleading, so that "other documents and case management techniques might be called upon to complete the picture": NAB (No 2) at [26], [28] (Derrington J); see also ASIC v Westpac Securities Administration Ltd [2019] FCAFC 187; (2019) 272 FCR 170 at [185] (Allsop CJ); Delor Vue Apartments at [141], [144] (McKerracher and Colvin JJ). In addition to the provision of particulars, this might encompass the delivery of affidavits or witness statements, statements of issues, or written outlines of opening submissions. As McKerracher and Colvin JJ stated in Delor Vue Apartments at [144], "[t]he concise statement process recognises that issues may be refined as the conduct of the interlocutory stages progress and that there are often benefits to be obtained in bespoke case management orders".

The Union drew attention to his Honour's explanation of the supplementation of the concise statement by the delivery of affidavits and outlines.

1. The parties also properly accepted that I should have regard to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Section 37M relevantly provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law; and as quickly, inexpensively and efficiently as possible. Section 37N provides that the parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with that overarching purpose.

1. The applicant's arguments were, in summary: First, the key issue, principally, is whether the Branch has ceased to function effectively. That issue is properly outlined in the concise statement. Second, the details of that key issue have been supplemented, principally and relevantly here, by the filing of its affidavits in January this year. It says, by reliance on Allianz Australia and the Commissioner of the NDIS, that such supplementation of the concise statement is permissible and appropriate. Third, given the question in s 323 is relevantly whether the Branch has ceased to function effectively, it must be proper and necessary for the Court to determine that question by reference to events including those that have occurred since 10 September 2024. It says the relevant time to answer the question in s 323 is the time of the hearing. To do otherwise would not be in the interests of justice and would not enable the Court to determine the real issues in dispute. Fourth, Ms Asmar has not, and will not, suffer any prejudice because she has been on notice of the material relied on to support the proposed paragraph 21A since January 2025. Fifth, the revised form of paragraph 21A (provided to the Court and the parties during the interlocutory application on 22 April 2025) limits the relevant matters to seven matters (at 21A(a) to (g)) all of which are referenced to, and supported by, the affidavit material filed in January 2025.
2. Mr Eden, the third respondent, said: First, he does not oppose the amendments. Second, the amendments are not necessary because the affidavit material filed by the applicant and by him in January of 2025 puts Ms Asmar on notice of the case she has to meet. Third, no objection was taken to the affidavit material and no objection was taken in the interlocutory applications heard on 20 September 2024, 2 December 2024 and 18 and 23 December 2024 which relied on events subsequent to 10 September 2024.
3. Ms Asmar accepts that conduct after 10 September 2024 can be relevant to my consideration of the applicable test under s 323 of the Act. However, she says the events the subject of the amendment are not sufficiently identified by the concise statement such that they can be augmented by the affidavits filed January 2025. Ms Asmar also submitted that she will suffer prejudice if the interlocutory application is granted in respect of paragraph 21A, where she has only responded to parts of those affidavits that go directly to the concise statement as it presently exists.
4. I accept, as the Union submits, that the relevant time for me to assess the question for the purpose of s 323 of the Act must be at the time of the hearing. I accept, as Ms Asmar concedes, events occurring after the filing of the concise statement can be relevant to that question. In those circumstances, and subject to issues of prejudice, it would not be in the interest of justice to refuse leave to the applicant to amend. It would not ensure the real issues are before the Court. It would not ensure a just resolution of the proceedings.
5. Accepting the relevance of the matters in the proposed 21A to the question in s 323 of the Act, I find that the amendments are sufficiently important. They go to matters occurring after 10 September 2024 (the date of filing of the originating application and concise statement) with the potential to directly affect whether the Branch has ceased to function effectively.
6. As to questions of prejudice and the effect of the amendments on Ms Asmar, I accept that Ms Asmar was on notice of the matters the subject of the amendment because they are contained in the affidavit material filed in January 2025. Ms Asmar made a forensic decision not to respond to that material in the affidavits filed by her between 14 and 17 April 2025. It is that decision that gave rise to the principal prejudice to which she now points; namely that her affidavit material presently filed does not address the matters the subject of the proposed paragraph 21A.
7. Accepting, for present purposes only, that it was appropriate for Ms Asmar to adopt a narrow approach to the concise statement read with the January 2025 affidavit material relied on by the applicant, any prejudice can be overcome by providing some additional time to Ms Asmar to provide further affidavit material once leave is granted for the proposed amendment. Ms Asmar accepts that some additional time to do so would "materially reduce the prejudice" to her.
8. As I have noted with the parties, the Branch the subject of this application is in interim administration. It is important and appropriate that the application be heard as soon as practicable. I propose to provide a short amount of time to Ms Asmar, and any of the other respondents, to provide any additional affidavit material in response to paragraph 21A of the amended concise statement.
9. As a result, the hearing will commence one week later than originally listed. It will commence on 5 May 2025. I will then allocate the further week of 12 May 2025 for the conclusion of the hearing. Ten days of hearing will be allocated in place of the original eight days, allowing for the canvassing of the additional matters.
10. In exchanges about the possibility of those proposed hearing dates, Ms Asmar explained that her instructors and Senior Counsel are available for that further week of 12 May 2025, but that her junior counsel is not available. She submitted that for that reason I should not proceed in that way. Weighing the interests of all parties and the importance of the matter, I do not consider that is a basis not to proceed with the week of 12 May 2025 as the second week of the trial.
11. Considering all of the above matters, and ss 37M of the Federal Court Act, it is in interests of justice to allow the amendments to the concise statement, and consequential orders to the originating application, sought by the Union. I will make orders reflecting the matters above and amending the timetabling orders to allow for the revised hearing dates.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.