FEDERAL COURT OF AUSTRALIA Baird v State of Queensland [2003] FCA 1582 JAMES STANLEY BAIRD, MARIE CREEK, FRANK TAYLEY, HENRY WALKER, HENRY DEERAL, EDGAR IVAN GIBSON, ANITA KAREN GORDON AND ELLA WOIBO v STATE OF QUEENSLAND AND LUTHERAN CHURCH OF AUSTRALIA INC. Q 91 OF 2003 DOWSETT J 5 DECEMBER 2003 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 91 OF 2003 BETWEEN: JAMES STANLEY BAIRD FIRST APPLICANT MARIE CREEK SECOND APPLICANT FRANK TAYLEY THIRD APPLICANT HENRY WALKER FOURTH APPLICANT HENRY DEERAL FIFTH APPLICANT EDGAR IVAN GIBSON SIXTH APPLICANT ANITA KAREN GORDON SEVENTH APPLICANT ELLA WOIBO EIGHTH APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT LUTHERAN CHURCH OF AUSTRALIA INC. SECOND RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 5 DECEMBER 2003 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicants pay the costs of the first and second respondents thrown away by the adjournment, which costs include the appearances in Cairns on 1 December 2003. 2. The applicants pay the costs of the first and second respondents of and incidental to their appearances today. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 91 OF 2003 BETWEEN: JAMES STANLEY BAIRD FIRST APPLICANT MARIE CREEK SECOND APPLICANT FRANK TAYLEY THIRD APPLICANT HENRY WALKER FOURTH APPLICANT HENRY DEERAL FIFTH APPLICANT EDGAR IVAN GIBSON SIXTH APPLICANT ANITA KAREN GORDON SEVENTH APPLICANT ELLA WOIBO EIGHTH APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT LUTHERAN CHURCH OF AUSTRALIA INC. SECOND RESPONDENT JUDGE: DOWSETT J DATE: 5 DECEMBER 2003 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This matter was set down for trial in Cairns this week. In the course of last week the applicants indicated that they wished to amend the statement of claim. As the matter was raised at such a late stage it was not reasonably practicable to list it for hearing before Monday of this week. As it was clear that the amendment or an amendment to similar effect should be allowed, and as the first respondent indicated that it would not be able to proceed in the face of such amendment, the trial was adjourned. The question remaining is how to deal with costs thrown away by the adjournment. 2 The effect of the proposed amendment is to add an alternative basis for the claim against the first respondent. The statement of claim originally depended upon an assertion that the first respondent was the employer of the various applicants. The amendment raises an alternative basis for liability dependent upon the allegation that the first respondent provided funds to the second respondent, earmarked for payment of wages to the various applicants. That this was possibly the case was known to the applicants by August of this year when the second respondent so alleged. If this alternative basis was to be raised in the proceedings, it ought to have been at some stage before last week. In those circumstances I am of the view that the adjournment of the trial was substantially as a result of the default of the applicants and that they ought pay the costs thrown away by the adjournment, which costs include the appearances in Cairns on 1 December 2003. The applicants should also pay the costs of the first and second respondents of and incidental to their appearances today. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 January 2004 Counsel for the Applicants: Mr D O'Gorman Solicitor for the First, Second, Third and Fourth Applicants: Robert Bax & Associates Solicitor for the Fifth, Sixth, Seventh and Eighth Applicants: V J Butler & Associates Counsel for the First Respondent: Mr J Murdoch SC Mr C Murdoch Solicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr A Duffy Solicitor for the Second Respondent: Bain Gasteen Date of Hearing: 5 December 2003 Date of Judgment: 5 December 2003