FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577
File number(s): SYG 2006 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 28 June 2024 Catchwords: PRACTICE AND PROCEDURE – Where in a claim for relief under the Fair Work Act 2009 (Cth) after declarations of contraventions have been made the first respondent resolves to go into voluntary liquidation – where applicant applies under s 500(2) of the Corporations Act 2001 (Cth) for leave to proceed against the first respondent for the purpose of applying for an order that the first respondent pay pecuniary penalties – whether Federal Circuit and Family Court of Australia (Division 2) has jurisdiction under s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) over the matter that arises out of the applicant’s seeking to apply for leave to proceed under s 500(2) of the Corporations Act 2001 (Cth) - Federal Circuit and Family Court of Australia (Division 2) has jurisdiction – whether leave to proceed should be granted – leave to proceed refused.
INDUSTRIAL LAW – Assessment of pecuniary penalties against second respondent for contraventions of s 44 of the Fair Work Act 2009 (Cth) – payment of pecuniary penalties ordered.
Legislation: Corporations Act 2001 (Cth) ss 58AA(2), 500(2), 553B
Crimes Act 1958 (Vic) s 21A(2)
Fair Work Act 2009 (Cth) ss 12, 44, 546, 117(2), 557, 539(1)
Federal Circuit Court of Australia Act 1999 (Cth) s 18
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Federal Court of Australia Act 1976 (Cth) ss 32, 86AA(4)
Trade Practices Act 1974 (Cth) s 51AB
Cases cited: Berlyn v Brouskos [2002] VSC 377
Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082
Donnola v Silverleaf Constructions Co Pty Ltd [2024] FedCFamC2G 223
Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Safecorp Security Group Pty Ltd & Anor (No.3) [2019] FCCA 1756
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Ogawa v Federal Magistrate Phipps [2006] FCA 361
Palmer v Ayres; Ferguson v Ayres [2017] HCA 5
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457
Rana v Google Inc [2017] FCAFC 156
Rolfe v Pinnacle ACT Pty Ltd [2024] FedCFamC2G 285
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Shergold v Tanner [2002] HCA 19
The BKH Contractors Case (No 2) [2018] FCA 1563
The Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54
Allsop, Justice James, “An Introduction to the Jurisdiction of the Federal Court of Australia” (FCA) [2007] FedJSchol 15
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- Case
- [2024] FedCFamC2G 577
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case revolved around the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under section 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to hear the application for leave to proceed against the first respondent. The court had to interpret the meaning of "associated" in section 32 of the FCA Act (and section 134 of the FCFC Act) and determine if the application for leave to proceed constituted an associated matter. Additionally, the court was required to decide whether leave should be granted to the applicant to proceed with the claim for pecuniary penalties against the first respondent.
The court examined the interpretation of "associated" in previous cases and concluded that the meaning of this term, as articulated by Gibbs J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, suggested that matters are associated if they arise from substantially the same or closely connected facts. The court also noted the uncertainty expressed in Rolfe v Pinnacle ACT Pty Ltd regarding the application of section 134 in relation to matters under the Corporations Act. However, the court determined that section 134 of the FCFC Act could still apply to associated matters even if other courts had exclusive jurisdiction over matters arising under the Corporations Act, provided there was an associated matter before the court. Ultimately, the court found that it did have jurisdiction over the matter and refused to grant leave to proceed. The court did, however, order the payment of pecuniary penalties against the second respondent for contraventions of section 44 of the Fair Work Act 2009 (Cth).
The court ordered that the second respondent, Silverleaf Constructions Co Pty Ltd, pay the pecuniary penalties as assessed against it for the contraventions of section 44 of the Fair Work Act 2009 (Cth). The court did not grant leave to the applicant, Donnola, to proceed against the first respondent, Silverleaf Constructions Co Pty Ltd, in its application for pecuniary penalties. The applicant's application for leave to proceed was refused.
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Background to the litigation
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Decision
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Ratio Decidendi
Legal Principle Established
The meaning of “associated” in s 32 of the FCA Act (and s 134 of the FCFC Act) has not been much discussed in the authorities. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, however, Gibbs J said that:[6]Speaking generally it may be said that, given identity of parties, one matter is associated with another if the two matters arise out of substantially the same, or closely connected, facts.[6] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457, at pages 495-496Does s 134 extend to an associated matter under the Corporations Act? In Rolfe v Pinnacle ACT Pty Ltd Deputy Chief Judge Mercuri found there was doubt about whether this Court had jurisdiction under s 134 of the FCFC Act in relation to a matter arising under the Corporations Act.[7] The doubt arose from the judgment of Finkelstein J in Ogawa v Federal Magistrate Phipps.[8] In that case the question was whether this Court (then known as the Federal Magistrates Court) had jurisdiction under s 18 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) (being the predecessor of s 134 of the FCFC Act) in relation to a matter based on a contravention of s 51AB of the Trade Practices Act 1974 (Cth) (TPA) in circumstances where this Court did have jurisdiction in relation to a matter based on an alleged contravention of s 52(1) of the TPA. Finkelstein J held this Court did not have jurisdiction under s 18 of the FCC Act because s 86AA(4) of the TPA provided that the jurisdiction s 86(1) conferred on the Federal Court under Part VI of the TPA was exclusive, subject to the jurisdiction s 86(1A) of the TPA conferred on this Court, which did not include claims based on contraventions of s 52AB. His Honour said:[9]I think the intent of this provision is clear. Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater [sic] has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the Federal Magistrates Court Act (the “associated jurisdiction” provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court’s associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.[7] Rolfe v Pinnacle ACT Pty Ltd [2024] FedCFamC2G 285[8] Ogawa v Federal Magistrate Phipps [2006] FCA 361 [9] Ogawa v Federal Magistrate Phipps [2006] FCA 361, at [12] It does not follow from the fact that s 58AA of the Corporations Act confers exclusive jurisdiction on courts that do not include this Court in relation to matters that arise under the Corporations Act that s 134 of the FCFC Act would not apply to such matters if there is before this Court a matter that is associated with a matter that arises under the Corporations Act. Section 134 of the FCFC Act is premised on some other court or courts having jurisdiction over a matter in relation to which this Court does not have jurisdiction, which necessarily implies that, but for s 134 of the FCFC Act, the jurisdiction of the other court or courts over such matter would be exclusive of the jurisdiction of this Court.