Joseph v Parnell Corporate Services Pty Ltd (No 2)

[2020] FCA 838

FEDERAL COURT OF AUSTRALIA

Joseph v Parnell Corporate Services Pty Ltd (No 2) [2020] FCA 838

File number:

NSD 1035 of 2018

Judge:

FLICK J

Date of judgment:

17 June 2020

Catchwords:

INDUSTRIAL LAW – termination of employment contract not unlawful – misconduct – unpaid annual leave and long service leave entitlements

CONTRACT – damages for settlement of proceedings instituted overseas

PRACTICE AND PROCEDURE – costs    

Cases cited:

Joseph v Parnell Corporate Services Pty Ltd [2020] FCA 426

Date of hearing:

Determined on the papers

Date of last submissions:

29 May 2020

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

10

Solicitor for the Applicant:

Harmers Workplace Lawyers

Solicitor for the Respondents:

Atanaskovic Hartnell

ORDERS

NSD 1035 of 2018

BETWEEN:

ROBERT JOSEPH

Applicant

AND:

PARNELL CORPORATE SERVICES PTY LTD
(ACN 138 251 617)

First Respondent

PARNELL PHARMACEUTICALS HOLDINGS LTD
(ACN 137 904 413)

Second Respondent

PARNELL CORPORATE SERVICES U.S. INC. (and another named in the Schedule)

Third Respondent

AND BETWEEN:

PARNELL CORPORATE SERVICES PTY LTD
(ACN 138 251 617) (and others named in the Schedule)

First Cross-Claimant

AND:

ROBERT JOSEPH

Cross-Respondent

JUDGE:	FLICK J
DATE OF ORDER:	17 JUNE 2020

THE COURT ORDERS THAT:

1.Judgment for the Applicant/Cross-Respondent against the Third Respondent/Third Cross-Claimant in the amount of US$141,559.90 inclusive of interest to the date of judgment.

2.The Third Respondent/Third Cross-Claimant to pay post-judgment interest on the amount of the judgment in Order 1 as is from time to time unpaid at the rate fixed by r 39.06 of the Federal Court Rules 2011 (Cth) pursuant to s 52 of the Federal Court of Australia Act 1976 (Cth).

3.Judgment for the Respondents/Cross-Claimants against the Applicant/Cross-Respondent in the amount of US$1,004,689.54 inclusive of interest to the date of judgment.

4.The Applicant/Cross-Respondent to pay post-judgment interest on the amount of the judgment in Order 3 as is from time to time unpaid at the rate fixed by r 39.06 of the Federal Court Rules 2011 (Cth) pursuant to s 52 of the Federal Court of Australia Act 1976 (Cth).

5.The Applicant is to pay the costs of the Respondents, either as agreed or taxed.

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

REASONS FOR JUDGMENT

FLICK J:

1. On 2 April 2020 reasons for decision were published in this matter:  Joseph v Parnell Corporate Services Pty Ltd [2020] FCA 426.

2. In that proceeding Mr Joseph contended that his employment had been wrongfully terminated.  It was concluded (inter alia) that his employment had been lawfully terminated summarily on 18 December 2017: [2020] FCA 426 at [5]. One claim made in that proceeding by the Applicant was an entitlement to long service leave. The Respondents accepted that an amount in respect to such leave entitlements should have been – but was not – paid: [2020] FCA 426 at [127].

3. Now in issue is the quantification of that amount.

4. Mr Joseph quantifies that amount (inclusive of interest) in the sum of US$191,152.45; the Respondents’ calculation is in the sum of US$141,559.90.

5. The Respondents’ calculation is accepted.

6. The Respondents in their Defence admitted that Mr Joseph had accrued unpaid long service leave entitlements as at the date of termination of his services on 18 December 2017.  The Defence expressly set forth the entitlement to which they maintained Mr Joseph was entitled, namely, 42.2 days.  The Respondents proffered a calculation of that amount. 

7. The onus forever rested upon Mr Joseph to make good the claim that he made.  No evidence was led by Mr Joseph to establish the amount of long service leave he in fact had taken and the outstanding amount of leave to which he was entitled.  The simple fact is that he has failed to discharge the onus of making good his claim to the higher amount.  Mr Joseph’s Outline of Submissions filed during the course of the hearing maintained that he was entitled to payment of the full amount of his leave entitlements as the Respondents had “not led any evidence that [he] had taken any long service leave”.  But, in so submitting, Mr Joseph was even then seeking to impermissibly transfer to the Respondents the onus which properly lay upon him and not the Respondents.  

8. The Respondents by their written Closing Submissions expressly alerted Mr Joseph to the fact that he had “put on no evidence establishing that his entitlement to long service leave was any greater than” the amount admitted in the Defence.  No application was made at the hearing, nor is any application now made to re-open his case to present new evidence.  In the absence of any evidence from Mr Joseph establishing any greater amount than that the subject of admission in the Respondents’ Defence, it is that amount for which judgment should be entered.

9. Subject to resolving that amount, the parties were otherwise in agreement as to the orders to be made to give effect to the 2 April 2020 judgment.

10. There is no reason as to why costs should not follow the event.  The Applicant is thus to pay the costs of the Respondents, including the costs of resolving the quantification of Mr Joseph’s long service leave entitlement.

    THE COURT ORDERS THAT:

    1.Judgment for the Applicant/Cross-Respondent against the Third Respondent/Third Cross-Claimant in the amount of US$141,559.90 inclusive of interest to the date of judgment.

    2.The Third Respondent/Third Cross-Claimant to pay post-judgment interest on the amount of the judgment in Order 1 as is from time to time unpaid at the rate fixed by r 39.06 of the Federal Court Rules 2011 (Cth) pursuant to s 52 of the Federal Court of Australia Act 1976 (Cth).

    3.Judgment for the Respondents/Cross-Claimants against the Applicant/Cross-Respondent in the amount of US$1,004,689.54 inclusive of interest to the date of judgment.

    4.The Applicant/Cross-Respondent to pay post-judgment interest on the amount of the judgment in Order 3 as is from time to time unpaid at the rate fixed by r 39.06 of the Federal Court Rules 2011 (Cth) pursuant to s 52 of the Federal Court of Australia Act 1976 (Cth).

    5.The Applicant is to pay the costs of the Respondents, either as agreed or taxed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:       

Dated:       17 June 2020

SCHEDULE OF PARTIES

NSD 1035 of 2018
Respondents
Fourth Respondent:	ALAN BELL
Cross-Claimants
Second Cross-Claimant:	PARNELL PHAMACEUTICALS HOLDINGS LTD (ACN 137 904 413)
Third Cross-Claimant:	PARNELL CORPORATE SERVICE U.S. INC.