Case: McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445
Outcome: cited
These proceedings were commenced on 9 May 2003 and have been the subject of extensive case management. Some aspects of the interlocutory steps (but not all) are described at [38], pages 29-33 of McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 based upon a chronology put before me by the respondents as part of the respondents' application for non-party discovery and leave to issue subpoenas. 62 All of these steps demonstrate that the factual and legal controversy has been framed over a considerable period with many interlocutory orders directed to joinder of parties, amendments to the Statement of Claim, the filing of defences, amendments to the Defence, the provision of particulars, verified discovery, inspection, various interlocutory applications and the preparation of statements in support of the claim, statements in response and statements in reply. A considerable amount of time, energy, cost and intellectual effort has been directed by the parties to joining issue on the factual and legal controversy with extensive recourse to Court supervision and Court engagement. 63 The trial of the action was to commence on Monday, 10 October 2005. However, approximately one week prior to the trial a question arose as to whether the trial would proceed on the issue of the alleged contravention with a separate hearing on the issue of compensation. As to the question of bifurcating the issues, I indicated that I was not prepared at that late stage to separate issues and required the applicant to provide particulars of the compensation claim. The preparation for trial throughout proceeded on the footing that particulars of the compensation claim would be provided to the respondents prior to trial. By consent, the trial was adjourned to 12 October to enable particulars of the compensation claim to be provided to the respondents, discussions to take place between the parties as to a proposed Reply by the applicant to the Amended Defence of the respondents and to deal with objections to evidence with the trial to commence on Monday, 17 October. 65 The essence of the Reply was to put in issue, as counsel for the applicant put it, 'whether or not what was offered to the named persons was, in fact, a genuine offer and whether what was offered amounted to a breach [of the Act] or not' (page 9, line 27 of the Transcript). After hearing counsel for the respondents opposing leave, I stood the matter down briefly and took the view that the responsive matters the subject of the Reply were within the scope of the existing factual controversy, that no prejudice was demonstrated to the respondents in giving leave and that the question of whether a further contravention based upon s 298K(1)(c) arose on the facts before the parties arising out of the statements was a conclusionary matter which could properly be raised. I gave short Reasons about those matters ( McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445) but directed that the third ground of contravention should be pleaded by way of a Further Further Amended Statement of Claim ('F F A S C'). 66 Counsel for the applicant and the respondents took the view that the trial of the action would be concluded within two weeks commencing Monday, 17 October and accordingly the commencement of the trial was adjourned until 17 October to enable the F F A S C to be formulated by the applicant and served on the respondents during the course of Thursday, 13 October 2005. I made it clear to counsel for the respondents that should the F F A S C raise further material facts which went beyond the scope of the facts raised in the statements exchanged between the parties, I would be willing to hear the respondents in relation to the F F A S C and determine whether the third ground of contravention should properly be the subject of leave in the context of the facts actually pleaded in the F F A S C as it emerged. The F F A S C was also to incorporate proper particulars of the compensation claim. 67 On Monday, 17 October at the commencement of the trial, the respondents opposed leave to amend the Further Amended Statement of Claim in accordance with a proposed F F A S C to introduce the third ground of contravention in reliance on s 298K(1)(c) having regard to what was said to be the proper understanding of the scope and construction of that provision and particularly the meaning of 'employee' in s 298K(1)(c).