FEDERAL COURT OF AUSTRALIA Ermel v Duluxgroup (Australia) Pty Ltd [2014] FCA 1399 Citation: Ermel v Duluxgroup (Australia) Pty Ltd [2014] FCA 1399 Parties: STEVEN ERMEL v DULUXGROUP (AUSTRALIA) PTY LTD File number: VID 792 of 2013 Judge: BROMBERG J Date of judgment: 16 December 2014 Catchwords: PRACTICE AND PROCEDURE – whether hearing of trial should be vacated to facilitate amendment of pleadings to raise new issues and additional material facts – lack of adequate explanation, substantial delay, prejudice to respondent and case management considerations discussed – application rejected. Legislation: Fair Work Act 2009 (Cth) ss 340(1)(a), 341, 352, 542, 570 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 16 December 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr C Gunst QC with Mr R Millar Solicitor for the Applicant: McDonald Murholme Counsel for the Respondent: Mr J Tracey Solicitor for the Respondent: HR+WorkLaw IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 792 of 2013 BETWEEN: STEVEN ERMEL Applicant AND: DULUXGROUP (AUSTRALIA) PTY LTD Respondent JUDGE: BROMBERG J DATE OF ORDER: 16 December 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's application that the trial be vacated is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 792 of 2013 BETWEEN: STEVEN ERMEL Applicant AND: DULUXGROUP (AUSTRALIA) PTY LTD Respondent JUDGE: BROMBERG J DATE: 16 december 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This proceeding was instituted on 5 August 2013. A Statement of Claim was filed on 6 August 2013. Pleadings closed in late September of 2013. By about February of 2014, all of the steps identified as necessary to be done to have the proceeding ready for trial had been or had substantially been done, including discovery, the exchange of affidavits and a mediation. 2 On 30 April 2014, the Court listed the proceeding for a three day trial commencing this morning. 3 As the applicant's counsel opened the applicant's case, it became apparent that the applicant was now seeking to agitate new claims and rely upon a wide range of material facts not raised by or referred to in the applicant's Statement of Claim. 4 The Statement of Claim pleads various breaches of s 340(1)(a) of the Fair Work Act 2009 (Cth) (the Act). Broadly speaking, the Statement of Claim alleges that the applicant was dismissed from his employment and that adverse action was taken against him by the respondent for reasons including that he had exercised the following workplace rights within the meaning of s 341 of the Act: (1) the right to a working environment that was safe and without risk to his health; (2) a right to make a complaint; and (3) a right to take paid personal leave. 5 The Statement of Claim also pleaded a breach of s 352 of the Act. It alleged that the applicant was dismissed because he was temporarily absent from work because of an illness. 6 In relation to the making of a complaint and that part of the applicant's case which relied upon his asserted right to a safe working environment, the Statement of Claim relied upon a single instance of conduct described at [11]. That paragraph refers to a letter sent to the respondent by the applicant's solicitors on 31 May 2013 which, at least on its face, appears to constitute the making of a complaint. 7 It is clear from the opening given, that the applicant now wants to rely on additional conduct. That conduct includes the making of repeated oral complaints in the early months of 2013 as well as various alleged instances of what is said to be bullying behaviour in that period. Those claims and the material facts which would be necessary to support them, needed to be pleaded, so that the respondent knew the case it was called upon to meet at trial. That was not done. 8 Of larger significance to the issue I now need to determine is the fact that the applicant now wants to agitate a new case based upon asserted entitlements to workplace rights which are not referred to or even remotely suggested by the Statement of Claim. As the opening indicated, the applicant now seeks to agitate a new case based upon what he asserts to be his entitlements to "safety net contractual entitlements" the subject of s 542 of the Act. There were two such entitlements referred to in the opening. It is not necessary that I should detail now the basis said to support these new allegations. It is sufficient to say that the matters now sought to be agitated raise complex issues and will no doubt require detailed consideration by the respondent and most likely, an evidentiary response. 9 As the applicant acknowledged through his counsel, the respondent was given no notice whatsoever that the new claims and additional facts not dealt with by the Statement of Claim would be agitated for at trial. 10 Recognising that leave to amend the Statement of Claim is required, and that the inevitable consequence of the need to make and deal with that application is that the trial must be vacated, the applicant has sought that the trial be vacated so that an application to amend his Statement of Claim can be made. 11 I have decided to refuse that application for the following reasons. 12 As the majority said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [112]: A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. 13 As the Court observed in that case, the fact of substantial delay, wasted costs and the concerns of case management will assume importance when a Court considers a proposed amendment to the pleadings which will result in the vacation or the delay of a trial. Prejudice to the respondent is, of course, also a key consideration. 14 If this trial is vacated, there will be substantial delay. It is unlikely that the matter will be able to be listed prior to September of 2015. There is prejudice in a delay of that kind to all concerned including because, given the passing of time, the quality of evidence which will be presented to the Court may be compromised. 15 Further, some of the costs involved in preparing for the trial and the entirety of at least today's costs of the hearing will be wasted if the trial is vacated. It may well be that through no fault of its own, the costs thrown away by the respondent will not be recoverable. That may be the ultimate effect of s 570 of the Act. In the absence of the applicant offering to pay the respondent's costs, and in circumstances where the applicant has indicated that it will oppose a costs order in favour of the respondent, I can only presume that the respondent is at risk on the question of costs and there is, at least in that respect, a significant potential prejudice to it should the trial be vacated. 16 The Court was informed that the reason that no application to amend the applicant's pleading at an earlier time was made was because counsel had been retained at a late stage. I do not consider that to be a reasonable explanation and certainly not a justification for the lateness in which the applicant seeks to bring his application to amend his pleading. This trial was listed more than six months ago on the basis that the proceeding was ready for trial. If the applicant failed, through his legal advisers, to ensure that was so, that is a detriment that should be borne by the applicant and his advisers. It is not a matter which, in my view, provides any justification for the trial being vacated. Litigants should not be encouraged to come to trial with their case half baked in the hope that the Court will either ignore an inadequate pleading or grant a vacation of the trial in order that the pleading can be rectified. 17 There are also case management considerations that I need to take into account. When this matter was listed for hearing, the Court was precluded from making the hearing dates allocated available to other litigants. It the days listed for this week are now vacated, those days will not be available to accommodate other demands upon the Court to list matters for trial. That involves inefficiencies and a waste of court resources. The High Court in Aon made it clear that case management considerations and the proper use of court resources, including the interests of litigants generally in the efficient workings of the court, are germane to the exercise of my discretion in an application such as this. I refer to and rely in particular upon the judgment of French CJ at [5], [6], [30] and [35] and the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92]-[103] and also at [111]-[113]. The case management considerations I have referred to weigh against the vacation of the hearing. 18 For those reasons, I have come to the view that the just resolution of the proceeding requires that the trial proceed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 18 December 2014