Fair Work Ombudsman v Devine Marine Group Pty Ltd - [2013] FCA 1135

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135

Citation: Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135

Parties: FAIR WORK OMBUDSMAN v DEVINE MARINE GROUP PTY LTD, BRETT BARRY DEVINE and ARTHUR BOUCAUT-JONES

File number: SAD 209 of 2013

Judge: WHITE J

Date of judgment: 4 November 2013

Catchwords:
PRACTICE AND PROCEDURE – application by third respondent for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) – whether pleadings of accessorial liability have reasonable prospect of success – whether essential elements of causes of action adequately pleaded – whether summary judgment appropriate in favour of one of three respondents.

PRACTICE AND PROCEDURE – application by third respondent to strike out parts of statement of claim pursuant to Rule 16.21 of the Federal Court Rules 2011 – whether material facts necessary to give the opposing party fair notice of the case to be answered are stated.

EMPLOYMENT – degree of knowledge required to establish accessorial liability under s 550 of the Fair Work Act 2009 (Cth) – whether question suitable for determination on a summary basis.

Held: Paragraphs of the statement of claim are struck out, with leave to the applicant to re-plead. Summary judgment and strike out applications otherwise dismissed.

Legislation: Fair Work Act 2009 (Cth), ss 45, 46, 535, 546, 550, 570, 712
Federal Court of Australia Act 1976 (Cth), ss 31A, 32AB
Federal Court Rules 2011, rules 16.01, 16.02, 16.21
Federal Magistrates Court Act 1999 (Cth), s 45

Cases cited: Ahern v The Queen (1988) 165 CLR 87 referred to
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274 referred to
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 referred to
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 referred to
Giorgianni v The Queen (1985) 156 CLR 473 referred to
Hummerstone v Leary [1921] 2 KB 664 referred to
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 referred to
James v ANZ Banking Group Ltd (1986) 64 ALR 347 referred to
R v Henderson v Panagaris (1984) 37 SASR 82 referred to
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 referred to
Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 referred to
Yorke v Lucas (1985) 158 CLR 661 referred to

Date of hearing: 24 September 2013

Place: Adelaide

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 75

Counsel for the Applicant: Mr E Stratton-Smith

Solicitor for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr S Mitchell

Solicitor for the Respondents: Corporate Network Legal

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

SAD 209 of 2013

BETWEEN:
FAIR WORK OMBUDSMAN
Applicant

AND:
DEVINE MARINE GROUP PTY LTD
First…

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: [2013] FCA 1135
Decision Date: 4 November 2013

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Devine Marine Group Pty Ltd and two other respondents, including Capt Boucaut-Jones, for alleged contraventions of the Fair Work Act 2009 (Cth). The FWO sought summary judgment and also sought to strike out parts of the statement of claim. The respondents challenged the sufficiency of the pleadings and argued that the FWO had no reasonable prospect of success on the claims. The central legal issue was whether the FWO's pleadings adequately disclosed the material facts necessary to make out the causes of action relied upon and whether the claims had a reasonable prospect of success. The court held that certain paragraphs of the statement of claim were insufficiently particularised and ambiguous, failing to adequately plead the essential elements of the accessorial liability claims. The court held that while the deficiencies in the pleadings were capable of being rectified, it was not appropriate to grant summary judgment at this stage. Instead, the court ordered that specific paragraphs of the statement of claim be struck out, with leave to the FWO to re-plead in an appropriate manner. The court also dismissed the application to strike out other parts of the statement of claim and denied the respondents' application for costs. The court ordered that the FWO must re-plead the struck out paragraphs by a specified date, and that the respondents must file any amended defence by another specified date.

Orders

Orders of the court

1. Paragraphs 63.9, 64 and 65 of the amended statement of claim be struck out.

2. The applicant has leave to file and serve a further amended statement of claim, re-pleading in an appropriate manner the allegations presently in paragraphs 63.9, 64 and 65.

3. The leave granted by Order 2 is to be exercised by 4.00pm on Monday, 11 November 2013.

4. The respondents must file and serve any amended defence by 4.00pm on Monday, 18 November 2013.

5. The respondents’ application that the costs reserved in the Federal Circuit Court be determined by this Court is declined.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these circumstances, I decline, at this stage, to deal with the respondents’ costs application. I will, instead, entertain an application on the delivery of judgment for the proceeding to be transferred back to the FCC in order that the FCC Judge who heard the discovery application may determine the reserved question of costs.Conclusion For the reasons given, I order that [63.9], [64] and [65] of the amended statement of claim be struck out. The FWO has leave to file a further amended statement of claim re-pleading, in an appropriate form, the allegations presently contained in those paragraphs. That leave must be exercised by Monday, 11 November 2013 and any amended defence by the respondents must be filed and served by 18 November 2013.

Ratio Decidendi

Legal Principle Established

The Award contains provisions requiring employers to pay wages weekly or fortnightly (cl 34.1), to pay minimum wages (cl 24.1), to pay a casual loading to casual employees (cl 14.1) and to pay penalty rates for weekend work (cl 40.7 and cl 40.8).Consideration The critique of Capt Boucaut-Jones of the amended statement of claim had a dual aspect. Counsel submitted first, that the statement of claim did not comply with the pleading rules as it did not plead the material facts necessary to make out the causes of action on which the FWO relies. Secondly, counsel contended that the conspiracy pleaded in [68] of the amended statement of claim was not the kind of conspiracy to which s 550(2)(d) refers. Rule 16.02(1)(d) of the Federal Court Rules 2011 (pursuant to which the amended statement of claim was filed) requires a pleading to state the material facts on which a party relies which are necessary to give the opposing party fair notice of the case to be made against that party at trial. Rule 16.02(2) requires that a pleading not be evasive or ambiguous, or be likely to cause prejudice, embarrassment or delay in the proceeding, or fail to disclose a reasonable cause of action. In my opinion, counsel for Capt Boucaut-Jones has made good the submission that the statement of claim fails to disclose a reasonable cause of action in relation to the alleged aiding and abetting of contraventions and the alleged knowing concern in contraventions. As already noted, with the exception of [63.4] and [63.9], the amended statement of claim does not provide any particulars of the conduct said to amount to the aiding, abetting etc or the being knowingly concerned in the alleged contraventions. That is a fundamental defect. To the extent that the FWO relies upon the conduct alleged in [63.9] for this purpose, I consider that that subparagraph is ambiguous and likely to cause prejudice. The word “purported” and the three expressions in quotation marks hint at an allegation that the matters to which reference was made were not actual or legitimate but do not make a firm allegation to that effect. If the FWO intends to allege that Capt Boucaut-Jones provided certificates noting matters which were not as certified, or that the certificates were false to the knowledge of Capt Boucaut-Jones, then he should say so. If the allegation is that Capt Boucaut-Jones certified as to the completion of a training program, when no such program had been provided or completed, then that should be pleaded explicitly. Absent some plea or pleas of this character, there is uncertainty as to how the conduct pleaded in [63.9] can be a particular of the accessorial conduct alleged. However, it does not follow that on this account the application under s 31A should be upheld. The deficiency in the pleading is capable of being rectified. I would instead give the FWO the opportunity to re-plead, in an appropriate manner, the allegation of accessorial liability to address these shortcomings. Counsel’s next submission related to the pleading of Capt Boucaut-Jones’ knowledge of the contraventions. Counsel referred to the well-known passages in Giorgianni v The Queen (1985) 156 CLR 473 and Yorke v Lucas (1985) 158 CLR 661 establishing that intentional participation in a contravention of a provision by aiding or abetting, or by being knowingly concerned in the contravention, requires actual, rather than constructive, knowledge of the essential matters making up the contravention. In addition, counsel drew attention to the statement of Greenwood J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274 at [44] that:Accessorial liability requires a pleading of actual knowledge on the part of the accessory of each and every element of the offence or contravening conduct … and an election to engage in the relevant conduct.In that case, a respondent was charged with having assisted in the contravention by a company of a provision in the Workplace Relations Act 1996 (Cth) requiring employers, in defined circumstances, to permit unions a right of entry. Justice Greenwood held that the applicant had to establish that the defendant “had knowledge that the permit holders enjoyed a right of entry and, notwithstanding that knowledge, he set about engaging in the contravening conduct” (at [45]). The absence of a plea of those matters meant, so Greenwood J held, that that particular allegation in the statement of claim had no reasonable prospect of success.

Citation:	Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135
Parties:	FAIR WORK OMBUDSMAN v DEVINE MARINE GROUP PTY LTD, BRETT BARRY DEVINE and ARTHUR BOUCAUT-JONES
File number:	SAD 209 of 2013
Judge:	WHITE J
Date of judgment:	4 November 2013
Catchwords:	PRACTICE AND PROCEDURE – application by third respondent for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) – whether pleadings of accessorial liability have reasonable prospect of success – whether essential elements of causes of action adequately pleaded – whether summary judgment appropriate in favour of one of three respondents. PRACTICE AND PROCEDURE – application by third respondent to strike out parts of statement of claim pursuant to Rule 16.21 of the Federal Court Rules 2011 – whether material facts necessary to give the opposing party fair notice of the case to be answered are stated. EMPLOYMENT – degree of knowledge required to establish accessorial liability under s 550 of the Fair Work Act 2009 (Cth) – whether question suitable for determination on a summary basis. Held: Paragraphs of the statement of claim are struck out, with leave to the applicant to re-plead. Summary judgment and strike out applications otherwise dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 45, 46, 535, 546, 550, 570, 712 Federal Court of Australia Act 1976 (Cth), ss 31A, 32AB Federal Court Rules 2011, rules 16.01, 16.02, 16.21 Federal Magistrates Court Act 1999 (Cth), s 45
Cases cited:	Ahern v The Queen (1988) 165 CLR 87 referred to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274 referred to Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 referred to Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 referred to Giorgianni v The Queen (1985) 156 CLR 473 referred to Hummerstone v Leary [1921] 2 KB 664 referred to J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 referred to James v ANZ Banking Group Ltd (1986) 64 ALR 347 referred to R v Henderson v Panagaris (1984) 37 SASR 82 referred to Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 referred to Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 referred to Yorke v Lucas (1985) 158 CLR 661 referred to
Date of hearing:	24 September 2013
Place:	Adelaide
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	75
Counsel for the Applicant:	Mr E Stratton-Smith
Solicitor for the Applicant:	Office of the Fair Work Ombudsman
Counsel for the Respondents:	Mr S Mitchell
Solicitor for the Respondents:	Corporate Network Legal

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	SAD 209 of 2013

BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	DEVINE MARINE GROUP PTY LTD First…