Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 4)

Case [2014] FCA 249

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 4)
[2014] FCA 249

Citation: Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 4) [2014] FCA 249
Parties: FAIR WORK OMBUDSMAN v OFFSHORE MARINE SERVICES PTY LTD (ACN 109 339 433) and MARITIME UNION OF AUSTRALIA
File number: WAD 251 of 2011
Judge: GILMOUR J
Date of judgment: 19 March 2014
Catchwords: PRACTICE AND PROCEDURE – application for leave under r 15.05 of the Federal Court Rules 2011 (Cth) to file notice of cross-claim out of time – leave granted.
Legislation: Federal Court Rules 2011 (Cth) rr 15.01, 15.04, 15.05
Cases cited: Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 3) [2013] FCA 1391
Date of hearing: Heard on the papers
Place: Perth
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 6
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Second Respondent: W G McNally Jones Staff

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 251 of 2011
BETWEEN:

FAIR WORK OMBUDSMAN
Applicant
AND:

OFFSHORE MARINE SERVICES PTY LTD
(ACN 109 339 433)
First Respondent

MARITIME UNION OF AUSTRALIA
Second Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

19 MARCH 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The second respondent be granted leave under r 15.05 of the Federal Court Rules 2011 (Cth) to file a notice of cross-claim in accordance with the proposed notice of cross-claim annexed to the application.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 251 of 2011
BETWEEN:

FAIR WORK OMBUDSMAN
Applicant
AND:

OFFSHORE MARINE SERVICES PTY LTD
(ACN 109 339 433)
First Respondent

MARITIME UNION OF AUSTRALIA
Second Respondent

JUDGE:

GILMOUR J

DATE:

19 MARCH 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The second respondent, Maritime Union of Australia (MUA), in an amended interlocutory application dated 12 March 2014, has applied for leave under r 15.05 of the Federal Court Rules 2011 (Cth) to file a notice of cross-claim in accordance with the proposed notice of cross-claim annexed to the application. The application is supported by an affidavit of Nathan Marlborough Keats sworn 12 March 2014.

  2. The draft cross-claim seeks to recover contribution from the first respondent, Offshore Marine Services Pty Ltd (OMS), in respect of any liability to pay compensation to Bruce and Lynne Love pursuant to the relief claimed in para 3A of the Further Amended Application filed by the applicant, Fair Work Ombudsman (FWO), in these proceedings and dated 18 December 2013.

  3. The MUA did not file a notice of cross-claim at the same time as the filing of its defence because, at the time of filing such defence and at all times until 18 December 2013, the FWO did not claim an order for the payment of compensation to Bruce and Lynne Love. Accordingly, the issue of contribution in respect of such compensation did not arise until well after the time prescribed by r 15.04.

  4. On 18 December 2013, the FWO filed and served the Further Amended Application pursuant to leave granted in Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 3) [2013] FCA 1391. In granting such leave the Court (at [19]) held that the MUA could, if it elected to do so, apply under r 15.01 to make a cross-claim against OMS seeking contribution. The Court (at [27]) expressly refrained from making any additional orders in order that the MUA may apply, if it so elects, to join the first respondent in a cross-claim.

  5. I have considered the draft statement of cross-claim and am satisfied that the proposed cross-claim is connected with the subject matter of the proceeding in a significant sense.

  6. I am satisfied that in the above circumstances it is appropriate to grant the leave sought.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       19 March 2014

Details
AGLC
Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 4) [2014] FCA 249
Case
[2014] FCA 249
Decision Date

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 4), the Maritime Union of Australia (MUA) applied for leave to file a notice of cross-claim out of time against Offshore Marine Services Pty Ltd (OMS) in the Federal Court of Australia. The MUA sought to recover contribution from OMS in respect of any liability to pay compensation to Bruce and Lynne Love, which arose after the initial claim by the Fair Work Ombudsman (FWO). The application was made under rule 15.05 of the Federal Court Rules 2011 (Cth), as the MUA had not filed a notice of cross-claim at the same time as its defence, due to the FWO not claiming compensation for the Loves until 18 December 2013.

The legal issue before the court was whether the MUA should be granted leave to file the cross-claim outside the prescribed time limit. The court had to consider whether the cross-claim was connected with the subject matter of the proceeding in a significant sense, and whether it was appropriate to grant the leave sought in the circumstances. The MUA argued that the cross-claim was directly related to the proceedings and that it was in the interests of justice to grant the leave. The OMS, on the other hand, contended that the MUA's application was an abuse of process and that it should not be allowed to file the cross-claim out of time.

Justice Gilmour granted the leave sought by the MUA, finding that the proposed cross-claim was connected with the subject matter of the proceeding in a significant sense. The court considered that in the circumstances, it was appropriate to grant the leave, as the issue of contribution for the compensation did not arise until after the time prescribed by rule 15.04. The court also noted that in granting leave in Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 3) [2013] FCA 1391, it had expressly refrained from making any additional orders, allowing the MUA to apply, if it so elected, to join the first respondent in a cross-claim. Justice Gilmour was satisfied that the proposed cross-claim was connected with the subject matter of the proceeding in a significant sense, and that it was appropriate to grant the leave sought.

As a result of the court's decision, the Maritime Union of Australia was granted leave to file a notice of cross-claim against Offshore Marine Services Pty Ltd. The court's order allowed the MUA to pursue its claim for contribution from OMS in respect of any liability to pay compensation to Bruce and Lynne Love. The court's decision in this case highlights the importance of considering the connection between a cross-claim and the subject matter of the proceeding, as well as the circumstances in which leave should be granted to file a cross-claim out of time.

Orders

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Background

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Evidence

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Decision

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