ISG Management Pty Ltd v Mutch - [2020] FCAFC 213

FEDERAL COURT OF AUSTRALIA
ISG Management Pty Ltd v Mutch [2020] FCAFC 213

Appeal from: Application for leave to appeal from: Mutch v ISG Management Pty Ltd [2020] FCA 362

File number: VID 222 of 2020

Judgment of: WHITE, LEE AND SC DERRINGTON JJ

Date of judgment: 30 November 2020

Catchwords: REPRESENTATIVE PROCEEDINGS – application for leave to appeal – industrial class action – claims that group members were employees of respondent – where primary judge dismissed application for orders under ss 33C and 33N of the Federal Court of Australia Act 1976 (Cth) that proceeding not validly commenced as a representative proceeding, or alternatively that it not continue as a representative proceeding – whether claims of group members did not give rise to substantial common issue of fact or law – whether claim that group members were employees must be determined on individual-by-individual basis and thus no common issue raised – where primary judge satisfied of two common questions – whether proceeding ought to have been declassed because most if not all common issues not capable of determination on common basis – whether representative proceeding would provide efficient and effective means of dealing with claims of group members – whether otherwise inappropriate that claims be pursued as representative proceeding – consideration of relevant principles – primary judgment not attended by doubt – no substantial injustice – application dismissed

Legislation:
Acts Interpretation Act 1901 (Cth) s 33

Fair Work Act2009 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33H, 33N, 33ZB, 33ZF

Cases cited:
Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCAFC 183

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) FCR 150

Dyczynski v Gibson [2020] FCAFC 120; (2020) 381 ALR 1

House v The King (1936) 55 CLR 499

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275

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: 46

Date of hearing: 12 November 2020

Counsel for the Applicant: Mr F Parry QC and Dr C Button QC with Mr D Snyder and Mr B Avallone

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent Mr I Pike SC with Mr J Dooley

Solicitor for the Respondent: Shine Lawyers

ORDERS

VID 222 of 2020

BETWEEN:
ISG MANAGEMENT PTY LTD

Applicant

AND:
MR ROBERT MUTCH

Respondent

ORDER MADE BY:

WHITE, LEE AND SC DERRINGTON JJ

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ISG Management Pty Ltd v Mutch and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCAFC 213
Decision Date: 30 November 2020

CaseChat Overview and Summary

In the case of ISG Management Pty Ltd v Mutch, the applicant sought leave to appeal a decision that dismissed an application for orders under sections 33C and 33N of the Federal Court of Australia Act 1976 (Cth). The dispute involved an industrial class action where the group members claimed they were employees of the respondent. The primary judge had ruled that the proceeding was not validly commenced or, alternatively, that it should not continue as a representative proceeding. The core issues were whether the claims raised a substantial common issue of fact or law and if the claims that the group members were employees required individual determination, thereby negating a common issue.

The court considered the criteria for a representative proceeding, specifically whether the proceeding should have been declassed because the common issues were not capable of determination on a common basis. Additionally, the court examined whether a representative proceeding would provide an efficient and effective means of dealing with the claims. The court held that the primary judge was satisfied with two common questions and found no substantial injustice in the dismissal of the application. The principles guiding representative proceedings were carefully weighed, and the decision of the primary judge was deemed to be free from doubt.

Consequently, the court dismissed the application for leave to appeal. The primary judgment was affirmed, and the appeal was not allowed. The orders made by the court were straightforward, with the application for leave to appeal being dismissed. This outcome was in line with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such cases.

Orders

Orders of the court

1. The application for leave to appeal be 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for leave to appeal from: Mutch v ISG Management Pty Ltd [2020] FCA 362
File number:	VID 222 of 2020
Judgment of:	WHITE, LEE AND SC DERRINGTON JJ
Date of judgment:	30 November 2020
Catchwords:	REPRESENTATIVE PROCEEDINGS – application for leave to appeal – industrial class action – claims that group members were employees of respondent – where primary judge dismissed application for orders under ss 33C and 33N of the Federal Court of Australia Act 1976 (Cth) that proceeding not validly commenced as a representative proceeding, or alternatively that it not continue as a representative proceeding – whether claims of group members did not give rise to substantial common issue of fact or law – whether claim that group members were employees must be determined on individual-by-individual basis and thus no common issue raised – where primary judge satisfied of two common questions – whether proceeding ought to have been declassed because most if not all common issues not capable of determination on common basis – whether representative proceeding would provide efficient and effective means of dealing with claims of group members – whether otherwise inappropriate that claims be pursued as representative proceeding – consideration of relevant principles – primary judgment not attended by doubt – no substantial injustice – application dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 33 Fair Work Act2009 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33H, 33N, 33ZB, 33ZF
Cases cited:	Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) FCR 150 Dyczynski v Gibson [2020] FCAFC 120; (2020) 381 ALR 1 House v The King (1936) 55 CLR 499 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275 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:	46
Date of hearing:	12 November 2020
Counsel for the Applicant:	Mr F Parry QC and Dr C Button QC with Mr D Snyder and Mr B Avallone
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent	Mr I Pike SC with Mr J Dooley
Solicitor for the Respondent:	Shine Lawyers