FEDERAL MAGISTRATES COURT OF AUSTRALIA
MCKELLAR v JETSTAR AIRWAYS PTY LTD	[2010] FMCA 242	

PRACTICE AND PROCEDURE – Grant of leave to amend application and statement of claim on first day of hearing – consideration of affect of amendments when matter would not have completed within scheduled hearing time in any event – comment on speed of obtaining hearings in FMC.	

Federal Magistrates Court Rules 2001	

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
Pascoe v Boensch & Anor (No 9) [2009] FMCA 769	

Applicant:	ANTHONY mckellar	

Respondent:	jeTstar airways pty ltd	

File Number:	SYG 2210 of 2009	

Judgment of:	Raphael FM	

Hearing date:	23 March 2010	

Date of Last Submission:	23 March 2010	

Delivered at:	Sydney	

Delivered on:	23 March 2010	

REPRESENTATION
Counsel for the Applicant:	Mr M Kimber SC	

Solicitors for the Applicant:	Australian & International Pilots Association	

Counsel for the Respondent:	Mr P O’Grady	

Solicitors for the Respondent:	Freehills	

ORDERS
(1)	Application to amend allowed. 
(2)	Respondent to file an amended response and an amended defence.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
sydney	
SYG 2210 of 2009
anthony mckellar	
Applicant

And

jetstar airways pty ltd	
Respondent

REASONS FOR JUDGMENT
1.	This proceeding is one that was brought in the industrial jurisdiction of this Court by way of an application filed on 10 September 2009 and a statement of claim filed on the same day.  The matter went through the usual interlocutory processes of this Court, receiving a hearing date on 22 March 2009, well within this Court’s usual timeframe for providing parties with a hearing, such timeframe being, in my view, superior to any other Court in the Commonwealth of Australia.
2.	The case is not a simple one involving as it does the interpretation of some complex industrial agreements.  That was only to be expected knowing that the applicant was employed as an airline pilot by a substantial airline.  Unfortunately, the manner in which the applicant’s case was articulated required a further amended application, which was filed on 22 December 2009, pursuant to orders of this Court made on 9 December, and by the time the matter came before me for hearing, the view was taken that even that document needed some substantial amendment. 
3.	It was the debate as to whether these amendments could be permitted that took up the first part of the first day of hearing.  I then adjourned the matter so that there could be put before me and before the respondents a second further amended application and statement of claim upon which argument could be based.  That document was received this morning.  As foreshadowed, there are, essentially, four grounds of amendment.  In order to understand them, it is necessary to explain shortly that the applicant was employed as a first officer on Airbus A320 aeroplanes by the respondent in March 2008. 
4.	In order to carry out those duties he was required to be trained.  There were two aspects to that training.  The first was what I would describe as “on the ground training”, which was given to the applicant by a third party.  The second was flying training, which was provided by the respondent itself through various training pilots.  The applicant proceeded to take part in the on the ground training.  That training had a cost of some $35,000.00 and the applicant was required to sign a document called an endorsement agreement, pursuant to which he agreed to repay the respondent the cost of this in accordance with the terms of that document. 
5.	It is said that the applicant passed the on the ground training and proceeded to the flying training. That culminated in an examination called a “check to line”, which the applicant was required to pass before he could become an independent first officer.  The applicant took the training and took the check to line examination, which he failed.  In discussions with the respondent’s trainers and human resources staff, the applicant advised that he believed that one of the reasons that he did not pass this check to line examination was that he had a personality conflict with one of the trainers and that this trainer had been a substantial trainer prior to his check to line examination. 
6.	He says that certain things were told to him about this, that he was then permitted a further period of training, and a further examination.  He undertook the further period of training and the further examination, which he also failed.  He said that, contrary to an arrangement that he believed had been made, the training captain that he had a personality conflict with was still rostered on to train him, and that this prevented him from reaching the required standard. 
7.	The amendments sought by the applicant to the further amended statement of claim are four-fold.  The first relates to whether or not the applicant was on probation during the period in which he was receiving his check to line training.  It is fair to say that the applicant was prepared to accept that this was the position up to the time the amendment was sought.  Indeed, it appears in the original pleading.  However, whilst this case was being prepared, and a more than cursory look was made at the documents which the applicant now says form part of his contract, it was discovered that it could be argued that in order for a person to be on probation as opposed to being a permanent employee, he had to be told that he was on probation, and it is argued that this did not occur. 
8.	The second matter upon which an amendment is sought is to argue that there is incorporated into the contract a document known as the “Jetstar Operations Manual, Volume 3, Air Crew Training and Checking”.  This is a voluminous document.  It clearly has considerable importance, and the applicant seeks to extract from it certain provisions which he says affect the manner in which he should have been trained because, he argues, the respondents did not train him in accordance with those requirements, thus repudiating the contract and thus preventing them from claiming back the moneys expended under the endorsement agreement. 
9.	The third matter is an additional implied term which is similar in terms to the one I have just described.  It argues that there was an implied term of the contract of employment that the respondent could not terminate the applicant or require him to pay for the costs of his training unless he had been provided with reasonable access to the necessary training and delivery of that training.  
10.	Finally, the applicant asks for an amendment to enlarge his claim for damages which comes out of the probation point.  What the applicant says is that if he was not on probation, he would have been entitled to more notice than he received.  He did not receive that notice and damages should follow.  In addition, he says that if he had been treated properly and given access to satisfactory training, he would have not failed check to line and then would have continued his employment for a period thereafter.  The period is to some extent set out in the proposed amendment.   
11.	In considering whether a Court should allow amendments of the nature of those described at this late stage, one has to take into account a number of matters and a considerable body of authority.  The Court is aided in this task by the recent decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon”), where the High Court revisited its own decision in Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 (“JL Holdings”).  The gravamen of that decision was that it could no longer be said that amendments should always be granted or, more prosaically, there was a ‘right’ to amendment, where costs would alleviate the pain to the party against whom the amendment was sought.  
12.	 The High Court indicated that another Court considering amendments would have to take into account not just the requirement that justice be done between the parties and the general interest of justice, but also the prejudice to the non-amending party and the disruption that the amendment might make to the running of the Court.  It also suggested that it was incumbent upon those seeking the amendment to provide a satisfactory explanation for why it was necessary.  I considered these matters in a decision that I gave on 13 August 2009 called Pascoe v Boensch & Anor (No 9) [2009] FMCA 769 (“Pascoe”) and hope that it will be accepted that the considerations referred to in Aon and in the other authorities to which I there referred have passed through my mind in coming to the conclusions that I do in relation to this particular case.   To the extent that I might have suggested in Pascoe that the High Court had disapproved of JL Holdings, I would perhaps limit that statement to what the Court actually said, which was that there were certain items within the JL Holdings judgment that needed to be reconsidered.  
13.	This Court does not have a rule similar to those known as rules 5.01 and 5.02 found in the rules of the Supreme Court of the Australian Capital Territory.  Its rule as to amendment is found at part 7, rule 7.01 which states simply:
	“(1)	At any stage in the proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
 (2)  subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.”  
14.	In a case such as this where the amendment is to a pleading, then I think there is a strong argument that the Federal Court Rules relating to pleadings would apply given the provision of rule 4.05(3) of the Federal Magistrates Court Rules 2001 which states:
	“If the statement of claim or points of claim are filed under paragraph (2)(b), a respondent:
	(a)	must file the defence or points of defence instead of an affidavit,
	(b) 	may file a cross-claim.”
And then:
	“Note:  Subsection 43(2) of the Act provides for Rules of Court made under the Family Law Act and Federal Court of Australia Act 1976 to apply, with necessary modifications to the practice and procedure of the Federal Magistrates Court for particular jurisdictions of the Court if the rules are insufficient.  Those Rules may be used to direct how pleadings are to be dealt with in the Federal Magistrates Court if sub rules 4.05(2) and (3) apply.”
15.	In considering whether or not I should allow this amendment at this late stage I have taken into account the following matters. The amendment relating to the probationary period is, to my mind, the only amendment that may require the respondent to have to consider whether or not it needs to file any additional evidentiary material and which will hold up the possible cross examination of the applicant, which was due to begin today.  The applicant has stated, through his counsel, that he does not intend to produce any additional evidence in relation to any of the amendments, and this is a matter to which he will be held should the amendments be granted.  
16.	The respondent should be entitled to have such time as is reasonably necessary for it to investigate the additional allegation concerning probation.  It is only put in the negative, and there are no positive assertions being made by the applicant of an evidentiary nature.  The applicant submits that it should be reasonably easy for the respondent to do this, and I believe that given time, that is probably correct.  With the exception of this element, the amendments are otherwise a change of emphasis in legal argument reliant upon documents, all of which have emanated from the respondent.  
17.	The case has been put on for trial within six months of commencement.  The original assessment of the time that it would take for this case to be heard was, unfortunately, inaccurate.  I do not blame any one of the parties for this.  A very large number of witnesses are now going to be called and, therefore, the case would not conclude this afternoon as originally expected.  The case will have to go over, although, not for an extended period of time.  There is no disadvantage to other litigants in any queue if the amendments are allowed and the case is adjourned.  The manner in which this Court runs its dockets is such that hearing dates are not assigned, at least within the general Federal Law Sydney Registry, much more than three or four months in advance.  So it can be reasonably confidently expected that the case will be completed within nine or ten months of its original filing and that no person whose case has already been set down for hearing will be in any way inconvenienced. Persons whose cases have not yet been set down for hearing will also not be because they will only just have filed their applications and would not expect their case to be set down for hearing in under four or five months.
18.	So it seems to me that in these circumstances costs can salve the wound.  I have not been presented with any evidence of prejudice to the respondent not capable of being remedied in costs and, as would appear clear from what I have previously said, I believe that the facts with which the amendments are concerned are not new facts but a new reading of the agreement.  I am therefore of the view that it is in the interests of justice that the case should be property articulated and that it should be heard as now pleaded.  I have made it quite clear that I do not propose to permit any further amendments, other than an amendment foreshadowed before I commenced these reasons to the application to bring it in line with certain wording in the second further amended statement of claim.
19.	I do, however, leave it open for the respondent to consider the possibility of an application under rule 21.07 in relation to the costs to be awarded for the losses suffered by it as a result of this amendment, such losses being, of course, what are generally described as “the costs thrown away”.  The only explanation that I have been given for what has occurred is oversight or failure to attend to detail by the applicant’s legal advisers.  It has been made quite clear to me that the applicant, whilst not impoverished, is a man of limited means.  In fact, it is his limited means that have been put to me to suggest, in part, the unfairness of him having to be required to make the repayment.  It could be argued that he should not have to personally bear those costs.  However, that is a matter for another day.  If the application is made, the legal adviser will have an opportunity to provide the Court with an explanation, and I will put the matter into the background until such application is made.  The respondent will be required to file an amended response and an amended defence, which I will give a timetable for at the conclusion of today.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:  

Date:  7 April 2010