FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Andromedas v Petrinovic [2025] FedCFamC2G 366
File number(s): SYG 2584 of 2024 Judgment of: JUDGE KAUR-BAINS Date of judgment: 20 March 2025 Catchwords: FAIR WORK – interlocutory application by third respondent for summary dismissal under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – whether there are no reasonable prospects of the applicant proving the third respondent is a ‘responsible franchisor entity’ as defined under s 558A(2) or a holding company under s 558B(2) of the Fair Work Act 2009 (Cth) – whether any deficiency in the pleadings against the third respondent is incurable – summary dismissal of the proceeding against the third respondent refused on the basis the deficiency in the pleadings may be curable by amendment – leave granted to amend the statement of claim to plead accessorial liability pursuant to s 550 of the Fair Work Act 2009 (Cth) Legislation: Fair Work Act 2009 (Cth) ss 14, 550, 558A, 558B
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143
Federal Court of Australia Act1976 (Cth), s 31A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.04, 4.02, 7.01, 13.13
Competition and Consumer (Industry Codes – Franchising) Regulations 2014 (Cth), sch 1
Cases cited: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Fair Work Ombudsman v Make Dough Enterprises (in liquidation) [2024] FCA 1432
Leach v Burston [2022] FCA 87
Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 30 January 2025 Solicitor for the Applicant: Mr K Bolwell of WorkLawyers First and Second Respondents: Appearances Excused for the First and Second Respondents Solicitor for the Third Respondent: Mr G Sakkal of Arnold Bloch Leibler ORDERS
SYG 2584 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARGARITA ANDROMEDAS
Applicant
AND: VINKO PETRINOVIC
First Respondent
VINPETRIN PTY LTD
Second Respondent
RETAIL FOOD GROUP LIMITED
Third Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The Third Respondent’s application in a proceeding filed 10 December 2024 is dismissed.
2.The allegations pleaded against the Third Respondent in the statement of claim be struck out.
3.The Applicant has leave to amend the statement of claim in relation to the Third Respondent.
4.The matter be listed for directions at 9:30 am on 7 April 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or…
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- Andromedas v Petrinovic [2025] FedCFamC2G 366
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- [2025] FedCFamC2G 366
- Decision Date
CaseChat Overview and Summary
Andromedas v Petrinovic is a case before the Federal Circuit and Family Court of Australia concerning an interlocutory application by the third respondent, RFG, for summary dismissal. The applicant, Andromedas, seeks to hold RFG accountable for alleged contraventions of the Fair Work Act 2009 (Cth). Specifically, the application addresses whether RFG is a "responsible franchisor entity" or a holding company, as defined under sections 558A(2) and 558B(2) of the Act, and whether the deficiencies in the pleadings against RFG are incurable. The court was required to determine if there were no reasonable prospects of Andromedas proving these points and if any deficiencies in the pleadings were incurable. Additionally, the court considered whether Andromedas could amend the statement of claim to plead accessorial liability pursuant to section 550 of the Fair Work Act.
The court's reasoning focused on the pleadings and the potential for amendment. It noted that while the statement of claim did not disclose a reasonable cause of action in relation to the Flinders Hotel, it might be possible to amend the pleadings to include facts supporting RFG’s accessorial liability for the alleged contraventions at the Crust Pizza Liverpool business. The court held that at this stage of the proceedings, it was premature to order the dismissal of the proceedings against RFG as the deficiencies in the pleadings may be curable by amendment. Consequently, the court granted leave for Andromedas to amend the statement of claim, allowing for the potential inclusion of material facts supporting RFG’s accessorial liability under section 550 of the Fair Work Act.
The court concluded that, given the circumstances, it was not appropriate to dismiss the proceedings against RFG outright. Instead, the court found it necessary to give Andromedas leave to amend the pleadings, in line with the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to facilitate a just resolution of the disputes according to law as quickly, inexpensively, and efficiently as possible. The court further indicated that it would hear the parties regarding costs and the potential inclusion of CGP as a party to these proceedings.
The court's reasoning focused on the pleadings and the potential for amendment. It noted that while the statement of claim did not disclose a reasonable cause of action in relation to the Flinders Hotel, it might be possible to amend the pleadings to include facts supporting RFG’s accessorial liability for the alleged contraventions at the Crust Pizza Liverpool business. The court held that at this stage of the proceedings, it was premature to order the dismissal of the proceedings against RFG as the deficiencies in the pleadings may be curable by amendment. Consequently, the court granted leave for Andromedas to amend the statement of claim, allowing for the potential inclusion of material facts supporting RFG’s accessorial liability under section 550 of the Fair Work Act.
The court concluded that, given the circumstances, it was not appropriate to dismiss the proceedings against RFG outright. Instead, the court found it necessary to give Andromedas leave to amend the pleadings, in line with the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to facilitate a just resolution of the disputes according to law as quickly, inexpensively, and efficiently as possible. The court further indicated that it would hear the parties regarding costs and the potential inclusion of CGP as a party to these proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In its defence, RFG denies each of the matters set out in the preceding paragraph of this judgment.EVIDENCE BEFORE THE COURT RFG relies on Mr Gabriel Sakkal's affidavit affirmed 9 December 2024, which was read without objection.Flinders Hotel In relation to Flinders Hotel, Mr Sakkal says he is instructed RFG has no connection, whether as franchisor or otherwise, with the Flinders Hotel ([5] of the affidavit).Franchise agreement The relevant terms of the written franchise agreement for the Crust Pizza franchise in Liverpool dated 22 October 2013 are as follows:(a)The agreement is said to be between CGP Systems Pty Ltd (CGP), defined in recital A as the entity that ‘owns or has a right to use the System and the right to grant the Crust Franchises’, and the franchisee, Vinpetrin, and the guarantors, Vinpetrin and Vinko Petrinovic.(b)Recital C provides ‘Crust’ has agreed to grant the Crust Franchise being operated in Liverpool as Crust Gourmet Pizza Liverpool.(c)‘Crust’ is defined in the definitions clause of the agreement, cl 39, ‘except where the context otherwise indicates’, to include ‘Crust’s servants, agents, successors in title and assigns and those claiming through or under them’. (d)‘Crust Group’ is defined to mean ‘Crust and/or any Related Company of Crust’. In turn, ‘Related Company’ is defined relevantly to include a holding company of CGP. (e)Cl 1.1 provides ‘Crust’ grants the franchise to the franchisee, Vinpetrin.(f)Cl 37.9 provides the agreement including manuals and disclosure documents set out the entire agreement. The applicant relies on the affidavit of Mr Kristian Bolwell, which was read without objection. The Australian Securities and Investments Commission search for CGP, the named franchisor, discloses RFG is the ultimate holding company for CGP. WHETHER CLAIM PLEADED AGAINST RFG HAS NO REASONABLE PROSPECTS The allegations of contraventions of the FW Act are made in relation to the applicant’s employment in two separate businesses, the Crust Pizza Liverpool business and the Flinders Hotel. I will deal with the claims pleaded in relation to the two businesses separately.Allegations of accessorial liability of RFG in relation to the alleged contraventions at the Crust Pizza Liverpool business The claim against RFG by the applicant is a claim for contravention of s 558B(1) of the FW Act, which relevantly provides as follows:Responsibility of responsible franchisor entities and holding companies for certain contraventionsResponsible franchisor entities(1) A person contravenes this subsection if:(a) an employer who is a franchisee entity of a franchise contravenes a civil remedy provision referred to in subsection (7); and(b) the person is a responsible franchisor entity for the franchisee entity; and(c) the contravention by the franchisee entity occurs in the franchisee entity's capacity as a franchisee entity; and(d) either:(i) the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001 ) of the responsible franchisor entity knew or could reasonably be expected to have known that the contravention by the franchisee entity would occur; or(ii) at the time of the contravention by the franchisee entity, the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001 ) of the responsible franchisor entity knew or could reasonably be expected to have known that a contravention by the franchisee entity of the same or a similar character was likely to occur.
Decision
Reasons for decision
Given the matters in [35] and [36] of this judgment I am satisfied the statement of claim does fail to disclose a reasonable cause of action in relation to the contraventions alleged in relation to the Flinders Hotel. However, I will give the applicant an opportunity to amend the statement of claim, if she wishes to do so, to plead material facts as to RFG’s accessorial liability for the alleged contraventions of the FW Act in relation to the Flinders Hotel. CONCLUSION For the reasons set out in this judgment, at this stage of the proceedings, it is premature to order the dismissal of the proceedings against RFG, as I am not satisfied the deficiency in the pleadings is incurable. Having regard to r 1.04 of the Rules, and the overarching purpose of the Rules to facilitate a just resolution of the disputes according to law as quickly, inexpensively and efficiently as possible, the appropriate order to make is to give the applicant leave, pursuant to r 7.01(1) of the Rules, to amend the pleading in relation to RFG’s accessorial liability under s 550 of the FW Act. I will hear the parties as to costs and the inclusion of CPG as a party to these proceedings.
Ratio Decidendi
Legal Principle Established
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