Fitness Systems United Pty Ltd v Goldberg [2020] FCA 638

Fitness Systems United Pty Ltd v Goldberg [2020] FCA 638

An extension of time was appropriate because Mr Goldberg gave an adequate explanation for the late filing and Fitness Systems did not identify prejudice or other factors against an extension. However, Mr Goldberg's failure to file within time, filing of a defective cross-claim, inadequate response after those defects were identified, and inadequate supporting evidence for the extension application amounted to unreasonable acts or omissions causing Fitness Systems to incur the costs of the interlocutory applications, justifying a costs order under s 570(2)(b). The extensive amended defence was not adequately explained, so Fitness Systems was also entitled to any costs thrown away by reason...

Jurisdiction
Australia
Judgment Date
10 March 2020
Procedural Posture
Proceeding by Plaintiff Against Former Director With Fair Work Act 2009 (cth) Cross Claim Alleging Wrongful Termination; Interlocutory Applications / Interlocutory Applications for Summary Judgment or Strike Out, Extension of Time, Production of Documents, Leave to Amend, and Costs
Outcome
Extension of time granted; leave to amend cross-claim granted; production order made; interlocutory applications otherwise dismissed; defendant/cross-claimant ordered to pay specified costs.
Legal Topics
['general Protections Court Application' 'extension of Time Under S 370 of the Fair Work Act 2009 (cth)' 'costs Under S 570 of the Fair Work Act 2009 (cth)' 'cross Claim Defects and Deficiencies' 'production of Accounting Records' 'amended Defence Costs Thrown Away']
['practice and Procedure' 'employment Law' 'costs' 'corporations and Corporate Insolvency'] ['general Protections Court Application' 'extension of Time Under S 370 of the Fair Work Act 2009 (cth)' 'costs Under S 570 of the Fair Work Act 2009 (cth)' 'cross Claim Defects and Deficiencies' 'production of Accounting Records' 'amended Defence Costs Thrown Away']

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Procedural Posture

Proceeding by Plaintiff Against Former Director With Fair Work Act 2009 (cth) Cross Claim Alleging Wrongful Termination; Interlocutory Applications / Interlocutory Applications for Summary Judgment or Strike Out, Extension of Time, Production of Documents, Leave to Amend, and Costs

Legal Issues

  1. 1 ['Whether the defendant/cross-claimant should be granted an extension of time under s 370(a)(ii) of the Fair Work Act 2009 (Cth) to commence a general protections court application by cross-claim.' 'Whether the defendant/cross-claimant should have leave to file an amended notice of cross-claim and statement of cross-claim.' "Whether the defendant/cross-claimant's unreasonable acts or omissions caused the plaintiff/cross-defendant to incur costs so as to justify a costs order under s 570(2)(b) of the Fair Work Act 2009 (Cth)." 'Whether the defendant/cross-claimant should pay costs thrown away by reason of filing an amended defence.']

Ratio Decidendi

An extension of time was appropriate because Mr Goldberg gave an adequate explanation for the late filing and Fitness Systems did not identify prejudice or other factors against an extension. However, Mr Goldberg's failure to file within time, filing of a defective cross-claim, inadequate response after those defects were identified, and inadequate supporting evidence for the extension application amounted to unreasonable acts or omissions causing Fitness Systems to incur the costs of the interlocutory applications, justifying a costs order under s 570(2)(b). The extensive amended defence was not adequately explained, so Fitness Systems was also entitled to any costs thrown away by reason...

Court Disposition

Extension of time granted; leave to amend cross-claim granted; production order made; interlocutory applications otherwise dismissed; defendant/cross-claimant ordered to pay specified costs.

Orders

  • ['Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), the time for the defendant/cross-claimant to commence a general protections court application under that Act is extended to 17 September 2019, with effect nunc pro tunc.' 'Within 21 days of the making of these orders, the plaintiff/cross-defendant produce...