FAVAGER v MSW NO 1 Pty Ltd Trading as Macarthur and South West United FC

[2020] FCCA 2301

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAVAGER v MSW NO 1 PTY LTD TRADING AS MACARTHUR & SOUTH WEST UNITED FC & ORS [2020] FCCA 2301

Catchwords:
INDUSTRIAL LAW – Costs – relevant considerations.

Legislation:

Fair Work Act 2009 (Cth), s.570

Applicant: NEIL FAVAGER

First Respondent: MSW NO 1 PTY LTD T/A MACARTHUR & SOUTH WEST UNITED FC

Second Respondent: GINO MARRA

Third Respondent: SAM KRSLOVIC

File Number: SYG 1234 of 2020

Judgment of: Judge Cameron

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Sydney

Delivered on: 7 August 2020

REPRESENTATION

Counsel for the Applicant: Mr A. See

Solicitors for the Applicant: NB Lawyers

Counsel for the Respondents: Mr S. McIntosh

Solicitors for the Respondents: StevensVuaran Lawyers

ORDERS

1. Part G of the Form 4 claim form filed 22 May 2020 be struck out.

2. The applicant file and serve within 7 days an affidavit annexing proposed points of claim.

3. The application in a case filed 25 July 2020 be relisted for further argument on 24 August 2020 at 2:15pm.

4. The applicant pay the respondents’ costs to date of and incidental to the application in a case filed on 25 July 2020, those costs to be agreed or assessed by the Court in accordance with the scale appearing in part 1 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

5. The parties have liberty to apply in relation to the quantum of costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1234 of 2020

NEIL FAVAGER

Applicant

And

MSW NO 1 PTY LTD T/A MACARTHUR & SOUTH WEST UNITED FC

First Respondent

GINO MARRA

Second Respondent

SAM KRSLOVIC

Third Respondent

REASONS FOR JUDGMENT

1. This is an industrial proceeding alleging contraventions of general protection provisions of the Fair Work Act 2009 (“FW Act”). The proceeding commenced in May and Part G of the Form 4 claim form sets out a detailed exposition of matters associated with the applicant’s claim against the respondents. The respondents have complained about the manner in which the applicant’s claims have been articulated and did so at an earlier directions hearing. Responsive to that, orders were made that there would be a request for and provision of further and better particulars, which I understand has occurred. However, it seems that those particulars have not addressed the respondents’ concerns sufficiently.

2. The evidence is that last night the applicant committed himself to a repleading of his claim.  That concession arose out of the respondents’ application in a case filed 25 July 2020, which is the matter presently before the Court.  The respondents have sought the striking out of either the pleading or the proceedings because of the deficiencies in the way the claim has been articulated to date.  The applicant now, conceding a need to approach the matter in a fresh way, seeks the leave of the Court to do so and has, in substance, gained the respondents’ consent to the idea if not to the precise terms of any new document.

3. I will make orders in relation to the issue of amendment.  Before I do that though I should say that I think it would be inappropriate to grant a general right to file an amended document.  I believe it would be more practical and useful if the applicant filed and served an affidavit, annexing a proposed amended pleading, and that the present application in a case stand over to a future date so that the proposed amendment may be considered.

4. The issue remaining to be determined is the question of costs, which has been raised by the respondents. Being an industrial matter, the Court is restricted by s.570 of the FW Act to particularly limited circumstances in which an order for costs may be made. Counsel for all parties have made detailed and cogent submissions on the issue and I have concluded that, in circumstances where an applicant has to completely recast the presentation of his claim, it is appropriate to characterise his failure to plead adequately in the first place, and then to act substantively in response to the respondents’ complaints about his pleading, as unreasonable. In that regard, it should again be noted that the respondents’ concerns about the pleading were not allayed by the further and better particulars, which were provided.

5. Further, although I accept based, on Mr See’s submissions for the applicant, that some potential amendment was flagged last month, the argument which the applicant makes, that he should have been pressed by the respondents to act on that intimation, is not one which persuades me that his actions have not been unreasonable.  It is the applicant’s proceeding.  It is his responsibility to articulate his claim in an intelligible way and it is not the respondents’ obligation to make sure that he does.  Consequently, the order will be that the applicant pay the respondents’ costs of and incidental to the application in a case filed on 25 July 2020.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 20 August 2020