FEDERAL COURT OF AUSTRALIA
Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266
File number(s): VID 1048 of 2023 Judgment of: HORAN J Date of judgment: 4 November 2024 Catchwords: PRACTICE AND PROCEDURE – application by third and fourth respondents for summary dismissal and strike out of claims against them – whether reasonable prospect of successfully prosecuting claims against third and fourth respondents – whether statement of claim discloses reasonable cause of action – whether pleading evasive or ambiguous, or likely to cause prejudice, embarrassment or delay – applicant’s employment terminated by first respondent – alleged accessorial liability of third and fourth respondents for contraventions by first respondent of Pt 3-1 of Fair Work Act 2009 (Cth) (FW Act) – elements necessary to establish involvement in alleged contraventions under s 550(2) of FW Act – alleged contraventions by fourth respondent of Pt 3-1 of FW Act – where alleged that adverse action taken against applicant by fourth respondent – whether alleged adverse action taken by principal against independent contractor or person employed or engaged by independent contractor – where fourth respondent is foreign corporation – whether sufficient connection between fourth respondent and Australia – where real questions of fact and law to be determined – interlocutory application by third and fourth respondents dismissed
INDUSTRIAL LAW – Part 3-1 of Fair Work Act 2009 (Cth) – involvement in contravention of civil remedy provision – whether knowingly concerned in or party to principal contravention – whether adverse action taken by principal against independent contractor or person employed or engaged by independent contractor – whether sufficient connection with Australia
Legislation: Fair Work Act 2009 (Cth) ss 14, 338(1)(a), 338(1)(b), 340(1)(a), 340(1)(b), 342(1), 346(a), 346(b), 550(2), 793
Federal Court of Australia Act1976 (Cth) s 31A
Superannuation Guarantee (Administration) Act 1992 (Cth)
Federal Court Rules 2011 (Cth) rr 16.21, 16.41, 16.43, 16.45, 26
Cases cited: Ashbury v Reid [1961] WAR 49
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (t/as Captain Cook College) (No 3) [2021] FCA 737; 154 ACSR 472
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256
Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299
Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445; 302 ALR 1
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- Case
- [2024] FCA 1266
- Decision Date
CaseChat Overview and Summary
The court found that the claims against Ms Klimen and Filecoin involved complex questions of fact and law, including the elements necessary to establish accessorial liability under section 550(2) of the Fair Work Act, and whether adverse action was taken by Filecoin against Ms Haire. The court held that the statement of claim was not evasive or ambiguous, and did not contain matters likely to cause prejudice, embarrassment, or delay. Importantly, the court noted that there were real questions of fact and law to be determined, which precluded the application for summary dismissal. Consequently, the interlocutory application was dismissed.
The court ordered that the interlocutory application by Ms Klimen and Filecoin be dismissed, that they pay the applicant's costs of the interlocutory application, and that the proceeding be listed for a case management hearing on 6 December 2024 at 9:30am.
Orders
Orders of the court
1. The third and fourth respondents’ interlocutory application dated 12 July 2024 be dismissed.
2. The third and fourth respondents pay the applicant’s costs of the interlocutory application.
3. The proceeding be listed for a case management hearing on 6 December 2024 at 9.30am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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