Martin v Twin Creeks Golf & Country Club Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 30 November 2021
• Neutral Citation: [2021] FCA 1499
• Court: Federal Court
• Date: 30 November 2021

Federal Court of Australia

Martin v Twin Creeks Golf & Country Club Ltd [2021] FCA 1499

File number:	NSD 1985 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	30 November 2021
Catchwords:	PRACTICE AND PROCEDURE – application for leave to amend defence and withdraw admissions – consideration of discretionary factors, including whether there is a good reason that certain admissions should be withdrawn – leave to amend defence and withdraw admissions granted ; PRACTICE AND PROCEDURE – application for leave to file cross-claim out of time – consideration of discretionary factors, including whether there is an adequate explanation for delay in bringing the cross-claim and sufficiency of the pleading – leave to file cross-claim out of time refused ; COSTS – application for costs under s 570(2)(b) of the Fair Work Act 2009 (Cth) – whether conduct of the respondents was “unreasonable” – where no adequate explanation for delay – costs awarded
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43 Federal Court Rules 2011 (Cth) rr 15.04, 15.05, 16.02, 16.12, 16.21, 16.42, 16.51, 39.32
Cases cited:	Ashby v Slipper (No 2) [2014] FCAFC 67; (2014) 314 ALR 84 Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574 Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 1030 Maile v Rafiq [2005] NSWCA 410 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 Richmond v Ora Gold Limited [2020] FCA 70 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 Ryan v Primesafe Pty Ltd [2015] FCA 8; (2015) 323 ALR 107 Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 Singtel Optus Pty Ltd v Almad Pty Ltd [2013] NSWSC 1098 Specsavers Pty Ltd v The Optical Superstore Pty Ltd [2012] FCAFC 183; (2012) 208 FCR 78 Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; (2016) 332 ALR 199 Tsilibakis v Transfield Services (Australia) Pty Ltd (No 2) [2015] FCA 1048
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	72
Date of hearing:	17 November 2021
Counsel for the Applicant:	Ms V Bulut
Solicitor for the Applicant:	Stevens & Associates Lawyers
Counsel for the Respondents:	Mr M Fantin
Solicitor for the Respondents:	Jurisbridge Legal

ORDERS

		NSD 1985 of 2019
BETWEEN:	GRANT MARTIN Applicant
AND:	TWIN CREEKS GOLF & COUNTRY CLUB LTD ACN 106 909 184 First Respondent ; ZHAO QING JIANG Second Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	30 November 2021

THE COURT ORDERS THAT:

1. The respondents are granted leave to withdraw the admissions in their defence filed on 5 March 2020, the subject of this application.

2. The respondents are granted leave to file an amended defence in the terms sought as represented by the document provided to the applicant on 28 May 2021.

3. Leave to file the cross-claim dated 14 July 2021 is refused.

4. The respondents are to pay the applicant’s cost of these applications, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. This is an application by the respondents variously to withdraw admissions made in the defence filed on 5 March 2020, to otherwise amend other aspects of the defence filed, and for leave to file a cross-claim out of time.

2. For the reasons below, leave is granted to the respondents to withdraw the admissions in their defence filed on 5 March 2020, the subject of this application. The respondents are also granted leave to file an amended defence in the terms sought as represented by the document provided to the applicant on 28 May 2021. An extension of time in which to file a cross-claim is refused.

Background

3. This matter has an unfortunate history to date.

4. The applicant commenced these proceedings on 27 November 2019, seeking declarations, compensation and the imposition of pecuniary penalties against his former employer, Twin Creeks Golf & Country Club Ltd (the first respondent), and Mr Zhao Qing Jiang (the second respondent), a director of the first respondent.

5. On 5 March 2020, the respondents filed their defence in these proceedings (Original Defence).

6. On 4 June 2020, the parties attended a court-ordered mediation, which was unsuccessful.

7. On 14 April 2021, in accordance with orders made on 25 March 2021 at a case management hearing, the respondents served on the applicant a proposed amended defence dated 15 April 2021 (Proposed Amended Defence), which has not been filed. Rather, on 28 May 2021, the respondents served on the applicant a further proposed amended defence (Further Proposed Amended Defence). It is the Further Proposed Amended Defence to which this application relates. The respondents’ undated submissions regarding their application for leave to amend their defence were filed on 25 June 2021. The applicant’s submissions on the same question were filed on 7 July 2021. The applicant has also filed two affidavits of his solicitor, Luke David Maroney, affirmed on 6 July 2021 (First Maroney Affidavit) and 4 August 2021 (Second Maroney Affidavit).

8. That application was listed for hearing on 15 July 2021. However, on that day, the hearing was adjourned to allow the respondents to file an application seeking leave to file a cross-claim, which they had foreshadowed in their Further Proposed Amended Defence.

9. In accordance with orders made that day, the respondents have now filed: an interlocutory application for leave to file a cross-claim dated 14 July 2021 (Leave Application); a notice of cross-claim dated 14 July 2021; a statement of cross-claim dated 14 July 2021 (Proposed Cross-Claim); and an affidavit of Robert Frohlich, the respondents’ solicitor, affirmed 14 July 2021 (Frohlich Affidavit). On 23 July 2021, the respondents filed an affidavit of David Chen affirmed the same day (Chen Affidavit). Mr Chen is the managing director of the first respondent.

Material relied on

10. Each of the affidavits referred to above were read in respect to both applications.

Leave to amend defence and withdraw admissions

11. The Further Proposed Amended Defence seeks to withdraw admissions made in the Original Defence, although additional amendments are also sought to be made.

12. In summary, the respondents submitted that, by reference to the statement of claim (SOC), the clear and distinct admissions were: [4], [32], [39(c)], [44], [46(a)], and [56] to [59], and that paragraphs [4], [46(a)] and [56] to [59] are contrary to fact. In relation to [5] to [14], those paragraphs were not traversed and for the abundance of caution, those paragraphs are now denied. In relation to [25], it was admitted but pleaded out by way of further defence. In relation to [27] and [31], they were mistakes and the admissions are contrary to fact, or were made inadvertently or...