Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd

[2010] FMCA 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION v QANTAS AIRWAYS LTD & ANOR [2010] FMCA 1009

PRACTICE AND PROCEDURE – Application to amend claim in closing submissions.

Fair Work Act2009 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Queensland v J L Holdings (1997) 189 CLR 146

Applicant: AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

First Respondent: QANTAS AIRWAYS LTD

Second Respondent: PETER CAWTHORNE

File Number: SYG 870 of 2010

Judgment of: Raphael FM

Hearing date: 9 December 2010

Date of Last Submission: 9 December 2010

Delivered at: Sydney

Delivered on: 9 December 2010

REPRESENTATION

Counsel for the Applicant: Mr A Slevin

Solicitors for the Applicant: Maurice Blackburn

Counsel for the Respondents: Mr R Kenzie QC & Mr S Prince

Solicitors for the Respondents: Blake Dawson

ORDERS

1. Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 870 of 2010

AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

Applicant

And

QANTAS AIRWAYS LTD

First Respondent

PETER CAWTHORNE

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks in his oral submissions in reply the Court’s leave to amend his pleadings so that in what is described as allegation 1 there is added the complaint that his position was altered to his prejudice.  This is a separate complaint to a complaint of injury in employment under the Fair Work Act2009 (Cth) (the “FWA”) with which I am currently dealing. The application is resisted by the respondents on the grounds that it goes outside the pleadings. Although it is fair to say that they have dealt with it in their submissions, at least to some extent,

   
   

   Mr Kenzie QC rightly reminds the Court that in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court has made it clear that amendments of this type are not to be lightly granted and that the previous position as set out in Queensland v J L Holdings (1997) 189 CLR 146 is no longer good law. Since the Aon decision, there have been other decisions of the Federal Court in which these points have been reinforced.

2. This is a case in which the Court is asked to make declarations that an employer has breached civil penalty provisions of the FWA and, if the Court made those declarations, then penalties will be sought. Civil penalties of this type are not offences but they have a quasi-criminal character and they are treated very seriously by this Court and others which are required to enforce the Act. I am of the view that where particular breaches are pleaded, then a defendant is entitled to assume it knows the matters that it has to respond to and, even if it becomes evident as a case progresses that the applicant is stepping outside the pleaded cause, there should be no obligation on the defendant to respond unless some amendment or request for an amendment has been made.

3. In the instant case, Mr Kenzie QC, who appears for the respondent, finished his case by tendering a request for further and better particulars and responses (Exhibit C) and I think he made it clear, certainly clear enough to me, that he was proceeding on the basis that these were the matters that had been pleaded against his client and the matters that he intended to respond to.  If the applicant had any doubts about it at that stage, then was the time to seek clarification and possibly amendment, although one cannot say what the result of such an application would have been.  To my mind, it is now too late to alter the basis of the claim to add an additional complaint as is sought, even if it was hinted at during the course of the proceedings.  The difficulty is that the respondent would, at the very least, have to pore through the transcript to work out whether or not the matter had been properly dealt with in questioning and cross-examination. In respect of a case that has already taken some days, I do not think a party should be required to do that.  It is for those reasons I decline to grant the amendment.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  20 December 2010