Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch & Ors v Bell-a-Bike Rottnest Pty Ltd & Ors

[2005] WASCA 157

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Extension of time
3. › Application for leave to appeal
4. › Nunc pro tunc order
5. › Whether order wrongly heard ex parte
6. › Whether party entitled to have order set aside as of right where not heard
1. Practice and Procedure
2. › Adjournment
3. › Refusal of adjournment
4. › Discretionary nature of decision
5. › Whether Master's discretion miscarried
6. › Unavailability of counsel
1. Practice and Procedure
2. › Pleading
3. › Amendment of defence
4. › Leave to amend at late stage
5. › Whether proposed amendment discloses reasonable cause of defence
6. › Balancing case management principles against attainment of justice
7. › Workplace Relations Act 1996 (Cth), s 166A
1. Practice and Procedure
2. › Leave to appeal
3. › Interlocutory decisions
4. › Requirements for grant of leave
5. › Whether decision attended with sufficient doubt
6. › Whether substantial injustice would result

Quick Take

Whenever a party has not had the opportunity of being heard on an application, the discretion in relation to that party must have miscarried and the order may be set aside as of right. A solicitor's failure to disclose to the court that the opposing party's absence is due to lack of notice, rather than a deliberate decision not to appear, constitutes a breach of the duty of candour owed as an officer of the court. A proposed amendment to pleadings invoking a statutory defence (here, s 166A of the Workplace Relations Act 1996 (Cth)) should not be struck out where the defence is arguable in law and potentially in fact, even where the pleading is deficient in particulars, provided the deficiency can be remedied.