FEDERAL COURT OF AUSTRALIA
Carter v Orix Australia Corporation Ltd [2022] FCA 784
File number(s): NSD 559 of 2021 Judgment of: KATZMANN J Date of judgment: 8 July 2022 Catchwords: PRACTICE AND PROCEDURE — interlocutory application to file amended originating application — where amendments identify statutory bases for claims with respect to unpaid accrued annual leave already made in amended statement of claim previously filed — where respondent did not oppose amendments or claim to be prejudiced by them, whether leave should be granted and when the amendments should take effect
PRACTICE AND PROCEDURE — interlocutory application to strike out part of respondent’s defence which raises a claim of equitable set-off — whether set-off claim should be struck out because it fails to disclose a reasonable defence — whether question appropriate for determination on strike-out application
PRACTICE AND PROCEDURE — interlocutory application for summary judgment of claim for unpaid long service leave — where applicant had been employed by respondent for three decades and respondent admitted that no long service leave had been paid to applicant but claimed to be entitled to set off the amount owing against damages to which it claimed to be entitled as a result of applicant’s conduct, whether no reasonable defence disclosed
Legislation: Long Service Leave Act 1955 (NSW) ss 4, 7, 12
Fair Work Act 2009 (Cth) ss 61(1), 90(2), 544, 570
Federal Court of Australia Act 1976 (Cth) ss 31A, 32, 37M, 59(2B), 570
Federal Court Rules 2011 (Cth) rr 1.41, 8.21, 16.53, 26.01
Cases cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226
Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 364
Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705
D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10
James v Commonwealth Bank of Australia (1992) 37 FCR 445
Joseph v Parnell Corporate Services Pty Ltd [2020] FCA 426; 295 IR 49
Joseph v Parnell Corporate Services Pty Ltd (2021) 284 FCR 546
Kernaghan v Neffray Pty Ltd [2020] FCCA 1141
Krajniw v Newman (No 2) [2015] FCA 673
McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211; 123 ACSR 467
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325
Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) (2011) 203 FCR 293
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451
Resolute Corporate Services Pty Ltd (formerly Goudhurst Pty Ltd) v Wearing [2020] WADC 132
Spencer v The Commonwealth (2010) 241 CLR 118
Stanley v Service to Youth Council Inc (No 3) (2014) 225 FCR 357
Walker v Secretary, Department of Social Security (1995) 56 FCR 354
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- Case
- [2022] FCA 784
- Decision Date
CaseChat Overview and Summary
The court considered several legal issues, including whether leave should be granted for the applicant to amend his originating application and statement of claim, whether the respondent’s claim of equitable set-off should be struck out, and whether the applicant’s summary judgment application should be granted. The court noted that the respondent had not opposed the amendments or claimed to be prejudiced by them, suggesting that the amendments should be allowed. Regarding the summary judgment application, the court held that the applicant needed to demonstrate that the respondent had no reasonable prospect of successfully defending the claim. The court was cautious in exercising its discretion to grant summary judgment, mindful of the need to avoid stultifying the development of the law.
The court declined the application for summary judgment, stating that the success of the proceedings depended on propositions of law that were not precluded by existing authority. The court found that the determination of the respondent’s claim for equitable set-off involved a factually intense inquiry spanning over a decade and required consideration of both lay and expert evidence. The court concluded that the matter was not appropriate for summary judgment, as the success of the proceedings was critically dependent on a proposition of law that could be subject to further exploration. The court also noted that the decision in Walker was not binding and that there was a powerful dissent. The court granted leave for the applicant to file an amended originating application and ordered that the amendments take effect from the date the proceeding was commenced. The interlocutory application was otherwise dismissed, and costs were reserved.
Orders
Orders of the court
1. Leave be granted to the applicant to file an amended originating application in the form exhibited to the affidavit of Michael Zwar sworn on 5 April 2022.
2. The amendments made in the amended originating application and the amended statement of claim filed on 20 October 2021 take effect from 11 June 2021, being the date this proceeding was commenced.
3. The interlocutory application (as amended on 24 May 2022) otherwise be dismissed.
4. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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