Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd [2016] FCA 602

Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd [2016] FCA 602

Leave to further amend was granted because any limited prejudice to ADCO from the late amendments concerning Mr Kitto could be ameliorated by granting ADCO leave to adduce further oral evidence from Mr Kitto and Mr Hawkins, the Robina Project amendments were reactive to the defence and best dealt with at trial, and the asserted insufficiency of the adverse consequence pleading was not so compelling as to justify refusing amendment before trial.

Jurisdiction
Australia
Judgment Date
25 May 2016
Procedural Posture
Practice and Procedure; Application for Leave to File a Further Amended Statement of Claim / Interlocutory Application Before Trial
Outcome
Applicant granted leave to file a further amended statement of claim; respondent granted leave to adduce further oral evidence; costs reserved for the trial judge.
Legal Topics
['late Amendment of Statement of Claim' 'case Management' 'procedural Fairness' 'fair Work Act Contraventions' 'costs Thrown Away']
['practice and Procedure' 'industrial Law'] ['late Amendment of Statement of Claim' 'case Management' 'procedural Fairness' 'fair Work Act Contraventions' 'costs Thrown Away']

Case Brief

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Procedural Posture

Practice and Procedure; Application for Leave to File a Further Amended Statement of Claim / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether the applicant should be granted leave, shortly before trial, to file a further amended statement of claim.' 'Whether proposed amendments concerning Mr Kitto would cause procedural unfairness or prejudice to ADCO in the conduct of its defence.' 'Whether proposed amendments concerning the Robina Project should be allowed.' 'Whether alleged adverse consequences from differential treatment disclosed a sufficient case under s 354 of the Fair Work Act 2009 (Cth) to permit amendment.' 'Whether costs thrown away by amendments, including abandonment of Pindara Hospital project allegations, should be reserved for the trial judge.']

Ratio Decidendi

Leave to further amend was granted because any limited prejudice to ADCO from the late amendments concerning Mr Kitto could be ameliorated by granting ADCO leave to adduce further oral evidence from Mr Kitto and Mr Hawkins, the Robina Project amendments were reactive to the defence and best dealt with at trial, and the asserted insufficiency of the adverse consequence pleading was not so compelling as to justify refusing amendment before trial.

Court Disposition

Applicant granted leave to file a further amended statement of claim; respondent granted leave to adduce further oral evidence; costs reserved for the trial judge.

Orders

  • ['The applicant is granted leave to file a further amended statement of claim in the form of attachment SLB2-1 to the affidavit of Samantha Louise Betzien filed 20 May 2016.' 'The further amended statement of claim is to be filed with the Court and a copy served on the respondent by 4.00 pm on Thursday 26 May 2016.'...