Chambers v The Trustee for Goanna Tracks Trust - [2019] FCCA 3766

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAMBERS v THE TRUSTEE FOR GOANNA TRACKS TRUST & ANOR

[2019] FCCA 3766

Catchwords:
INDUSTRIAL LAW – transfer of employment – relevant criteria – liability as an accessory – necessary content of allegation.

PRACTICE & PROCEDURE – liability as an accessory – necessary content of allegation.

Legislation:

Fair Work Act 2009, ss.12, 13, 14, 22, 44, 45, 90, 117, 311, 340, 341, 342, 536,

539, 542, 543, 545, 547, 550

Long Service Leave Act 1955 (NSW), ss.4, 10, 10A, 10B

Corporations Act 2001, ss.50AAA, 50AA, 64A, 500

Superannuation Guarantee (Administration) Act 1992, s.19

Cases cited:

Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors (2010)

245 FLR 242

Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285

Applicant:

EUGENE CHAMBERS

First Respondent:

THE TRUSTEE FOR GOANNA TRACKS TRUST (ABN 97 398 642 733)

Second Respondent:

TOM CROMB

File Number:

SYG 209 of 2017

Judgment of:

Judge Cameron

Hearing date:

7-8 August 2018

Date of Last Submission:

8 August 2018

Delivered at:

Sydney

Delivered on:

20 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Solicitors for the Applicant:

Legal Aid New South Wales

The Second Respondent appeared in person (by telephone)

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 209 of 2017

EUGENE CHAMBERS

Applicant

And

THE TRUSTEE FOR GOANNA TRACKS TRUST (ABN 97 398 642 733)

First Respondent

TOM CROMB

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant is a former employee of the first respondent, Goanna MX Pty Ltd trading as Goanna Tracks Motocross (“Goanna MX”) which operated a motocross track at Coonabarabran in central western New South Wales. Although the identity of the trustee who was joined as the first respondent was never clearly alleged or proved, the respondents appear to have identified it as Goanna MX by citing it as such in their defence filed on 31 August 2017. The second respondent is alleged to have formerly been a manager of the first respondent.
On 19 January 2017 the applicant commenced this proceedings alleging that the first respondent contravened the Fair Work Act 2009 (“FW Act”) because it:
a)failed to pay him his wages;
b)failed to pay him his accrued annual leave;
c)failed to make superannuation contributions on his behalf;
d)failed to provide him with written notice of termination or pay in lieu thereof;
e)failed to provide him with pay slips; and
f)took adverse action against him on the basis that he had exercised a workplace right.
The applicant also alleged that he had not been paid long service leave entitlements, in contravention of the Long Service Leave Act 1955 (NSW) (“LSL Act”).
Further, the applicant seeks declarations that the second respondent contravened the FW Act and the LSL Act, orders for the rectification of his unpaid entitlements, compensation for non-economic loss, and the imposition of pecuniary penalties.
On 5 June 2018 the Court was advised by email from the first respondent’s liquidator…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3766
Decision Date: 20 December 2019

CaseChat Overview and Summary

The applicant, Chambers, sought to join the respondent, The Trustee for Goanna Tracks Trust, as a third party in proceedings concerning alleged breaches of industrial instruments. Chambers claimed that the Trustee was liable as an accessory to the primary respondent's conduct, which involved the transfer of employment. The dispute centred on whether the Trustee's alleged actions constituted accessory liability for the primary respondent's breaches.

The central legal issue before the Court was the necessary content of an allegation of accessory liability in the context of industrial law. Specifically, the Court had to determine what a party seeking to join another as an accessory must plead to establish a prima facie case for such liability, particularly concerning the transfer of employment.

The Court reasoned that to establish accessory liability, the applicant must plead facts that demonstrate the alleged accessory had knowledge of the primary contravention and intended to assist in that contravention. Mere knowledge that a contravention might occur, or that the actions taken might facilitate a contravention, is insufficient. The applicant's pleading did not sufficiently particularise the Trustee's knowledge or intention to assist in the alleged breaches of industrial instruments.

Consequently, the Court dismissed the application to join the Trustee as a third party, finding that the pleadings did not disclose a sufficient cause of action for accessory liability.

Orders