Grochowski v Kearney

Case [2020] FCA 1248

FEDERAL COURT OF AUSTRALIA

Grochowski v Kearney [2020] FCA 1248

Appeal from: Kearney v Accrue Property Pty Ltd [2020] FCCA 74
File number(s): VID 60 of 2020
Judgment of: O'CALLAGHAN J
Date of judgment: 28 August 2020
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision – where primary judge declined to strike out allegations in statement of claim or order that further particulars be provided – where primary judge provided multiple independent reasons for decision – whether error in one reason affected other reasons

EVIDENCE – where party’s defence did not plead to certain allegations in reliance upon privilege against exposure to penalty – whether primary judge erred in finding allegations not denied were taken to be admitted under r 16.07(2) of the Federal Court Rules 2011 (Cth)
Legislation:

Fair Work Act2009 (Cth) ss 546(1), 550(1), 570

Federal Court Rules 2011 (Cth) r 16.07(2)
Cases cited:

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658; 226 ALR 247

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Anderson v Australian Securities and Investments Commission [2012] 2 Qd R 401

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32

Dubow v Fitness First Australia Pty Ltd [2011] NSWCA 401

Fair Work Ombudsman v Hu [2017] FCA 1081

In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318

MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612

Nationwide News Pty Ltd v Rush [2018] FCAFC 70
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 14
Date of hearing: 24 August 2020
Counsel for the Applicant: Mr A Galbraith
Solicitor for the Applicant: DSS Law
Counsel for the Respondent: Ms R Preston
Solicitor for the Respondent: Gil Boffa & Associates

ORDERS

VID 60 of 2020
BETWEEN:

JEFFREY JAMES GROCHOWSKI

Applicant
AND:

JOSEPH KEARNEY

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

28 AUGUST 2020

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

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


REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

  1. This is an application for leave to appeal and to appeal against an interlocutory order of a judge of the Federal Circuit Court.  The order dismissed an application by the second respondent in the proceeding below to strike out certain paragraphs of the applicant’s amended statement of claim, or alternatively for the provision of particulars.  The claim made against the second respondent is that he was involved in contraventions of the Fair Work Act 2009 (Cth) (the Act) by the first respondent, within the meaning of s 550(1) of the Act. The applicant in the proceeding below seeks, among other things, an order that the second respondent pay a pecuniary penalty pursuant to s 546(1)…

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Details
AGLC
Grochowski v Kearney [2020] FCA 1248
Case
[2020] FCA 1248
Decision Date

CaseChat Overview and Summary

The applicant, Grochowski, sought leave to appeal an interlocutory decision by the primary judge, which involved the refusal to strike out allegations in the statement of claim or to order further particulars. The dispute was before the Federal Court of Australia. The primary judge declined to order the applicant to provide further particulars or to strike out certain allegations in the statement of claim, providing multiple independent reasons for the decision. The court was required to determine whether the error in one of the reasons affected the other reasons and whether the primary judge erred in finding that allegations not pleaded to were taken to be admitted.

The court examined the primary judge's reasoning and concluded that the passage of reasoning was not infected by the earlier incorrect reasoning about deemed admissions. The court found that the primary judge's reasons at [48]-[56] were an independent basis for the ruling. The court applied the well-known principle that a tight rein must be kept upon interference with the orders of Judges of first instance on a point of practice or procedure to ensure the proper administration of justice. The court considered the amended statement of claim, the relevant request for particulars, and the transcript of counsel’s submissions on the point made to the primary judge. The court concluded that the primary judge's decision not to order further particulars or to strike out any part of the pleading was correct, as the pleaded particulars of knowledge were detailed and the respondent would have the benefit of the applicant’s affidavit evidence and a written opening by the time of trial.

The court dismissed the application for leave to appeal and found that it was not a case where it could be said that the making or continuing of the application was unreasonable, so it would not make an order for costs. The final order was that the application for leave to appeal is dismissed.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

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

Counsel for the applicant before me submitted that this passage of reasoning was infected by the earlier incorrect reasoning about deemed admissions. I do not agree. In my view, read as a whole, the primary judge’s reasons at [48]-[56] are an independent basis for her ruling not to order that further particulars be provided in respect of the claim against the second respondent, or to strike out the identified paragraphs of the pleading: cf Dubow v Fitness First Australia Pty Ltd [2011] NSWCA 401 at [11], [15] (Campbell and Meagher JJA).Test applicable to review of a decision on a point of practice or procedure It is worth repeating the well-known passage from the judgment of Jordan CJ in In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323:[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. That admonition that a tight rein must be kept upon interference with orders of the type made by the judge in this case was cited with approval by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ), and more recently in Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [4] (Lee J) and Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [3] (Besanko, Bromwich and Wheelahan JJ).Consideration I was taken during oral submissions from counsel for both parties to the amended statement of claim, the relevant request for particulars, the particulars given in response, and the relevant pages of the transcript of counsel’s submissions on the point made to the primary judge. In my view, the judge’s decision not to order the giving of the further particulars sought, or to strike out identified paragraphs of the amended statement of claim, is not attended with sufficient doubt to warrant reconsideration. It seems to me that in circumstances where the pleaded particulars of knowledge given are detailed and, as the judge said, where in any event by the time of trial the second respondent will have the benefit of the applicant’s affidavit evidence and a written opening, the judge’s decision not to order further particulars is not only not attended by doubt, but it is correct. I am also fortified in that conclusion by the fact that the applicant did not, either before the primary judge or in this court, identify with any specificity why the particulars that had been provided did not sufficiently enable him to understand the case that he has to meet. It follows, needless to say, that the judge was also correct not to strike out any part of the pleading.

Ratio Decidendi

Legal Principle Established

That admonition that a tight rein must be kept upon interference with orders of the type made by the judge in this case was cited with approval by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ), and more recently in Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [4] (Lee J) and Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [3] (Besanko, Bromwich and Wheelahan JJ).Consideration I was taken during oral submissions from counsel for both parties to the amended statement of claim, the relevant request for particulars, the particulars given in response, and the relevant pages of the transcript of counsel’s submissions on the point made to the primary judge. In my view, the judge’s decision not to order the giving of the further particulars sought, or to strike out identified paragraphs of the amended statement of claim, is not attended with sufficient doubt to warrant reconsideration. It seems to me that in circumstances where the pleaded particulars of knowledge given are detailed and, as the judge said, where in any event by the time of trial the second respondent will have the benefit of the applicant’s affidavit evidence and a written opening, the judge’s decision not to order further particulars is not only not attended by doubt, but it is correct. I am also fortified in that conclusion by the fact that the applicant did not, either before the primary judge or in this court, identify with any specificity why the particulars that had been provided did not sufficiently enable him to understand the case that he has to meet. It follows, needless to say, that the judge was also correct not to strike out any part of the pleading. For those reasons, the application for leave to appeal will be dismissed.Costs Given the judge’s finding that a significant part of the case against the second respondent was deemed to have been admitted, it was understandable that he would seek to reverse that (clearly wrong) finding, which he has succeeded in doing. The respondent to this application sought his costs (see s 570 of the Fair Work Act2009 (Cth)). But in my view, in light of what I said in the preceding paragraph, this is not a case where it can be said that the making or continuing of the application was unreasonable, so I will not make such an order.