Crosthwaite v National Jet Systems Pty Ltd
[2007] FMCA 1573
•23 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROSTHWAITE v NATIONAL JET SYSTEMS PTY LTD | [2007] FMCA 1573 |
| INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Joinder of parties. |
| Federal Magistrates Act 1999 (Cth), ss.3, 14, 18 and 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03 and 11.02 Workplace Relations Act 1996 (Cth), s.719(5) |
| A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247; [2005] FCA 1658 BHP Billiton Ltd v Schultz & Others (2004) 221 CLR 400; [2004] HCA 61 Goodall v Nationwide News [2007] FMCA 218 Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 |
| Applicant: | KERREN MAREE CROSTHWAITE |
| Respondent: | NATIONAL JET SYSTEMS PTY LTD |
| File Number: | PEG 109 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 August 2007 |
| Date of Last Submission: | 23 August 2007 |
| Delivered at: | Perth |
| Delivered on: | 23 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Ellery |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondent: | Mr H.J. Dixon SC and Ms E.D Perry |
| Solicitors for the Respondent: | EMA Legal |
ORDERS
An order pursuant to Part 11 of the Federal Magistrates Court Rules 2001 (Cth) joining Andrew King to the proceedings as First Cross Respondent.
An order pursuant to Part 11 of the Federal Magistrates Court Rules 2001 (Cth) joining Lyndon Kruger as Second Cross Respondent.
National Jet Systems Pty Ltd as Cross Applicant file and serve Points of Claim by 4.00 pm on 31 August 2007.
The First and Second Cross Respondents file and serve Points of Defence and any Cross-Claim by 4.00 pm on 7 September 2007.
The Cross Applicant file and serve any Points of Reply and any Defence to any Cross-Claim filed by the First or Second Cross Respondents by 4.00 pm on 11 September 2007.
The Cross Application be referred to mediation before a Registrar of this Court no earlier than 12 September 2007.
The Cross Applicant file and serve any further affidavits it intends to rely on by 4.00 pm on 11 September 2007.
The First and Second Cross Respondents file and serve any affidavits they intend to rely on by 4.00 pm on 5 October 2007.
The Cross Applicant file and serve any affidavits in response to the First and Second Respondents Cross-Claim by 4.00 pm on 10 October 2007.
The Cross Application be heard together with the substantive application in PEG 109/2007 and PEG 122/2007.
Service of all documents referred to in these orders be effected upon the Applicant.
There be liberty to apply on 48 hours notice.
The parties have liberty to apply with respect to discovery on 48 hours notice.
The Return of Subpoenas be adjourned to a date to be fixed before a Registrar of this Court.
Any question of costs be reserved
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 109 of 2007
| KERREN MAREE CROSTHWAITE |
Applicant
And
| NATIONAL JET SYSTEMS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
This is an application for joinder of Messrs King and Kruger to these proceedings by the respondent. The substantive application is one in which orders are sought under s.719(5) of the Workplace Relations Act 1996 (Cth) for loss or damage as a result of an alleged breach of an Australian Workplace Agreement and for the imposition of penalties. The joinder application seeks to join Messrs King and Kruger under the provisions of part 11 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) and, particularly relevant to the application as it presently stands, r.11.02. In the points of claim, filed by the applicant, there is reference in paragraphs 31(b), 31(d) and 32(b) to matters concerning the payment of $15,000 towards the cost of training on Boeing 717 aircraft, the cost of training being, the cost of training of Messrs King and Kruger respectively. Those paragraphs provide as follows:
31(b) – The proposed AWA contained significant differences from the pre-reform AWA that was in place, in particular a requirement that Mr King pay $15,000.00 towards the cost of training on Boeing 717 aircraft by way of a lump sum or salary sacrifice over two years and agree to a salary reduction. The $15,000.00 would be reimbursed by the Respondent in two payments to be made in January 2008 and January 2009 but subject to certain conditions being met, namely, that the aircraft leases were extended and Mr King was employed at the time of reimbursement.
31(d) – By letter dated 28 September 2005 to Mr Roberts, Mr King set out his concerns about signing the Proposed AWA, specifically, that he was unaware of the conditions attached to the reimbursement of the $15,000.00 until after he had completed the Boeing 717 aircraft training and that he had never agreed to such conditions, verbally or otherwise.
32(b) – The Proposed AWA contained significant differences from the pre-reform AWA that was in place, in particular a requirement that Mr Kruger pay $15,000.00 towards the cost of training on Boeing 717 aircraft by way of lump sum or salary sacrifice over two years and agree to a salary reduction. The $15,000.00 would be reimbursed by the Respondent in two payments to be made in January 2008 and January 2009 but subject to certain conditions being met, namely, that the aircraft leases were extended and Mr Kruger was employed at the time of reimbursement.
The joinder application is supported by the affidavit of Ms Perry. Ms Perry’s affidavit, filed on 10 August 2007 and sworn on 9 August 2007, makes reference to the respondent’s instructions that King and Kruger both entered into contracts with the respondent, independent of any Australian Workplace Agreement, to pay $15,000 towards the cost of their endorsement training on Boeing 717 aircraft and that King and Kruger both completed the endorsement training, that the respondent paid the $30,000 in respect of the endorsement training, and that neither King nor Kruger have paid the $15,000 towards the cost of their endorsement training.[1]
[1] Perry’s Affidavit, 9 August 2007, paras 6-7.
Paragraphs 2 to 6 of the grounds of application refer to various aspects of the controversy in this matter as follows:
Ground 2 - One aspect of the controversy in the proceedings is the continued application after 1 July 2005 of an AWA made by the Respondent and King on 18 March 2004.
Ground 3 – Another aspect of the controversy in the proceedings is the continued application after 1 July 2005 of an AWA made by the Respondent and Kruger.
Ground 4 – A third aspect of the controversy in the proceedings is the circumstances by which King and Kruger were offered an AWA in 2005.
Ground 5 – A fourth aspect of the controversy in the proceedings is the circumstances by which King and Kruger were provided with B717 endorsement training in 2005.
Ground 6 – A fifth aspect of the controversy in the proceedings is the agreement in 2005 of King and Kruger to contribute $15,000.00 towards their B717 endorsement training in 2005.
Those paragraphs do refer to matters which are aspects of the controversy in these proceedings. The grounds of application then go on to assert that each aspect of the controversy is related, that each aspect of the controversy constitutes part of a single matter and that each aspect of the controversy arose out of a common sub-stratum of fact.
The application for joinder is opposed by Messrs King and Kruger. Essentially, the opposition is premised on the assertion that the joinder application has no bearing on the defence and, secondly, that to join Messrs King and Kruger would be to subject them to injustice.
The question of joinder ought be determined by whether or not there is an overlap of facts and, as a consequence, an overlap of contestable legal issues. There is such an overlap, and Counsel for the respondent cogently took the Court, in submissions in reply, to one aspect of that with respect to the issue of duress and the contracts. Otherwise the matters raised by the respondent relate to facts in the points of claim and the Court has already referred to paragraph 31(b) and 31(d) and paragraph 32(b) of the points of claim. The matters raised by the joinder application are part of a single factual matrix or single continuum of facts.
With respect to unfairness, it is the case that case management must sway before the interests of justice. The interests of justice are, of course, determined by reference to the interests of all the parties who are involved or, as in this case, are potentially to be involved in any litigation.[2] In this case, the interests of justice require that:
a)what is, effectively a single continuous matter; and
b)what is a matter in which there is, it would seem, a significant evidentiary overlap with respect to the matters involved,
be heard together.
[2] Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 and BHP Billiton Ltd v Schultz & Others (2004) 221 CLR 400; [2004] HCA 61.
That view is reinforced by two other factors. First, that in determining whether or not the joinder application ought be granted, the Court needs to be mindful of avoiding the possibility of there being conflicting decisions of different courts if different proceedings are taken, as a consequence of the rejection of the joinder application, and the difficulties that would be imposed on all parties by two separate sets of litigation. The Court is not persuaded by the arguments of Counsel for Messrs King and Kruger that a greater injustice will be done by them being joined to these proceedings than by the Court rejecting the application for joinder. As Counsel for the respondent said, it is, in this case an unavoidable consequence of the matter that King and Kruger will have to sit through the proceedings in this Court if they are joined. Having regard to s.14 of the Federal Magistrates Act 1999 (Cth) (“FM Act”) the Court considers that it is appropriate that the matters, subject of the joinder application, be heard as part of a single hearing in this Court with the matters which are the subject of the substantive application. That will avoid a multiplicity of hearings and enable a single continuous matter to be heard in one hearing. The Court refers to and adopts, in that regard, the reasoning in the Silvestri case at paragraphs 6 to 12.[3] Secondly, the view that the Court has reached, is supported by a consideration of the objects of the FM Act in s.3, the objects of the FMC Rules in r.1.03, and also the associated jurisdiction provisions of s.18 and the procedural provisions of s.42 of the FM Act.[4]
[3]A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247; [2005] FCA 1658 per Gyles J at paras 6-12 (“Silvestri”).
[4] Goodall v Nationwide Newspapers [2007] FMCA 218 at para 21 per Lucev FM.
In those circumstances the Court proposes to make orders accordingly.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 14 September 2007
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