FEDERAL COURT OF AUSTRALIA

Tomvald v Toll Transport Pty Ltd (No 2) [2019] FCA 510

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to file and serve by 4.00 pm on 23 April 2019:

(a)    an amended concise statement in the terms of the draft amended concise statement furnished to the Court on 5 December 2018, with any minor corrections as may be required; and

(b)    an amended originating application to reflect the terms of the amended concise statement.

2.    The parties furnish, by email to the associates to Justice Bromwich, draft agreed or competing procedural orders by 4.00 pm on 26 April 2019.

3.    The proceeding be listed for case management at 9.00 am on 3 May 2019, unless all necessary procedural orders are able to be made in chambers before then.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Mr Joshua Tomvald, is a freight handler employed by the first respondent, Toll Transport Pty Ltd. The second respondent, Mr Guy Barnard, was, until relatively recently, one of Toll’s operations managers. This is the second proceeding brought by Mr Tomvald against Toll arising from his employment. The present issues for determination concern whether he needs leave to file an amended concise statement, and if so, whether leave should be granted.

2    On 21 February 2018, the first and second respondents filed concise statements in reply to Mr Tomvald’s existing concise statement. Pleadings had therefore closed, subject to the challenge next referred to.

3    On 29 June 2018, I delivered judgment in response to an interlocutory summary dismissal and strike-out application brought by Toll: Tomvald v Toll Transport Pty Ltd [2018] FCA 969. Summary dismissal was refused, but an important part of Mr Tomvald’s claim was struck out upon the basis that certain aspects of the issues for which relief was sought had already been determined adversely to him by Flick J’s judgment and reasons in the first proceeding, Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, delivered on 12 October 2017, with orders made by his Honour on 27 October 2017. Soon after those orders were made, Mr Tomvald became a permanent employee of Toll.

4    The balance of the existing concise statement has been the subject of a further dispute as to a notice to produce pay records of Toll to Mr Tomvald. Records were produced over a period up to 24 October 2018.

5    On 5 December 2018, Mr Tomvald served on Toll, and furnished to the Court, a proposed amended concise statement. Toll opposed that amended concise statement being filed. On 18 January 2019, I made orders for the provision of competing submissions on that issue, which were duly provided, the last being submissions in reply by Mr Tomvald on 15 February 2019. The parties had been informed by email from my associate that I would consider whether to have an oral hearing, or decide the issue on the papers, depending on the content of the submissions and the views of the parties. Mr Tomvald sought to have the issue determined on the papers, which Toll consented to. I subsequently decided that I have sufficient material to determine the issue on the papers.

Scope of the proposed further amendments to the concise statement

6    The substance of the complaint that Mr Tomvald now wishes to advance is, from his perspective, merely an enlargement of his existing claim, based on events arising since Flick J’s judgment, all of which could be the subject of a new proceeding if the amendment sought is not permitted to take place. This is subject to the caveat of the applicant being released from his implied undertaking to rely on any evidence gathered in the current proceeding. Toll suggests that such leave would not be granted; I disagree and am of the view that such leave would be likely to be forthcoming in all the circumstances. Toll characterises it as a new claim that could and should have been brought much earlier, suggesting that any new proceeding will be similarly objected to. I do not attach much weight to that threat.

7    The proposed amended concise statement contains some tidying up and updating, and the removal of the parts struck out by my prior orders, which I do not take to be opposed. The originating application is not formally sought to be changed, other than to reflect the limited strike-out that was ordered consequent upon my prior judgment, but it seems some formal changes will be needed, such as to refer to an enterprise agreement, referred to below as the 2017 agreement.

8    The substantial dispute concerns the following asserted events, by way of amendment or addition to the existing concise statement (at [7]-[18], new portions underlined):

7.    Between around 1 November 2017 and 29 November 2017:

(a)    Mr Barnard directed that Mr Tomvald begin work at 5am every day;

(a)(b)    each of the permanent full-time AM freight handlers at the Bungaribee depot other than Mr Tomvald began work at 4am or earlier; and

(b)(c)    some of the permanent part-time and casual AM freight handlers at the at the [sic] Bungaribee depot begin work at 4am or earlier;.

8.    Mr Barnard directed Mr Tomvald’s earnings were reduced as a result of Toll’s instruction that Mr Tomvald he begin work at 5am on every day but Monday.

9.    On 7 November 2017 Toll responded wrote to Mr Tomvald’s complaint by stating Tomvald and said that it had no operational requirement for a freight handler such as Mr Tomvald to commence work from the Bungarribee facility at 4:00am on Tuesdays to Fridays inclusive (the Operational Requirements Representation).

10.    The Operational Requirements Representation was knowingly false.

11.    In around mid-November Mr Tomvald wrote to the Fair Work Commission reviving a dispute previously notified in relation to his start time.

12.    On around 29 November 2018 Mr Tomvald’s start time was changed to 4am.

13.    Mr Tomvald’s start time was changed to 4am because he re-enlivened the dispute in the Fair Work Commission. Had Mr Tomvald not done so, his start time would not have been changed.

14.    On or around 1 March 2018 Mr Barnard decided that Mr Tomvald should not be permitted to work any later than 1pm on any shift.

15.    On 1 March 2018 Mr Tomvald’s supervisor Heath Parkin told Mr Tomvald that:

(a)    he was not to work later than 1pm on any shift (the Overtime Ban); and

(b)    Mr Barnard had decided that Mr Tomvald should not work later than 1pm.

16.    The two other permanent full-time employees in the “Unsorts” section in which Mr Tomvald works have not been prevented from working later than 1pm.

17.    Mr Tomvald’s earnings have been reduced by the Overtime Ban.

18.    Mr Tomvald’s average earnings over the period 29 October 2017 to 22 July 2018 were 25% lower than the average earnings of each [of] the two other permanent full-time employees in the “Unsorts” section.

I presume that the events described at [11]–[12] should refer to 2017.

9    The gravamen of Mr Tomvald’s complaint appears to concern when he is required to start and finish work relative to other employees, both permanent and casual, and the impact that this has had on his earning. All events relied upon are alleged to have commenced from early November 2017, soon after Flick J’s orders were made on 27 October 2017. As outlined in the applicant’s originating application, these additional events are sought to be relied upon to obtain:

(1)    declarations of breaches of ss 50 and s 340 of the Fair Work Act 2009 (Cth), including on the part of Mr Barnard as being involved in Toll’s alleged contraventions;

(2)    compensation for those breaches;

(3)    civil penalties (payable to him); and

(4)    orders as to the training of Toll’s managers based at the Bungaribee depot on its 2017-2020 enterprise agreement and the adverse action provisions of the Fair Work Act.

10    The alleged s 50 breaches relate to requirements imposed on Toll by the prior 2013-2017 enterprise agreement (2013 agreement), and in the present 2017-2020 enterprise agreement (2017 agreement), as to utilising permanent employees ahead of casual or part-time employees; and asserted false representations as to Toll not having an operational requirement to have him start work at 4.00 am. The adverse action claim turns on an assertion that the working hours allocations and restrictions arose from his re-assertion of work place rights to the Fair Work Commission reviving a dispute previously notified in relation to his start time.

11    Mr Tomvald links the asserted events with the relief sought, by which he replaces the former reliance on cl 21(e) of the 2013 enterprise agreement, with reliance on cl 17(b) of the 2013 agreement and cl 18 and cl 17(b) of the 2017 agreement. The changes do not need to be reproduced, but it is fair to say that they involve a substantial recasting of his case, involving in significant measure events that had taken place by the time that this proceeding commenced on 21 December 2017 and involving, in substance, an assertion that those events had continued since 15 December 2017 as breaches of the 2017-2020 agreement. The newly asserted overtime ban entirely postdates the commencement of this proceeding.

Submissions of the parties

Applicant’s submissions

12    Mr Tomvald submits that he is entitled, as of right, to amend his concise statement to introduce facts that have occurred from 21 December 2017 onwards, relying upon r 16.51(4) of the Federal Court Rules 2011. Rule 16.51 is titled “Amendment without needing the leave of the Court”, which provides that:

(1)    A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.

(2)    However, a party may not amend a pleading if the pleading has previously been amended in accordance with the leave of the Court.

(3)    A party may further amend a pleading at any time before the pleadings close if each other party consents to the amendment.

(4)    An amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started.

Note 1: The object of this rule is to ensure that all necessary amendments may be made to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.

Note 2: For when the pleadings close, see rule 16.12.

13    If r 16.51(4) is not applicable, then leave of the Court is required per r 16.53 of the Rules, which provides that:

Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.

14    Mr Tomvald notes that:

(1)    the overtime ban (at [14]-[18] of the proposed amended pleadings) is alleged to have commenced on or around 1 March 2018, some three months after the commencement of the proceeding (overtime ban); and

(2)    in respect of the alleged breaches of clauses 17(b) and 18 of the 2017 agreement (referred to above at [11]), the 2017 Agreement commenced to operate on 15 December 2017, only one week before proceedings were filed (the breaches alleged to have commenced on that date onwards).

15    If leave is required, Mr Tomvald submits that the pre-eminent factor in considering whether to grant leave to amend the concise statement is the desirability for the real issues between the parties to be properly identified and agitated, citing Servcorp Ltd v Nuclei Ltd [2011] FCA 1229 at [11].

16    Further factors relevant to the grant of leave to amend identified by Mr Tomvald include any explanation for the delay, the stage of the proceeding at which leave to amend is sought, the waste of public resources, and whether it will promote the overarching purpose of facilitating the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible: see s 37M of the Federal Court of Australia Act 1976. In respect of those factors, Mr Tomvald notes that:

(1)    if leave is refused, he would be entitled to commence fresh proceedings dealing with the post-commencement matters, which would produce two sets of proceedings, with closely intertwined factual and legal issues and result in a wastage of the Court’s and the parties’ resources and a grave risk of embarrassment by inconsistent findings, contrary to the overarching purpose of s 37M of the Act;

(2)    no evidence has been filed in the proceedings, such that there will be no delay, costs thrown away or wastage of public resources occasioned by the amendment;

(3)    further to delay, there would have been little utility to amend the claim while the interlocutory summary dismissal and strike-out application was on foot, or during the debate about records which was likely to result in a further amendment once records were discovered; and

(4)    the overtime ban allegation is arguably comprehended within the existing concise statement, which identified the minimisation of the applicant’s hours as an issue such that the matter could be agitated without amendment.

17    Mr Tomvald also referred to an issue raised by the respondents in prior correspondence in relation to prejudice caused by agitating a new claim in circumstances in which the first and second respondents no longer have ongoing contact by virtue of Mr Barnard no longer being employed by Toll. This point was not addressed in the respondents’ submissions, outlined below, and therefore must be taken to be conceded.

Respondents’ submissions

18    The respondents contend that the applicant’s reliance on r 16.51(4) is misplaced. The respondents also characterise the amendments as major new claims, for which Mr Tomvald is required to provide an adequate explanation for the delay, citing Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [101]–[103]. In the circumstances, the respondents submit that no adequate explanation has been provided.

19    In respect of Mr Tomvald’s reliance on r 16.51(4), the respondents submit that:

(1)    rule 16.51(4) is permissive, and only concerned with the nature of the amendments that may be made;

(2)    read as a whole, and there being no reference to sub-r (4) in r 16.52, r 16.51 is understood as operating in circumstances where pleadings have not closed;

(3)    Mr Tomvald’s interpretation would allow a party to make amendments at any stage of the proceedings without limitation if it concerned a ‘fact or matter’ that had occurred or arisen since the proceedings were commenced;

(4)    the reference to a “fact or matter” does not include a new cause of action or claim, citing Wenkart v Pantzer [2010] FCA 866; 269 ALR 641 at [84]–[85]; and

(5)    the amendments do not simply relate to a fact or matter, but agitate new claims, requiring leave of the Court to amend the originating application and underlying pleadings.

20    In respect of delay, the respondents submit that:

(1)    the discussions that form the basis of the amendments are said to have occurred on or about 1 March 2018;

(2)    presumably Mr Tomvald knew of these discussions when they occurred, yet no notice was given until service of the proposed amended concise statement on 5 December 2018;

(3)    as to the applicant’s contention referred to above at [16(3)], in circumstances in which pleadings were already contested, the applicant should have taken steps to amend the concise statement to include, or to notify his intention to pursue, the new claims at an earlier stage, which would have permitted any interlocutory application to be dealt with in accordance with the overarching purpose; and

(4)    if leave is granted, the first respondent will need to consider the claims, including any further strike-out application and amended concise replies

As to the last point, this amendment application was the respondents’ opportunity to raise any such issues to prevent such claims in the first place with such objections being advanced as part of this pleading dispute.

21    The respondents further express concern that the adverse action claim is expressed with reference to select, unidentified employees, and presumably quantified on the basis of pay records obtained under the notice to produce. If Toll had been aware that the pay records would be relied upon to construct new major claims, it would have resisted production on the basis that it constituted a fishing expedition.

22    Finally, the respondents also contend that further particulars will need to be provided in relation to the unidentified employees and the basis for the calculation in the new [18] of the proposed amended concise statement, reproduced above at [8].

Applicant’s submissions in reply

23    The applicant submits in reply that:

(1)    this matter has, without objection from the respondents, proceeded by way of concise statement and concise response, which is an alternative to, not substitute for, pleadings, and was adopted to avoid pleading debates similar to the first proceeding – the respondents’ approach is inapt in the case of a concise statement;

(2)    [14]–[18] of the proposed amended concise statement relating to the overtime ban are not a new cause of action, but rather facts that are identified in support of the allegations that the respondents took adverse action, including by minimising his working hours and earnings, and breaching the relevant enterprise agreement; and

(3)    the amendments are designed to put the respondents on notice of facts that the applicant will seek to prove in support of his adverse action claim, and if not expressly pleaded, the respondents would later claim to have been surprised.

24    In respect of an explanation for delay, the applicant reiterated the futility of pleading factual particulars of contraventions when the respondents were seeking to have the whole of the proceeding summarily dismissed, and further notes that it was not unreasonable for the applicant to wait until:

(1)    the pay records were produced to enable further particulars to be properly articulated; and

(2)    the informal settlement discussions had concluded before moving to amend (which the respondents note did not involve the legal representatives of the respondents or any third party).

25    By not addressing the respondents’ submission outlined above at [22], in relation to insufficient particularisation, that point must be taken to be conceded, although not fatal in the circumstances in which a process for the provision of further particulars is provided for by r 16.45.

Consideration

26    The issues remaining in dispute may be summarised as follows:

(1)    whether r 16.51(4) is applicable to the amendment of the applicant’s concise statement; and, if not,

(2)    whether leave should be granted to the applicant to amend his concise statement, within the context of the factors identified above and bearing in mind the overarching purpose of s 37M of the Act.

Rule 16.51(4)

27    Rule 16.51, set out above at [12], entitles a party to amend a pleading once, at any time before the pleadings close, provided that there has not been a prior amendment with the leave of the Court: sub-rr (1) and (2). A party may further amend a pleading at any time before the pleadings close with the consent of each other party: sub-r (3). Contrary to the view of Mr Tomvald, r 16.51(4) does not itself entitle a party to amend pleadings without leave of the court. Rather, sub-r (4) makes clear that an amendment pursuant to sub-r (1) and (3) may be made in respect of a fact or matter that has occurred or arisen since the proceeding started: Friends of Leadbeater’s Possum Inc v Vicforests (No 2) [2018] FCA 532 per Mortimer J at [37]-[39].

28    If Mr Tomvald’s interpretation were accepted, a party would be allowed to make amendments at any stage of the proceeding without limitation if it concerned a new “fact or matter”, which cannot be correct when reading r 16.51 as a whole and in the context of surrounding provisions. Rather, as Mortimer J stated in Possum at [39], r 16.51(4) expressly contemplates that amendments of the kind referred to in the preceding sub-rules may include amendments introducing “facts or matters” that have arisen since the proceeding started. That is, r 16.51(4) it is a clarification provision, not an enlarging provision.

29    Further, as the respondents correctly note, r 16.52 (titled “Disallowance of amendment of pleading”) provides another party the right to apply to the Court for an order disallowing an amendment made pursuant to r 16.51(1) or r 16.51(3) (where the amendment is purported to have been made with consent, but such consent has not been obtained): r 16.52(1)-(2). No reference is made to r 16.51(4). Accordingly, on the applicant’s construction, another party would be unable to seek a disallowance to an amendment purportedly made pursuant to r 16.51(4) under the specific legislative regime put in place to deal with amendments made without leave. Interpretation producing such incoherence should not be readily acceded to.

30    Given the pleadings in this proceeding have closed (r 16.12), and r 16.51(4) does not itself entitle the applicant to amend a pleading without leave, I turn to consider whether leave should be granted for the applicant to amend his concise statement.

Whether leave should be granted

31    In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a Firm) [2015] FCA 1098, Gleeson J provided a clear and succinct summary of the legal principles relevant to the granting of leave to amend pleadings (at [125]–[128]):

The applicable principles are well established. The Court’s powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8].

The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 (“Cement Australia”) at [43]. Relevant matters the Court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

This summary was endorsed on appeal by the Full Court in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a Firm) [2016] FCAFC 2; 332 ALR 199 at [125].

32    Mr Tomvald’s delay in providing notice of the proposed amended concise statement on 5 December 2018, some nine and a half months after the filing of the respondents’ concise statements in reply, must be considered within the context of the procedural history of this matter set out in the introduction above. Part of the proposed amendment refers to events alleged to have occurred on 1 March 2018. However, in circumstances in which judgment was delivered on 29 June 2018 in respect of an interlocutory summary dismissal application brought by Toll, with orders reflecting the judgment made on 24 July 2018, I consider it reasonable for Mr Tomvald not to have sought to amend his concise statement during that time. On 26 July 2018, the applicant furnished to the Court the terms of a notice to produce in respect of pay records of Toll. Following a dispute regarding production, the pay records were provided pursuant to an order of the Court made on 10 September 2018.

33    I also accept Mr Tomvald’s submission that it was not unreasonable for him to wait until informal settlement discussions had concluded (though curiously, as noted on the respondents’ submissions, those discussions do not appear to have involved legal representatives).

34    In respect of further considerations raised by the parties:

(1)    Mr Tomvald contends that if leave were refused, he would be entitled to commence fresh proceedings to deal with matters that are the subject of the proposed amended concise statement. Avoiding a multiplicity of proceedings is of principal concern in this matter, particularly in the context of this being the second proceeding brought by the applicant against Toll arising from his employment.

(2)    I do not consider there to be great prejudice to the respondents in granting leave for the concise statement to be amended. Although this proceeding has been continuing for some time, as Mr Tomvald notes, orders have not yet been made for the filing of evidence. The respondents will be entitled to amend their concise statements in response pursuant to r 16.55(1). The respondents’ contention at [21] above regarding insufficient particulars can be addressed, if needs be, and if a voluntary process of providing further and better particulars is resisted, through the formal process for the provision of further particulars provided for by r 16.45. Mr Tomvald should be motivated to provide suitable particulars.

(3)    As noted above, it does appear that Mr Tomvald needs to make complementary and formal amendments to his originating application, relying upon the substance of these reasons as applying to that pleading for the purposes of r 8.21(1)(g)(i); see also Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 per Wigney J at [238]. That should not occasion any significant difficulty, or any measurable delay.

Conclusion

35    Leave is granted for the applicant to amend his concise statement in the terms of the proposed amended concise statement furnished on 5 December 2018, with any minor corrections as may be required. Leave is also granted for the applicant to amend his originating application to reflect the proposed amended concise statement.

Associate:

Dated:    12 April 2019