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Kearney v Accrue Property Pty Ltd

Kearney v Accrue Property Pty Ltd

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Case Copied 21 January 2020 38 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNEY v ACCRUE PROPERTY PTY LTD & ANOR

[2020] FCCA 74

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for leave to file a further amended statement of claim where claims arise out of employment relationship – Adequacy of pleading – Application by Respondents to strike out claims against Second Respondent in Amended Statement of Claim – Alternative application by Respondents to compel further response to Respondents’ Request for Further and Better Particulars of Amended Statement of Claim – Application to strike out claims against Second Respondent refused – Application for Further Particulars of Amended Statement of Claim refused – Leave to further Amended Statement of Claim granted.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 34, 42, 43
Federal Circuit Court Rules 2001 (Cth), r.1.05, schedule 3
Federal Court Rules 2011 (Cth), rr.16.07, 16.21, 16.41, 16.43, 16.45
Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 116, 323, 544, 545, 550, 570
Real Estate Industry Award 2010, cl.5, 16.5(b)
Workplace Relations Act 1996 (Cth), s.728

Cases cited:

ABL Nominees Pty Ltd v MacKenzie (No.2) [2014] VSC 529
Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276
Commonwealth v The Verwayen (1990) 170 CLR 394
Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 863
Grimson v Victorian WorkCover Authority (1995) 1 VR 209
Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307
Horton v Jones(No.2) (1939) 39 SR NSW 305
In the matter of Pulitano Investments Pty Ltd [2019] VSC 178
Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd [2008] FCA 440
Namberry Craft Pty Ltd v Watson [2011] VSC 136

Applicant:

JOSEPH KEARNEY

First Respondent:

ACCRUE PROPERTY PTY LTD

Second Respondent:

JEFFREY JAMES GROCHOWSKI

File Number:

MLG 3058 of 2018

Judgment of:

Judge Kirton

Hearing date:

9 December 2019

Date of Last Submission:

9 December 2019

Delivered at:

Melbourne

Delivered on:

21 January 2020

REPRESENTATION

Counsel for the Applicant:

Ms Preston

Solicitors for the Applicant:

Gil Boffa & Associates

Counsel for the Respondents:

Mr Galbraith

Solicitors for the Respondents:

DSS Law

ORDERS

The Applicant have leave to file and serve a Further Amended Statement of Claim on or before 3 February 2020.
Order 2 of the Orders made on 9 December 2019 is discharged.
Orders 8, 9 and 10 of the Orders made on 7 October 2019 are discharged.
The Respondents file and serve their Defences to the Further Amended Statement of Claim on or before 17 February 2020.
The Applicant file and serve any Reply to the Defences to the Further Amended Statement of Claim or before 2 March 2020.
The Applicant to file and serve Further and Better Particulars of loss on or before 2 March 2020.
For the avoidance of doubt, Orders 6 and 11 to 21 of the Orders made on 7 October 2019 otherwise remain in full force and effect.
The Applicant’s costs of and incidental to the Applicant’s Application filed on 19 November 2019 (

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.

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Details

Case: [2020] FCCA 74
Decision Date: 21 January 2020

CaseChat Overview and Summary

In *Kearney v Accrue Property Pty Ltd*, the applicant, Mr Kearney, sought leave to file a further amended statement of claim in proceedings against the respondents, Accrue Property Pty Ltd and another. The respondents sought to strike out certain claims against the second respondent and, alternatively, to compel Mr Kearney to provide further and better particulars of his amended statement of claim.

The primary legal issues before the court were whether the claims against the second respondent were adequately pleaded and whether Mr Kearney should be required to provide further particulars in response to the respondents' request. The court was also required to determine whether to grant leave for Mr Kearney to file a further amended statement of claim.

Judge Kirton reasoned that the amended statement of claim, while not perfect, sufficiently disclosed a cause of action against the second respondent, thereby refusing the application to strike out those claims. Furthermore, the court found that the respondents' request for further particulars was overly broad and that the existing pleadings provided adequate information for the respondents to understand the case against them. Consequently, the application for further particulars was also refused.

Leave to file the further amended statement of claim was granted.

Orders