Chambers v Broadway Homes Pty Ltd
[2024] FCA 993
•30 August 2024
FEDERAL COURT OF AUSTRALIA
Chambers v Broadway Homes Pty Ltd [2024] FCA 993
File number: WAD 182 of 2023 Judgment of: JACKSON J Date of judgment: 30 August 2024 Catchwords: PRACTICE AND PROCEDURE - application for joinder of additional respondent - claim under the Fair Work Act 2009 (Cth) - proposed amended claim internally incoherent - application dismissed Legislation: Federal Court Rules 2011 (Cth) r 9.05 Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 29 Date of hearing: 30 July 2024 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr S Heathcote Solicitor for the Respondents: APX Law ORDERS
WAD 182 of 2023 BETWEEN: PETER JOHN CHAMBERS
Applicant
AND: BROADWAY HOMES PTY LTD
First Respondent
MARK BASSO-BRUSA
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.Leave to the applicant to amend in terms of the further minute of amended originating application and further minute of amended concise statement each filed on 8 August 2024 is refused.
2.The interlocutory application filed on 21 May 2024 is otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
The applicant, Peter Chambers, has made an interlocutory application under r 9.05(1) of the Federal Court Rules 2011 (Cth) to join a company called Delstrat Pty Ltd as a third respondent to the proceeding. The present respondents, Broadway Homes Pty Ltd and one of its directors, Mark Basso-Brusa, oppose the interlocutory application. For the following reasons, the application will be dismissed.
The present claim
As presently constituted, the proceeding is a claim by Mr Chambers under the Fair Work Act 2009 (Cth). He alleges that Broadway Homes employed him as a General Manager following the settlement of an earlier claim he had made under that Act. Mr Chambers alleges that in accordance with the settlement agreement, he commenced employment with Broadway Homes (it would appear, for the second time) in January 2023.
Mr Chambers' present claim is that Broadway Homes regularly underpaid him, and that after he complained about that, and commenced proceedings in the Fair Work Commission, he was dismissed from his employment with Broadway Homes. The dismissal is said to have occurred on 20 June 2023. Mr Chambers alleges that he was dismissed because he sought to exercise various workplace rights. He claims compensation and other damages and penalties from Broadway Homes. He alleges that Mr Basso-Brusa was involved in the contraventions by Broadway Homes because, among other things, he instructed others to effect Mr Chambers' dismissal.
The claim is listed for trial for three days commencing on 3 December 2024.
The proposed claim against Delstrat Pty Ltd
Mr Chambers does not have legal representation. The claim that he wishes to pursue against Delstrat Pty Ltd has been articulated in various ways in different documents he has filed in support of the application for joinder. These include an affidavit of Mr Chambers filed on 21 May 2024 accompanying his application for joinder, his submissions filed on 21 June 2024 in support of the joinder application, his reply submissions filed on 5 July 2024, and a minute of amended originating application and concise statement each filed on 24 July 2024. But as I am about to explain, the claims as put in those documents have been superseded, so there is no need to go into them in detail.
It appears that Mr Chambers wishes to allege that Delstrat Pty Ltd was a party to the settlement agreement, which is said to have been formed in October 2022. The nature of the claim he wishes to make against Delstrat Pty Ltd was most clearly articulated, not in the documents, but in an oral submission Mr Chambers made at the hearing of the joinder application. It was to the effect that while Broadway Homes became his employer in fulfilment of the settlement agreement, Delstrat Pty Ltd agreed also as part of the settlement that Mr Chambers would be employed for a minimum term of four years. He alleges that as a result of Broadway Homes's dismissal of him before the end of that term, Delstrat Pty Ltd is in breach of that agreement. He therefore wishes to sue Delstrat Pty Ltd, not under the Fair Work Act but at common law for damages for breach of contract. In short, it appeared at the hearing that Mr Chambers wished to pursue Delstrat Pty Ltd in the capacity of a kind of guarantor that he would be employed (by another entity) for a minimum of four years.
When Mr Chambers articulated that claim at the hearing, I gave him leave to file a further minute of amended originating application and a further minute of amended concise statement that would set out the claim. I indicated that I would resolve the joinder application on the basis of those latest documents. They have since been filed on 8 August 2024, so it is those documents that have superseded Mr Chambers' previous attempts to articulate the claim. I will return to those documents below.
The basis of the proposed joinder
Rule 9.05(1) of the Federal Court Rules provides:
A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:
(a) ought to have been joined as a party to the proceeding; or
(b) is a person:
(i)whose cooperation might be required to enforce a judgment; or
(ii)whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or
(iii)who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.
Mr Chambers submits that Delstrat Pty Ltd is a party to the settlement agreement and ought to have been joined as a party to the proceeding from the outset. He says that Delstrat Pty Ltd's cooperation will be required to enforce any judgment, and that joining it will avoid separate proceedings to determine related disputes.
The respondents' opposition to the joinder
The respondents oppose the joinder of Delstrat Pty Ltd on various grounds. Most of them can be dealt with briefly, since only one has persuaded me that joinder should not be permitted.
The respondents rely on an affidavit that the second respondent, Mr Basso-Brusa, swore on 13 June 2024. This establishes that Mr Chambers had initially misnamed the proposed new respondent, but that has since been rectified. It also clarifies the nature of the group structure of which Broadway Homes and Delstrat Pty Ltd are a part of. The affidavit also disputes that Delstrat Pty Ltd was a party to the settlement agreement, as do the respondents' written submissions on joinder. But the existence of that dispute cannot be a ground to deny joinder. It is a matter for trial.
The respondents' solicitor also submitted that the proposed claim against Delstrat Pty Ltd would be substantially different from the existing claim against Broadway Homes. He submitted that the two claims do not arise out of the same facts. I do not accept those submissions. It is true that the existing claim is against Broadway Homes under the Fair Work Act and the proposed new claim would be against Delstrat Pty Ltd in contract. But they both arise out of the alleged settlement agreement. It is also true that the relatively confined scope of the present dispute about the terms of the settlement agreement is likely to expand considerably if Delstrat Pty Ltd were to be joined. But there is still factual overlap between the two claims and the witnesses and evidence about breach are likely to be the same. Also, any damages awarded and recovered in one of the claims would have an impact on the damages in the other.
As a result, the two claims are sufficiently linked so that, all other things being equal, it would be desirable to join Delstrat Pty Ltd as a party in order to enable determination of a related dispute and avoid multiplicity of proceedings. That is enough to engage r 9.05(1)(b)(iii) of the Federal Court Rules.
It might have been a concern if the expansion of the scope of the issues to be determined were to jeopardise the trial dates. But three days still appears to me to be sufficient time to hear all the necessary evidence and submissions, even for the expanded issues. And there is sufficient time until the trial to accommodate the necessary interlocutory steps. While the solicitor for the respondents raised a concern in the abstract that additional discovery might be required if Delstrat Pty Ltd were to be joined, he did not say specifically how, or demonstrate that it would be substantial. Mr Chambers disavowed any intention to seek further discovery.
It must always be recalled that there is nothing stopping Mr Chambers from commencing a separate proceeding against Delstrat Pty Ltd. In all the circumstances, it appears to me that, if the claim against that company were properly articulated, it would be more efficient to resolve that claim at the same time as the claim against the present respondents.
Why leave to join Delstrat Pty Ltd will be refused
Nevertheless, I have decided that leave to join Delstrat Pty Ltd to the proceeding should be refused. That is because the basis on which the claim against Delstrat Pty Ltd would be put is still entirely unclear. That is so despite the various attempts to articulate the claim against that company that are mentioned above, and despite Mr Chambers' apparent acceptance at the hearing of the joinder application of what he needed to plead, and the further opportunity given to him to do so. Further, as will be seen, the proposed amendments would have the effect of obscuring the present claim against Broadway Homes and Mr Basso-Brusa. In my view it would prejudice a fair and efficient trial of the existing claim to allow it to be run along with the unclear proposed new claim.
To begin with, the further minute of amended originating application filed on 8 August 2024 states that on 9 January 2023, Mr Chambers commenced employment 'as General Manager of Katura Homes (a registered business of the First Respondent)', that is, Broadway Homes. But it then immediately detracts from the clarity of that allegation by saying that Mr Chambers' 'place of employment was located at Seacrest Homes (a registered business of the Third Respondent [i.e. Delstrat Pty Ltd])'. It is not clear what this allegation is meant to achieve; is some employment relationship with Delstrat Pty Ltd also being alleged? I will give Mr Chambers the benefit of the doubt and proceed on the basis that the allegation is solely about the location of the workplace, which is superfluous in the proposed originating application and can be disregarded.
Next, the proposed originating application states that, as outlined in the accompanying proposed concise statement, Mr Chambers seeks orders for Delstrat Pty Ltd to '[p]ay any balance of the sums [claimed against Broadway Homes] not awarded as relief under the provisions of the Fair Work Act' to him. Again, despite a lack of clarity here, it is possible to give Mr Chambers the benefit of the doubt and to proceed to the proposed concise statement in the hope that all will be made clear there.
Regrettably, though, the proposed concise statement obscures the position further. It relevantly commences by pleading that no less than six persons or companies were party to the alleged settlement agreement of October 2022. As well as Mr Chambers, Broadway Homes and Delstrat Pty Ltd, the parties are said to include Mr Basso-Brusa, a company called Jamrok Pty Ltd, and one Jennifer Katherine O'Brien. What rights and obligations Mr Basso‑Brusa is said to have assumed under the agreement is left unsaid.
Then, relevantly, it is alleged that it was agreed that Delstrat Pty Ltd 'would employ Mr Chambers as General Manager, for a minimum of 4 years within one of its associated businesses, to allow him an opportunity to re-establish himself within the Perth Residential Construction Industry'. So, in contradiction to the proposed originating application, it now appears to be alleged that Delstrat Pty Ltd was Mr Chambers' employer. That appearance is cemented by a further plea that Mr Chambers' salary included 'a bonus of 1% of sales revenue for all homes sold by the part of the Third Respondent's [i.e. Delstrat Pty Ltd's] business managed by Mr Chambers'.
Then, Mr Chambers pleads that on 9 January 2023, he 'commenced employment at the Seacrest Homes offices in accordance with the settlement agreement'. Relevantly, he proposes to delete in that plea an existing reference to Broadway Homes as his employer.
And yet, despite all the above, it is then alleged that Broadway Homes is the entity that underpaid Mr Chambers and dismissed him.
The proposed amendments thus obscure what was previously a tolerably clear claim in which Broadway Homes was said to be Mr Chambers' employer. Apart from confusion, that could well have the result that Mr Chambers' Fair Work Act claims against Broadway Homes cannot be maintained, as it is no longer said to be his employer.
For those reasons, I accept a submission by the respondents that the proposed claims are internally incoherent. In short, on the key fact of who was Mr Chambers' employer, the proposed amended claim is equivocal. While it might have been possible to put inconsistent allegations as alternatives, that is not how they are put. I do not consider that a fair and efficient trial of the proceeding can go ahead on that basis.
An additional significant flaw in the claim is that if it is still alleged that Broadway Homes was the relevant employer, no term is pleaded making Delstrat Pty Ltd liable in contract (not as an employer) for any alleged failure by Broadway Homes to employ Mr Chambers for a minimum term of four years. What is alleged is a term that Delstrat Pty Ltd would employ him for four years 'within one of its associated businesses', which is to say that Delstrat Pty Ltd would itself be the employer.
Conclusion
I am conscious that Mr Chambers does not have legal representation. No narrow or pedantic pleading points should be permitted to defeat his claim. But the problems articulated above are fundamental.
As described above, Mr Chambers has had several opportunities to articulate a coherent claim against Delstrat Pty Ltd. With respect, he has not managed to do so, despite his apparent acceptance and understanding at the joinder hearing of what was required. The Court can have no confidence that another opportunity will produce any better result.
The trial dates are now a month closer than they were at time of that hearing. A line needs to be drawn under the issue of joinder. A proper exercise of discretion as case managing judge, taking into account the overarching purpose of the civil practice and procedure provisions, is to proceed to trial against the present respondents on the basis of the current application and pleadings.
The application to join Delstrat Pty Ltd as a party to the proceeding, and Mr Chambers' related application to amend, will be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 30 August 2024
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