Gambaro v Mobycom Mobile Pty Ltd - [2020] FCCA 121

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v MOBYCOM MOBILE PTY LTD & ORS

[2020] FCCA 121

Catchwords:
INDUSTRIAL LAW – Application to amend statement of claim – application allowed – application to join party to proceeding – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.55, 550

Applicant:

MICHAEL ALEXANDER GAMBARO

First Respondent:

MOBYCOM MOBILE PTY LTD
(ACN 110 558 873)

Second Respondent:

SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)

Third Respondent:

CRAIG ANTHONY SOUTHAM

Fourth Respondent:

BONNY ERIN FARRELL

Fifth Respondent:

LINCOLN AARON BODLE

Sixth Respondent:

JAMES KENNETH HARRISON

File Number:

BRG 874 of 2017

Judgment of:

Judge Jarrett

Hearing date:

10 October 2019

Date of Last Submission:

10 October 2019

Delivered at:

Brisbane

Delivered on:

17 January 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondents:

Mr McAuliff

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicant file and serve a further amended statement of claim by 4:00pm on 14 February, 2020.
The respondents file and serve an amended response by 4:00pm on 13 March, 2020.
The application is adjourned to 3 April, 2020 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2017

MICHAEL ALEXANDER GAMBARO

Applicant

And

MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

First Respondent

SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)

Second Respondent

CRAIG ANTHONY SOUTHAM

Third Respondent

BONNY ERIN FARRELL

Fourth Respondent

LINCOLN AARON BODLE

Fifth Respondent

JAMES KENNETH HARRISON

Sixth Respondent

REASONS FOR JUDGMENT

This is an application by the applicant in the principal proceedings for an order that he have leave to file and serve an intended amended statement of claim, as he describes it. He also seeks leave to join a further respondent to the proceedings and he seeks orders for discovery.
The applicant’s principal proceedings arise out of what he says was an employment relationship and his case is that the employer breached the Fair Work Act 2009 (Cth) in a number of respects as well as breaching other duties that it owed to him.
The amendments that he wishes to effect to the statement of claim cover a number of matters. They are to include some statutory references, which is, it seems to me, not particularly objectionable. It is also to change in a fundamental way parts of his claim. In his pleading as it presently stands, he alleges that his employer was liable to pay him money for his work and the money liable to be paid is described in various ways or in various categories. And, by and large – although not entirely – his claim was that that money was paid.
One of the amendments that he wishes to effect is to change that plea to allege that he was not paid at all, and it arises in this way: he says that, despite having received money for his remuneration, paid by his employer as he would expect, the money that he received was paid by a third party; another entity which was not his employer. And so he says his employer has not discharged its obligations under the Fair Work Act or under its employment contract to pay him and is liable to make payments of that money to him.
In the course of argument, I raised with the applicant whether I understood his claim correctly, namely that, notwithstanding that he had received the remuneration that he said he ought to have received for his work, that the respondent employer was nonetheless liable to make further payments to him such that he would receive, effectively, the same money again. And his response was to the effect that it was his employer’s obligation to pay him and no one else’s.
I have considerable difficulty with that proposition. Whilst the obligation is on the employer to make payment or to have payment made, nothing to which I was taken suggested that an employer could not make an arrangement with another person to discharge the employer’s liability to the employee. That is to say, I was taken to nothing that would suggest that it was not a legitimate exercise for an employer to engage a third party to make payments to and on behalf of the employer to the employer’s employees.
But even if that is wrong, and even if the employer is obliged to make payment to the employee personally, as it seems to be the applicant’s case, it would mean that the applicant will receive – in large measure, at least – double payment for what it is that he alleges he did. That is as I understand the effect of his claim. And, if that were so, then the applicant would be, one might expect, liable to disgorge the first payment, given that it was made either under a mistake of fact or a mistake of law. But that, I suppose, is a matter for the entity that had made the payments. Having said that, the entity that has made or is making the payments would not be interested in clawing back that money from the applicant if it has already been reimbursed by the employer.
In paragraph 35 of his written submissions, he posits this: that one of the issues to be resolved at this interlocutory hearing is “only the employer disclosed on the signed and executed workplace employment contract and its corresponding Australian Business Number can be the entity that pays the employee their employee entitlements”. I am not satisfied that that issue identified by the applicant, as one of the issues to be decided in this case, should be decided in his favour. I do not think that his proposition, as a matter of principle, is correct. And, like I say, nothing was identified to me as a matter of principle that suggested that it was. There was certainly nothing suggested to me that might displace the ordinary arrangements whereby an employer might – or the arrangements whereby an employer might engage the ordinary principles of agency to engage an agent, such as a payroll company, to make the pays.
In those circumstances, to the extent that the amendments sought to be made encompass such a claim, there is no point in permitting the applicant to deliver an amended statement of claim that includes them because it seems to me that such a claim is not likely to succeed.
The balance of the amendments, save for that respecting the proposed seventh respondent, otherwise appear to be more formal in nature and I have no difficulty with leave to amend the statement of claim in those ways.
The proposed seventh respondent was an assistant sales manager at the same organisation at which the applicant was employed. He says that person ought to be joined to these proceedings because they were involved in the employer’s breaches of the various Acts that he says were breached by the employer. It is difficult to give an example because the only real pleading against the seventh respondent – or proposed seventh respondent – is that she was a sales manager for the first respondent and was responsible for contraventions of the applicant’s general workplace protections. No particularity is given to that. It is also alleged that at material times the seventh respondent was an employee of the first respondent, was a health and safety hazard in the workplace and contravened the applicant’s entitlement to a safe workplace and breached the applicant’s employment contract with the employer.
Those amendments, insofar as they assert that the seventh respondent is somehow liable for something, do not establish, in my view, a cause of action, and so there seems to be little basis set out in the pleading – or at all, indeed – for the seventh respondent to be joined to these proceedings.

ORDERS DELIVERED

To the extent that it might be suggested that the seventh respondent was involved in the contraventions for the purposes of s.550 of the Fair Work Act (see, for example, paragraph 86 of the proposed amended statement of claim) the matters, I should say, pleaded in the statement of claim – or intended amended statement of claim, as it is called – are insufficient to establish accessorial liability pursuant to s.550 of the Fair Work Act or, for that matter, s.55 of the Fair Work Act, as I have said.

ORDERS DELIVERED

I do not intend to deal with the question of discovery because that is dependent upon the issues that are in dispute as revealed by the pleadings and I assume that the respondents will wish to file an amended defence.

RECORDED : NOT TRANSCRIBED

So until there is an amended defence, there is no point considering questions of discovery or disclosure because those matters are dependent upon the issues identified by the pleadings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 January, 2020

Associate:

Date: 23 January 2020