Dahler v Australian Capital Territory

[2015] FCCA 30

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAHLER v AUSTRALIAN CAPITAL TERRITORY & ANOR [2015] FCCA 30

Catchwords:
PRACTICE AND PROCEDURE – Application to join an additional respondent – respondent previously removed and prior application to add the respondent again rejected – decision upheld on appeal – no basis for fresh application.

Legislation:

Fair Work Act 2009 (Cth)

Dahler v Australian Capital Territory [2014] FCCA 1675
Dahler v Australian Capital Territory [2014] FCA 946
Dahler v Australian Capital Territory (No 2) [2014] FCA 1154

Applicant: CLINTON DAHLER

First Respondent: AUSTRALIAN CAPITAL TERRITORY

Second Respondent: MINISTER FOR DISABILITY, CHILDREN & YOUNG PEOPLE (ACT)

File Number: CAG 46 of 2013

Judgment of: Judge Driver

Hearing date: 14 November 2014

Date of Last Submission: 23 December 2014

Delivered at: Sydney, via telephone to Canberra

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: Ms J Keys

Counsel for the Respondents: Dr D Jarvis

Solicitors for the Respondents: ACT Government Solicitor

ORDERS

1. The Application in a Case filed on 31 October 2014 is dismissed.

2. Paragraph 24 of the further amended statement of claim filed on 30 September 2014 is struck out.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 46 of 2013

CLINTON DAHLER

Applicant

And

ACT GOVERNMENT

First Respondent

MINISTER FOR DISABILITY, CHILDREN & YOUNG PEOPLE (ACT)

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. By Application in a Case filed on 31 October 2014, the applicant (Mr Dahler) seeks leave pursuant to rule 11.02 of the Federal Circuit Court Rules 2001 (Cth) to add a company called CPM Reviews Pty Ltd (CPM) as the third respondent in these proceedings. Mr Dahler also seeks an order that the proposed third respondent (if joined) file a defence. The application is opposed by the respondents and by CPM.

2. The issue of whether CPM should be a respondent to the principal application has been unnecessarily vexed and has unnecessarily prolonged interlocutory arguments in the case.  The original application filed on 8 August 2013 sought relief against the ACT Government and CPM under the Fair Work Act 2009 (Cth) (Fair Work Act). Judge Neville ordered that CPM be removed as a party. Subsequently, Mr Dahler sought to re‑join CPM as the third respondent. That application was dismissed with costs[1].  Mr Dahler appealed to the Federal Court against that order, as well as other interlocutory orders made by Judge Neville.  The appeal also raised an issue of apprehended bias.  At that point the matter was transferred to my docket as a matter of administrative convenience.

   [1] Dahler v Australian Capital Territory [2014] FCCA 1675

3. Mr Dahler’s appeal to the Federal Court was wholly unsuccessful[2].  Katzmann J in that case set out the background, so far as is presently relevant, at [3]-[25].  At [67]-[87] Katzmann J dealt with the refusal of Judge Neville to join CPM as a party.  Her Honour stated at [87] that there was no reason to doubt the correctness of Judge Neville’s decision to refuse to re-join CPM. 

   [2] Dahler v Australian Capital Territory [2014] FCA 946

4. In a separate judgment[3] Katzmann J made a personal costs order against counsel for Mr Dahler in relation to the Federal Court appeal. 

   [3] Dahler v Australian Capital Territory (No 2) [2014] FCA 1154

Consideration of the issues

1. I heard argument on the Application in a Case on 14 November 2014.  The respondents made oral and written submissions calling for the dismissal of the application.  CPM had also filed a submission drawing attention to the burden that would be imposed upon it should it once again become a respondent.  Counsel for Mr Dahler sought the opportunity to provide written submissions in reply.  I gave leave for those submissions in reply to be filed within 7 days.  That period was prolonged, with my agreement.  The submissions were filed on 19 December 2014.  The respondents filed additional submissions on 23 December 2014.

2. In dealing with the Application in a Case, I have had regard to the Fair Work legislation, the submissions of the parties, the report prepared by CPM and an affidavit prepared by Mr Dahler in the Federal Court proceedings.  I have also had regard to the earlier decisions of this Court and the Federal Court.

3. Having regard to the history of this litigation to date, it is surprising that Mr Dahler, through his counsel, insists on pressing the issue of joining CPM. As was made clear by Judge Neville and Justice Katzmann, CPM should only be a respondent in the principal proceedings if there is a proper basis under the Fair Work Act for taking proceedings against it. The judgment of Judge Neville, left undisturbed (indeed approved) by Katzmann J, was that there was no such basis. It would follow that the only basis upon which the present application could be entertained would be if something of substance had changed. Counsel for Mr Dahler pressed upon me that circumstances had changed in that a new statement of claim had been filed and that CPM needed to be joined as a party in order to deal with the issue of accessorial liability under the Fair Work Act.

4. I accept that an amended statement of claim has been filed.  That was a necessary consequence of the first Federal Court decision by Katzmann J.  Paragraph 24 of the further amended statement of claim filed on 30 September 2014 makes a claim of accessorial liability against CPM.  In my opinion, there is nothing new in that allegation.  It is in my opinion not materially different from the allegation that had been made earlier.  The written submissions of counsel for Mr Dahler attempt to revisit earlier arguments on the issue.

5. CPM’s role in this matter was to prepare a report.  That is what it did.  The report may have been used by Mr Dahler’s employer to his detriment but, if so, it is the employer who should be accountable, not the person who prepared the report.  There is simply no basis for the allegation that CPM was involved in the termination of Mr Dahler’s employment by reason of preparing that report.

6. In my opinion, there is nothing new that would support the claim against CPM or its joinder as a respondent. 

7. I will order that the Application in a Case be dismissed and that paragraph 24 of the further amended statement of claim be struck out.

8. I will hear the parties as to any issue of costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 January 2015