Combs v Careerseekers Internship Program - Amendment to Concise Statement

Original Word Document (78.6 KB) Federal Court of Australia

Combs v Careerseekers New Australian Internship Program Limited [2026] FCA 347

| File number(s): | NSD 2375 of 2025 |
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| Judgment of: | LEE J |
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| Date of judgment: | 20 March 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – amendment to concise statement – timing of application – no expansion of issues – standard discovery pursuant to Federal Court Rules 2011 (Cth) r 20.14 – prejudice – balancing exercise – leave to amend granted

DISCOVERY – amendment – discovery – Federal Court Rules 2011 (Cth) r 20.14 – prejudice – leave to amend |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) Pt VB

Corporations Act 2001 (Cth) s 1317AD(1)

Federal Court Rules 2011 (Cth) r 20.14 |
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| Cases cited: | Tamay a Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2016] FCAFC 2; (2016) 332 ALR 199 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Corporations and Corporate Insolvency |
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| Number of paragraphs: | 16 |
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| Date of hearing: | 20 March 2026 |
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| Counsel for the applicant: | Ms M Pantechis |
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| Solicitor for the applicant: | Maurice Blackburn |
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| Counsel for the respondent: | Mr J Burnett |
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| Solicitor for the respondent: | King & Wood Mallesons |
ORDERS

| | | NSD 2375 of 2025 |
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| BETWEEN: | MICHAEL COMBS

Applicant | |
| AND: | CAREERSEEKERS NEW AUSTRALIAN INTERNSHIP PROGRAM LIMITED (ACN 167 509 935)

Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 20 MARCH 2026 |
THE COURT ORDERS THAT:

1. Pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), the applicant is granted leave to file and serve an amended concise statement in the form annexed to these orders.

2. By 5pm on 10 April 2026, the respondent is to file and serve an amended concise response.

3. The date in paragraph 4 of the orders made on 4 February 2026 (being the date the respondent is to serve a proof of evidence and list of documents) is extended to 10 April 2026.

4. The date in paragraph 5 of the orders made on 4 February 2026 (being the date the parties are to give standard discovery) is extended to 15 April 2026.

5. The date in paragraph 6 of the orders made on 4 February 2026 (being the date the applicant is to serve any proofs of evidence or documents in reply) is extended to 17 April 2026.

6. The date in paragraph 7 of the orders made on 4 February 2026 (being the date the applicant is to file and serve an outline of submissions) is extended to 17 April 2026.

7. The date in paragraph 8 of the orders made on 4 February 2026 (being the date each party is to file and serve a verified list of discoverable documents) is extended to 15 April 2026.

8. The date in paragraph 9 of the orders made on 4 February 2026 (being the date the respondent is to file and serve an outline of submissions) is extended to 20 April 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    PROCEDURAL BACKGROUND AND APPLICATION

1 This matter has been listed before me urgently during the Full Court period, as it is listed for hearing on 28 April 2026. The applicant wishes to amend his concise statement.

2 The proceeding first came before me on 4 February 2026. At that time, counsel appearing on behalf of the applicant described the scope of the proceeding as a “narrow” one. The nub of the dispute (to adopt the term used by counsel), concerns the reason why the board of directors of the respondent decided to remove the applicant as a director on 10 June 2025.

3 The legal representative of the respondent agreed with this characterisation of the case. At the conclusion of the first case management hearing, I made several orders, including that the matter be referred to an early mediation and that the matter be set down for trial on the issue of liability.

4 During submissions this morning, counsel for the respondent has referred, on at least three least occasions, to the court putting in place a “compressed timetable” for this hearing. I am not sure that is an accurate characterisation of the orders that have been made for the orderly progression of this matter to hearing over a period of two and a half months, given the very narrow ambit of the facts in issue.

5 Whether accurately described as a compressed timetable or otherwise, the duty of the Court, in accordance with Pt VB of the Federal Court of Australia Act 1976 (Cth), is to facilitate matters being determined as quickly, inexpensively and efficiently as possible. If there is a straightforward case which can be worked up within a relatively short period, the Court will seek to accommodate as early a hearing date as practicable.

6 In any event, there was no objection made to the orders preparing the matter for hearing, one of which was that, by 6 April 2026, the parties are to give standard discovery pursuant to r 20.14 of the Federal Court Rules 2011 (Cth) (FCR), and that, on or by 31 March 2026, the respondent serve on the applicant a proof of evidence of the witnesses it intends to call and a list of documents it proposes to tender in its case-in-chief.

7 The first two prayers in the originating application are those seeking declaratory relief as to contraventions of s 1317AD(1) of the Corporations Act 2001 (Cth). As I have noted, the determinative issue in the case is the reason or reasons why the decision-making organ of the respondent took the actions it did. No doubt, given the respondent has instructed a large and highly experienced firm of solicitors, the first step that would have been taken upon receiving instructions (in order to draft a concise response conscientiously), was interrogating likely witnesses that could be called as to their actual, contemporaneous subjective reasoning processes.

8 Against this background, one comes to the proposed amendments. Although they occupy about one and a half pages, they are relatively narrow. What is alleged is that emails were sent on 10 occasions, which are summarised or characterised in various ways and are said by the applicant to have raised concerns about certain issues. The emails, no doubt, will speak for themselves as to whether the characterisation adopted by the applicant is accurate. It appears from the evidence that all the material in-chief relied upon by the applicant has already been disclosed to the respondent in accordance with my orders or in anticipation of this amendment application.

B    CONSIDERATION

9 The focus of the complaint by the respondents is twofold: f irst, it is said that making new allegations, which now stretch back to 29 May 2024, will expand the discovery process; and secondly, that there is a want of evidence as to an explanation for the proposed amendments (and hence the balancing exercise referred to in Tamay a Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2016] FCAFC 2; (2016) 332 ALR 199 (at 235 [214] per Gilmour, Perram and Beach JJ) cannot be carried out).

10 I will deal with each of these objections in turn.

11 As to the first, it carries with it an implicit misapprehension as to how standard discovery operates. This process only requires a party to discover documents which are directly relevant to the issues raised and which, after reasonable search, the party is aware. Importantly, the discovered documents must meet at least one of the criteria set out in r 20.14 of the FCR, being: documents on which the party giving discovery intends to rely; documents which adversely affect the party’s own case; documents that support the other party’s case; or documents that adversely affect another party’s case.

12 The requirement for a reasonable search is informed by a number of factors set out in r 20.14 of the FCR, which relate to the nature and complexity of the proceedings, the number of documents involved, and the ease and cost of retrieving a document.

13 I have had regard to both the proposed amended pleading and the concise statement in response (as it currently stands). Consistently with what was said to me at the case management hearing, the real issue is the state of mind of those acting on behalf of the respondent at the critical time which is said to give rise to the contravening conduct. It is unclear to me why, when one properly analyses the obligation under r 20.14 of the FCR, that the scope of the discovery task required to be undertaken by the respondent is in any way significantly expanded or, to the extent that it is expanded, why such a minimal expansion would cause a party represented by a highly competent and large firm of solicitors to be so vexed as to likely discovery consequences to refuse to consent to an amendment of this type made in advance of the liability hearing, which is not to occur until the end of April.

14 As to the second point, there is, of course, a need for balancing any prejudice. But any prejudice to the respondent here, when properly analysed, is so minimal that I am content to proceed on the basis that the applicant has pleaded an amendment because, after preparing the applicant’s evidence, this is the case the applicant wishes to run. The consideration does not need to be any more complicated than that – amendments of this type are a commonplace in litigation.

C    CONCLUSION

15 With respect, this was a standard request in the context of litigation. It has been necessary for the matter to be argued at some inconvenience to the Court during a Full Court appeal. Regrettably, this often appears to be the case in matters of this type. For reasons which are not readily apparent to me, in employment related cases, a whole range of matters, which would pass without comment in commercial litigation seem to find reflexive opposition when, upon close analysis, that opposition does not appear to be well-grounded.

16 In the circumstances, I propose to allow the amendment and regret the necessity for the Court to be convened out of hours on an urgent basis to deal with a matter that should have been resolved by consent between the solicitors. I will reserve costs.

| I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 27 March 2026

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