Swissport Australia Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union

1. The applicant have leave to amend the originating application in terms of proposed orders 1 to 4 of Exhibit A.
2. The applicant have leave to amend the name of the applicant to "Swissport Australia Pty Ltd". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The trial of this proceeding has been set down for two days commencing today, 24 July 2018. The applicant has today applied for leave to file an amended originating application. 2 The present originating application seeks two declaratory orders. Both depend upon the proper construction of cl 28.3 and other clauses of the Airline Operations - Ground Staff Award 2010 (the Award). 3 The proposed amended originating application seeks eight declaratory orders, the first four of which are reformulations of the declarations already sought. The fifth to eighth proposed declaratory orders rely upon a new argument put as an alternative to the applicant's primary argument. The new argument is to the effect that the applicant's employees are not "required" to work more than one shift in each 24 hours. The new argument involves both questions of construction of cl 28.3 of the Award and factual issues. 4 The respondent was notified of the proposed amended originating application and of the new argument on the afternoon of Friday, 20 July 2018. The respondent opposes the amendments to the originating application insofar as they raise the new argument. 5 The respondent submits that the late notification has deprived it of the opportunity to consider what evidence it would wish to put on in relation to the new argument. It submits that no adequate explanation has been provided for the applicant's delay. It points out that final directions for the provision of affidavits and submissions were made on 11 May 2018, some two-and-a-half months ago, but were not complied with in relation to the new argument. The respondent does not seek any adjournment of the hearing. 6 The applicant relies on rr 8.21(1)(b) and (g) of the Federal Court Rules 2011 (Cth). In particular, it submits that the new argument arises out of the same facts as are set out in affidavits already filed. It submits that if the amendments are not permitted, it will be prejudiced because it will be left in a position where the dispute is not dealt with fully. It submits that both parties have already filed affidavits relevant to the factual substratum underpinning the new argument. 7 The applicant submits that the new argument only became apparent after it received an affidavit from the respondent some three weeks ago. The applicant's lawyers then formed the view that there was an alternative argument available and sought instructions last week. It submits that the argument largely involves legal issues and that the respondent has not shown that it will suffer any prejudice if the amendments are permitted in full. 8 The application for leave to amend has been brought under r 8.21 of the Federal Court Rules which provides relevantly: 8.21 Amendment generally (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: … (b) to avoid the multiplicity of proceedings; or … (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. … 9 I accept that the applicant has demonstrated a basis under r 8.21 for the amendment of the originating application. The respondent does not oppose the amendment to substitute the first to fourth proposed declaratory orders. I also accept that allowing the amendment to add the first to the fourth proposed declaratory orders would have the potential to avoid a multiplicity of proceedings and that the amendments arise out of the same substratum of facts as those already the subject of affidavits filed in the proceeding. 10 However, the difficulty with allowing the amendments to include the proposed fifth to eighth declaratory orders is the lateness of the application. I am not satisfied that the applicant has given an adequate reason for the delay. The explanation seems to be that the new argument was not thought of earlier. Orders for the filing of affidavits were made on 26 February 2018 and varied on 11 May 2018. There was adequate time for the argument to have been conceived and notified to the respondent much earlier than last Friday. 11 I am satisfied that the respondent has demonstrated that it will be prejudiced if the amendment is allowed. While there is relevant affidavit evidence put on by both sides, there is a significant factual issue involved, namely, whether the applicant "requires" employees to work more than one shift in each 24 hours. I accept that the applicant needs more time than it has been provided with to consider whether it requires further affidavits and to obtain any such affidavits. That is particularly so in circumstances where the new argument is not mentioned in the respondent's written outline of submissions and the precise content of the argument is not yet known. 12 In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [17], the High Court made it plain that the objects set out in provisions such as s 37M of the Federal Court of Australia Act 1976 (Cth) must be considered. Those objects include the just determination of proceedings before the Court. Procedural fairness requires that each party be given a reasonable opportunity to present its case, including by receiving reasonable notice of the case that is to be run by its opponent. In my opinion, it would be procedurally unfair to allow the applicant to run its new argument at such short notice. 13 The applicant should be granted leave to amend the originating application by substituting the first to fourth proposed orders but should be refused leave to amend by adding the fifth to ninth proposed orders. I will make an order that the applicant have leave to amend the originating application in terms of the proposed amendments to orders 1 to 4 of Exhibit A. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.