King v Patrick Projects Pty Ltd

Case [2016] FCA 1110

FEDERAL COURT OF AUSTRALIA

King v Patrick Projects Pty Ltd [2016] FCA 1110

File number(s): WAD 641 of 2015
Judge(s): GILMOUR J
Date of judgment: 9 September 2016
Catchwords: PRACTICE AND PROCEDURE – application to strike out amended statement of claim and originating application – whether statement of claim has a reasonable cause of action - whether proceeding is an abuse of process – denial of opportunity to re-plead statement of claim
Legislation:

Federal Court Rules 2011 (Cth) rr 16.21(e), 16.21(f)

Fair Work Act 2009 (Cth) ss 54, 739

Cases cited:

Alcock v Commonwealth [2012] FCA 870

Allstate Life Insurance Co v ANZ Banking Group Ltd [1994] FCA 636

Construction, Forestry, Mining and Energy Union v Commonwealth of Australia [1999] FCA 1571

General Steel Industries Inc v Commissioner for Railways and Ors (NSW) (1964) 112 CLR 125

King v Patrick Projects Pty Ltd [2015] FWCFB 6323

Polar Aviation Pty Ltd v Civic Aviation Safety Authority [2012] FCAFC 97

Seiffert v Patrick Projects Pty Ltd [2014] FWC 7019

Sims v Chong [2014] FCA 1069

Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672

Yooralla Sponsors Club v JRBI Nominees Pty Ltd (1980) 49 FLR 86
Date of hearing: 9 June 2016
Registry: Western Australia
Division: Fair Work
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 35
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Ms H Millar
Solicitor for Respondents: K & L Gates

ORDERS

WAD 641 of 2015
BETWEEN:

DANIEL KING & ORS

Applicant
AND:

PATRICK PROJECTS PTY LTD

First Respondent

ASCIANO LIMITED

Second Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

9 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The amended statement of claim dated 15 April 2016 be struck out.

2.The applicants’ interlocutory application dated 4 May 2016 be dismissed.

3.The applicants’ originating application be dismissed.

4.The respondents’ have liberty to apply on the question of costs within 14 days of these orders.

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


REASONS FOR JUDGMENT

GILMOUR J:

  1. There are two interlocutory applications before the Court. The first, by the applicants in this proceeding (the applicants), seek interlocutory injunctive relief. The second, by the first respondent (Patrick Projects), is for orders to strike out the applicants’ amended statement of claim (statement of claim) pursuant to Rule 16.21(e) and (f) of the Federal Court Rules 2011 (Cth) (Rules) on the grounds that the statement of claim does not disclose a reasonable cause of action and further, that it is an abuse of process. The first respondent also seeks an order that the proceeding be dismissed immediately.

  2. The second respondent (Asciano) adopts and supports the submissions of Patrick Projects with respect to both of the interlocutory applications.

  3. Patrick Projects is a wholly owned subsidiary of Patrick Stevedoring Pty Ltd, which is a wholly owned subsidiary of Patrick Auto, Bulk & General Ports Pty Ltd, which is a wholly owned subsidiary of Asciano…

Continue reading King v Patrick Projects Pty Ltd

Sign in free to access the full text

Details
AGLC
King v Patrick Projects Pty Ltd [2016] FCA 1110
Case
[2016] FCA 1110
Decision Date

CaseChat Overview and Summary

The case of King v Patrick Projects Pty Ltd was heard in the Federal Court of Australia. The plaintiffs, in this case, sought to prevent certain corporate actions by the defendants, including a takeover, a breakup of the company into three separate businesses, and the disbanding of group functions. The plaintiffs argued that these actions would negatively impact their rights under a Deed and an Agreement. The defendants, in turn, sought to have the plaintiffs' amended statement of claim struck out and the proceedings dismissed entirely.

The primary legal issues before the court were whether the plaintiffs' amended statement of claim had a reasonable cause of action and whether the proceedings constituted an abuse of process. The court also needed to determine if the plaintiffs were being denied an opportunity to re-plead their statement of claim. The defendants argued that the plaintiffs' claim was without merit and that the proceedings were an abuse of process.

The court found that the plaintiffs' amended statement of claim did not have a reasonable cause of action. The court reasoned that the plaintiffs had not demonstrated how the proposed corporate actions would infringe upon their rights under the Deed and Agreement. The court also found that the proceedings were an abuse of process, as the plaintiffs were using the court to prevent legitimate corporate actions. The court held that the plaintiffs were not being denied an opportunity to re-plead their statement of claim, as they had already been given leave to amend and replead.

The court ordered that the plaintiffs' amended statement of claim be struck out, the interlocutory application be dismissed, and the originating application be dismissed. The defendants were granted liberty to apply for costs within 14 days of the orders.

Orders

Orders of the court

1. The amended statement of claim dated 15 April 2016 be struck out.

2. The applicants’ interlocutory application dated 4 May 2016 be dismissed.

3. The applicants’ originating application be dismissed.

4. The respondents’ have liberty to apply on the question of costs within 14 days of these orders.

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

Background

Background to the litigation

Patrick Projects is a wholly owned subsidiary of Patrick Stevedoring Pty Ltd, which is a wholly owned subsidiary of Patrick Auto, Bulk & General Ports Pty Ltd, which is a wholly owned subsidiary of Asciano Holdings (General & Bulk) Pty Ltd, which is a wholly owned subsidiary of Asciano.Background The proceedings were instituted in November 2015. Thereafter the applicants were given leave to amend their application and re-plead their statement of claim. The applicants were allowed approximately five months to amend and replead, and on 15 April 2016 they filed an amended application and amended statement of claim. The applicants by their amended statement of claim purport to sue under the AMC Cargo Handling Operations Memorandum of Understanding Deed (Deed) and the Patrick Projects AMC Cargo Handling Agreement 2012 – 2015 (Agreement). Both the Deed and the Agreement are dated 27 April 2012. The Agreement is an enterprise agreement and was approved by Fair Work Australia, in accordance with s 54 of the Fair Work Act 2009 (Cth) (FWA) on 27 April 2012 and the Agreement was ordered to operate from 7 days after the decision approving it. The Deed was not registered.The applicants’ application The somewhat unusual injunctive relief sought in this application is for an order that the respondents be restrained from the following:(a)takeover by a large consortium of businesses;(b)breakup of Asciano into three businesses; and(c)ultimate disbanding of the group functions which is(d)currently scheduled to be complete at the end of June 2016. The applicants asserted that they have been informed that the respondents are “intending to proceed with takeover, break up and disbanding of group functions, expected to be complete before 30 June 2016”. They further asserted that Asciano, as the dominant holding company of Patrick Projects, has the ultimate authority for the implementation of the alleged corporate reorganisation. It was unnecessary at the outset to resolve this application because Patrick Stevedoring Pty Ltd gave an undertaking to the Court, through counsel, in terms satisfactory to the applicants, that until the disposition of the applicants’ substantive application, including any appeal, it, as the immediate parent of Patrick Projects, will not take any steps to either wind-up or to deregister Patrick Projects. Counsel for Patrick Projects, Ms Millar, was instructed also to act for Patrick Stevedoring for this limited purpose. However, as the originating proceedings are to be dismissed, for the reasons set out below, the applicants’ interlocutory application which sought relief until determination of the originating application should also be dismissed. Patrick Projects’ application This interlocutory application sought relief in the nature of striking out the applicants’ statement of claim and further by having the proceedings dismissed in their entirety. I will consider in turn the claims for relief under rule 16.21(e) and (f). Both require consideration of the statement of claim.The statement of claim

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.