Kearney v Accrue Property Pty Ltd
[2021] FCCA 1934
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kearney v Accrue Property Pty Ltd [2021] FCCA 1934
File number(s): MLG 3058 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON QC Date of judgment: 29 July 2021 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for leave to file a second further amended statement of claim where the claim arises out of an employment relationship – application seeking the production of certain documents by the Respondents – application for amendment to timetabling orders – leave to file second further amended statement of claim granted – application seeking production of certain documents granted – amendments to timetabling orders accepted Cases cited: Grochowski v Kearney [2020] FCA 1248
Joseph Kearney v Accrue Property Proprietary Limited & Anor [2020] FCCA 74
Number of paragraphs: 9 Date of last submission/s: 30 July 2021 Date of hearing: 29 & 30 July 2021 Place: Melbourne Counsel for the Applicant: Ms Preston Solicitor for the Applicant: Gil Boffa & Associates Counsel for the Respondents Mr Galbraith Solicitor for the First and Second Respondents: DSS Law ORDERS
MLG 3058 of 2018 BETWEEN: JOSEPH KEARNEY
Applicant
AND:
AND:
ACCRUE PROPERTY PTY LTD
First Respondent
JEFFREY JAMES GROCHOWSKI
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON QC
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS THAT:
1.The liability hearing listed to commence on 23 August 2021 at 10:00 am for an estimate of four (4) days be vacated.
2.All extant directions contained in the Orders of Her Honour Judge C. E. Kirton QC dated 2 October 2020 are discharged. To avoid any doubt, all continuing obligations of discovery by the First Respondent survive, as do any orders in relation to costs.
3.The matter be listed for a liability hearing in the Federal Circuit Court of Australia on 19 September 2022 at 10:00 am with an estimated hearing time of three (3) days (Liability Hearing).
4.The Applicant has leave to file the Second Further Amended Statement of Claim appended to the Applicant’s Application in a Case filed on 6 July 2021 (Application in a Case).
5.By 4:00 pm on 26 August 2021, the First Respondent produce by way of discovery the following documents:
In relation to paragraphs 228 and 230 of the Affidavit of Joan Grochowski affirmed on 25 February 2021 and filed on 26 February 2021 (Grochowski Affidavit):
(a)All records/documents in its customer relationship management database in respect of each of the specified clients, as contained in each of the following folders/tabs:
(i)Script 1;
(ii)Inbound;
(iii)Appointment;
(iv)Quality Assurance;
(v)Membership;
(vi)Sale;
(vii)Post Sale;
(viii)Invoicing; and
(ix)Calls and History;
(b)To the extent they have not already been provided, the Sales Administration Forms and the Sales Authorities for:
(i)Each of the properties listed in paragraphs 228 and 230 of the Grochowski Affidavit; and
(ii)Any property subsequently purchased by any of the clients listed in paragraph 228 (that is, after the listed sale was “cancelled and did not proceed”) of the Grochowski Affidavit.
(c)In relation to paragraph 233 of the Grochowski Affidavit:
(i)All correspondence with vendors and all records of any communications in relation to the payment or non-payment of vendor commissions, in whole or in part, in relation to each of the listed transactions; and
(ii)All records evidencing in relation to each of the listed transactions:
A.The payment of vendor commissions, in whole or in part; and
B.Any stated reasons for non-payment of the commissions, in whole or in part.
6.The Respondents each file a Second Further Amended Defence to the Second Further Amended Statement of Claim by 4:00 pm on 1 October 2021.
7.The Applicant file any Reply to the Respondents’ Second Further Amended Defences by 4:00 pm on 22 October 2021.
8.The First Respondent file and serve any further affidavits and other materials it intends to rely upon at the Liability Hearing by 4:00 pm on 26 November 2021.
9.The First Respondent file and serve an outline of submissions by 4:00 pm on 25 February 2022.
10.The Applicant file and serve an outline of submissions in reply by 4:00 pm on 1 April 2022.
11.By no later than four (4) weeks before the commencement of the Liability Hearing, the parties are to exchange with each other and forward to the Chambers of Her Honour Judge C. E. Kirton QC at [email protected] any objections to admissibility of evidence in tabular form which identifies the affidavit, the particular paragraph or part thereof or annexure objected to, and the reasons for the objection.
12.By no later than two (2) weeks before the commencement of the Liability Hearing, the parties are to file a joint court book (in hard copy and electronically) which contains a copy of all relevant documents filed by them and on which they seek to rely. The court book is to include an index of all documents and each page shall be paginated. The electronic court book shall also:
(a)Be in portable document format (PDF);
(b)Be capable of being searchable for specified text; and
(c)Have each entry in the index electronically bookmarked.
13.Should the Second Respondent waive his privilege against self-exposure to penalty he must within seven (7) days of the conclusion of the Applicant’s case, file and serve:
(a)A Third Further Amended Defence;
(b)Any affidavit and other material on which he intends to rely; and
(c)An outline of submissions.
14.Liberty to apply.
15.The parties’ costs of and incidental to the Application in a Case be reserved.
16.The Application in a Case be otherwise dismissed.
EX TEMPORE REASONS FOR JUDGMENT
Revised from TranscriptHER HONOUR JUDGE C.E. KIRTON QC:
This proceeding commenced by the filing of the Application – Fair Work Division by the Applicant on 11 October 2018. I turn first to the background of this matter. The Respondents filed a Notice of Acting – Appointment of Lawyer on 30 October 2018, now approaching three years ago. The proceeding was originally docketed to Judge Hartnett, as her Honour then was. Her Honour made procedural directions in Chambers by consent on 13 December 2018. This was some two and a half years ago.
The Orders made on 13 December 2018 provided for the delivery of the Respondents’ Defence, the Applicant’s Reply and for the production of discovery by the Respondents. Two and a half years later, the parties are still disputing the sufficiency of the Respondents’ discovery.
My first involvement with this proceeding was at the Directions Hearing on 4 April 2019. Since I have become the docket judge, I have formed the view that the Respondents are very keen to avoid this matter coming to trial. On 29 April 2019, the Respondents were ordered to pay the Applicant $3,000 for costs thrown away, by reason of failing to comply with Orders of the Court. In my view, the highlight of the Respondents’ delay tactics was seeking leave to appeal a judgment that I delivered on 21 January 2020, when I granted the Applicant leave to file a Further Amended Statement of Claim. In the matter of Joseph Kearney v Accrue Property Proprietary Limited & Anor [2020] FCCA 74, the central complaint was in relation to an impressive list of further and better particulars demanded by the Respondents.
That matter was subject to an Application for Leave to Appeal, filed on 4 February 2020, which was not successful before the Federal Court of Australia (Federal Court).[1] My view is that it is quite unusual for parties to appeal from this Court to the Federal Court seeking further and better particulars for pleadings. The Application for Leave to Appeal to the Federal Court also caused the final hearing of this matter, which was listed on 27 April 2020, to be vacated by Orders made in this Court on 6 March 2020.
[1] Grochowski v Kearney [2020] FCA 1248
The proceeding is presently listed before me for Final Hearing on 23 August 2021, with an estimate of four (4) days. I now turn to the application that is currently before me. I have before me an Application in a Case filed on 6 July 2021 (Application in a Case) filed by the Applicant. It is supported by the Affidavit of Gil Boffa filed on 6 July 2021. Mr Boffa is the solicitor for the Applicant. On 27 July 2021, the Respondents filed the Affidavit of Ronit Weiner.
Paragraph 1 of the Application in a Case seeks that ‘the Applicant has leave to file the Second Further Amended Statement of Claim, appended to this application, which is taken to be filed’. I accede to that application and that order will be made. Paragraph 2 of the Application in a Case seeks production of certain documents. I have heard arguments from Counsel for the Applicant and the Respondents, and I will accede to the application. Those documents are to be produced within 28 days. As such and most regrettably, I intend to accede to the orders in paragraph 3.
In my view, the Respondents have been doing all they can to avoid this matter coming before the Court for the Final Hearing. That said, this Court must also take into account that we are in the middle of a pandemic. In Melbourne, we have been in lockdown on five occasions since March 2020; three times this year, and our last lockdown was for two weeks, which concluded this week on Tuesday, 26 July 2021.
I must take into account my observations that, at least in my view, these lockdowns have had effect on the efficiency of lawyers, although they may not want to be explicit about it in these affidavits. I have also taken into account the submissions of Counsel for the Respondents, and I accept his submissions, which have been forcefully made, but I understand the position that he is in.
In adjourning this proceeding, I note for the Applicant that in the event that I find in his favour, there is the prospect for pre-judgment interest and, perhaps, he should ensure that it is clearly set out in his application. I invite the Applicant and the Respondents to submit orders to my Associates that reflect the orders that I have made now. We are in difficult times at the moment. A more cooperative approach between the parties would be appreciated by the Court. I otherwise dismiss the Application in a Case.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC. Associate:
Dated: 24 August 2021
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