Hyne v Concourse Golf Pty Ltd

Case [2021] FedCFamC2G 301

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hyne v Concourse Golf Pty Ltd [2021] FedCFamC2G 301

File number(s): MLG 438 of 2021
Judgment of: JUDGE FORBES
Date of judgment: 29 November 2021
Catchwords: INDUSTRIAL LAW – FAIR WORK – Application by Respondents for joinder of non-party – Court’s discretion under rule 11 – whether cross-claim procedure under rule 24 should have been used – whether claims against non-parties are necessary or arguable – matters relevant to exercise of discretion – case management considerations – joinder allowed.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr.11, 24
Cases cited: Lukies v S2V Consulting Pty Ltd (2018) 333 FLR 226
Division: Division 2 General Federal Law
Number of paragraphs: 118
Date of last submission/s: 12 November 2021
Date of hearing: 4 November 2021
Place: Melbourne
Counsel for the Applicants: Ms Stojanova
Solicitor for the Applicants: Legal Made Easy
Counsel for the Respondents: Ms Bingham
Solicitor for the Respondents: Barry Nilsson Lawyers
Counsel for the proposed joinder parties (written submissions): Mr Howard
Solicitor for the proposed joinder parties (written submissions) Maddocks

ORDERS

MLG 438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CHARLOTTE HYNE

First Applicant

CHRISTOPHER HYNE

Second Applicant

EMMANUEL LEONDAKIS

Third Applicant
AND:

CONCOURSE GOLF PTY LTD

First Respondent

DAVID MICHAEL MACKAY

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

29 NOVEMBER 2021

THE COURT ORDERS THAT:

1.

In accordance with Rule 11.02(2) of the Federal Circuit Court and Family Court
of Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”), leave


be given to the First and Second Respondents to include A&JTM Investments Pty Ltd (ABN 12 064 624 497) as the Third Respondent and Fourth Cross-Respondent to this proceeding. 

2.In accordance with Rule 11.02(2) of the Rules, leave be given to the First and Second Respondents to include Anthony Micallef as the Fourth Respondent and Fifth Cross-Respondent to this proceeding. 

3.

In accordance with Rule 7.01 of the Rules, that the First and Second Respondents


be given leave to file an Amended Notice of Cross-Claim and the Amended Cross-Claim, in the form of the pleading attached as CLD-7 of the affidavit of Corrina Dowling affirmed on 7 October 2021, with those claims be further particularised


to address the concerns raised by the joinder parties’ counsel in his written submissions dated 12 November 2021.

4.Pursuant to Rule 11.02(1)(b) of the Rules, that the First and Second Respondents jointly serve on A&JTM Investments Pty Ltd (ABN 12 064 624 497) as the Third Respondent and Anthony Micallef as the Fourth Respondent, a copy of the Application, Second Amended Statement of Claim, Response, Defence and Amended Reply and upon all Cross-Respondents any Amended Notice of Cross-Claim and Amended Cross-Claim filed in this proceeding. 

5.The dates for the Respondents compliance with orders 3 and 4 herein be determined at the directions hearing on 3 December 2021.

6.Costs of this application be reserved. 

Note: The form of…

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Hyne v Concourse Golf Pty Ltd [2021] FedCFamC2G 301
Case
[2021] FedCFamC2G 301
Decision Date

CaseChat Overview and Summary

The case of Hyne v Concourse Golf Pty Ltd involved the applicants, Charlotte Hyne, Christopher Hyne, and Emmanuel Leondakis, who filed a lengthy and detailed statement of claim against Concourse Golf Pty Ltd and David MacKay, its shareholder, director, and secretary. The applicants alleged various breaches of employment law, including contraventions of the Fair Work Act 2009 and the Superannuation Guarantee (Administration) Act 1992, as well as claims for unpaid entitlements and damages for undue influence and adverse action. The respondents sought leave to join additional parties, A&JTM and Mr. Micallef, to the proceedings, arguing that their involvement was necessary for the complete and final determination of the dispute. The applicants opposed the joinder, contending that the respondents should have used the cross-claim procedure under rule 24 of the Federal Court Rules 2011 instead. The court considered the appropriate procedure for the joinder and whether the claims against the proposed joinder parties were necessary or arguable. It also examined the case management considerations, including the potential for delay, complexity, and prejudice to the applicants. The court concluded that the joinder should be allowed as it would facilitate a timely, efficient, and cost-effective resolution of the dispute. The court ordered the respondents to file a properly particularised amended pleading and gave directions for the next steps in the proceedings.

The court exercised its discretion under rule 11.02(2) of the Federal Court Rules 2011 to allow the joinder of A&JTM and Mr. Micallef as parties to the proceeding. The court found that the joinder was necessary to completely and finally determine the dispute and that the claims against the proposed joinder parties were arguable. The court acknowledged that the joinder might add complexity to the proceedings but considered it necessary for the proper administration of justice. The court also noted that the respondents should have filed a properly particularised amended pleading to set out clear causes of action against the joinder parties. The court reserved the costs of the joinder application and directed the parties to confer and agree on procedural orders to prepare the matter for trial. The court's decision was based on the overarching purpose of the Federal Court Rules, as provided in section 190 of the Federal Court of Australia Act 1976, and the court's power to dispense with strict compliance with the rules under rule 1.07(1) of the Federal Court Rules 2011.

Orders

Orders of the court

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Background

Background to the litigation

Lest there be any doubt, my ruling in favour of joinder says nothing about the merits of the Applicants’ case or the Respondents’ Defence and Cross-Claims. These proceedings are still in their early stages, no substantive evidence has been filed and I am not in a position to make any findings of fact. Notwithstanding my ruling, it remains open to the parties to make such applications in respect of pleadings, discovery, evidence and case management (including alternative dispute resolution) as they consider appropriate to ensure that this proceedingis brought to trial and determined in the most timely and efficient manner possible. LITIGATION BACKGROUND The Applicants in this proceeding are Charlotte Hyne, Christopher Hyne and Emmanuel Leondakis. The First Respondent (“Concourse Golf”) is a company which, broadly speaking, is engagedin the design, manufacture and sale of golf equipment both online and at golf stores across Australia. The company is also engaged in research and development of “smart wheel” technology for use in electric golf carts and other wheeled appliances. The Second Respondent (“David MacKay”) is a shareholder in Concourse Golf and is its sole director and secretary. These proceedings were commenced by the Applicants on 12 March 2021. The Statement of Claim filed on behalf of the Applicants is a lengthy and immensely detailed document, running to nearly 250 paragraphs over 111 pages in its current form. The pleading, which has been amended since the commencement of proceedings, traverses a broad arrayof allegations against the Respondents including that one or other of them:(a)employed the Applicants as permanent, ongoing or indefinite employees;(b)was bound by the Fair Work Act 2009 (Cth) (“FW Act”) and Regulationsin respect of the employment of the Applicants;(c)contravened the provisions of modern industrial awards in respect of the Applicants’ employment;(d)alternatively, engaged each of the Applicants as independent contractors;(e)was bound by the Independent Contractors Act 2006 (Cth) (“IC Act”) in respect of engagement of the Applicants as contractors;(f)engaged in sham contracting;(g)are liable to each of the Applicants in respect of various unpaid entitlements, including wages, overtime, annual leave, personal leave, public holidays, notice of termination and redundancy pay;(h)are liable to each of the Applicants in respect of unpaid superannuation in breach of the Superannuation Guarantee (Administration) Act 1992 (Cth) (“SG Act”);(i)failed to maintain proper records and failed to pay the Applicants accordingto the method and frequency prescribed by the FW Act;(j)engaged in breach of contract; (k)engaged in undue influence or pressured the Applicants in contravention of the FW Act; and(l)engaged in various acts of adverse action in breach of s 341 of the FW Act. It is alleged by the Applicants that David MacKay was an accessory to Concourse Golf’s breaches of the FW Act and that he was involved in contraventions within the meaning of sub-s 550 (1) of that FW Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For completeness, I will mention paragraph 25 of the proposed Amended Statementof Counterclaim. The joinder parties contend that the paragraph makes a bare assertion and does not make out a cause of action. I agree. On the face of it the proposed paragraph 25 goes nowhere and is liable to be struck out unless it forms the basis of a pleaded cause of action. CONCLUSION I am persuaded that leave should be granted pursuant to r 11.02(2) for the Respondents to join A&JTM and Mr Micallef as parties to the proceeding. I am comfortably satisfied that as a matter of proper case management and discharge of the Court’s obligation to ensure the timely, efficient and cost-effective resolution of disputes, there is a compelling case for leave to be granted. Rule 7.01 relevantly provides that at any stage in a proceeding, the court may allow a partyto amend a document in the way and on the conditions the court thinks fit. Having determined that the application for joinder should be granted, it follows, for substantially the same reasons, that the Respondents should be permitted to amend their Notice of Cross-claim and their Statement of Cross-claim to give effect to that joinder. Doing so will ensure that the real questions in controversy between the parties can be decided. Although the paragraphs of the proposed pleading are sufficiently pleaded for me to be satisfied that the Respondents have an arguable case and that joinder should be allowed, I am somewhat sympathetic to the joinder parties’ complaint that the proposed pleading is lacking in the necessary particulars to make out clear causes of action. Accordingly, I will make orders which require the Respondents to file a properly particularised Notice of cross-claim and Amended Statement of Cross-claim and, if further particularsare sought and are not forthcoming from the Respondents, I will look favourably upon any application for an order for further particulars. The time for filing and serving a properly particularised Amended Notice of Cross-claim and Amended Statement of Cross-claim can be subject of orders to be made at the next directions hearing. I would hope that in light of this joinder ruling, the parties’ counsel can confer and agree upon a set of procedural orders which will prepare this matter for trial in an efficient and orderly fashion. I will reserve the costs of this application.

Ratio Decidendi

Legal Principle Established

In terms of the case management considerations which weigh against the Respondents application, the joinder parties’ submissions generally align with those made by the Applicants. The proposed joinder parties submit that there has been unexplained delay and that the joinder could have occurred in July 2021 when the Respondents filed their statement of cross-claim. They also submit that the case between the current litigants is well advanced and that the pleadings are complex enough. They argue that the addition of two new parties will only add to complexity and will result in prejudice to the Applicants. It is also submitted that thereis no real risk of multiplicity of proceedings and that the proposed joinder will not contribute toward the Court’s overarching purpose of facilitating a quick, inexpensive and efficient resolution of the dispute between the current litigants.CONSIDERATION As previously mentioned, I have carefully read and considered the written submissions and where appropriate the authorities to which I have been referred by counsel.Procedural issues In their application filed on 1 November 2021 the Respondents seek leave to join A&JTMand Micallef pursuant to r 11.02 and seek leave to file an amended pleading pursuant to r 7.01. Seizing upon counsel for the Respondents’ description of the application being akin to a third-party notice, the Applicants object to the procedural pathway which has been taken by the Respondents to seek joinder. Applicants’ counsel contends that the joinder application should be dismissed because, among other things, it “is not the appropriate form of civil procedure” as any cross-claim by the Respondents against A&JTM and Micallef should have been initiated pursuant to the cross-claim process prescribed in r 24. I am not persuaded by this submission because I am satisfied that rr 11 and 24 can operate harmoniously and the Respondents’ application for joinder (howsoever it might be described) would be justified whichever procedural course had been followed. Furthermore, this Court will be guided by the overarching purpose of the Rules, as provided in s 190 of the FCFCA Act[8] and the Court can dispense with strict compliance with the Court’s Rules at any time[9]. [8] Rule 1.04[9] Rule 1.07(1) Nonetheless, the point having been raised, it may be useful to plot the different pathwaysto explain why the two procedures can ultimately meet at the same point. As Judge Lucev observed in Lukies v S2V Consulting Pty Ltd (2018) 333 FLR 226 at [18] “…the issue of what rule applies in relation to joinder of a party is not one which has admitted of a consistent answer in proceedings before his Court”. Rule 11.01(1) of the Court’s Rules requires a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding to be included as a party to the proceeding. This is a mandatory requirement and appears to be principally directed at the commencement of proceedings. By r 11.01(2) the Court may require a person to be included as a party and by r 11.01(3) where a person required to be includedas an applicant does not consent to being so included, they may be included as a respondent. The gravamen of this sub-rule is that all persons whose participation is necessary to completely and finally determine a dispute should be parties to the proceeding from the outset.