Kluck v Carpendale Agri Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Kluck v Carpendale Agri Pty Ltd [2025] FCA 705  

File number: QUD 157 of 2025
Judgment of: WHEATLEY J
Date of judgment: 27 June 2025
Catchwords: INDUSTRIAL LAW — Termination of employment purportedly on grounds of the Applicant’s poor performance — Application alleging that termination was adverse action taken for prohibited reasons, contrary to Pt 3–1 of the Fair Work Act 2009 (Cth) — Interlocutory application for reinstatement and restraining the Respondent from dispossessing the Applicant of residence and property owned by the Respondent pending hearing and determination of application or further order — Whether interim injunction should be made — Whether prima facie case for relief — Whether balance of convenience favours making of order — Where the Applicant delayed bringing application — Where compensatory damages are available in lieu of an order for reinstatement — Where the Applicant’s undertaking as to damages is of no value — Application for interlocutory relief dismissed.
Legislation: Fair Work Act 2009 (Cth) ss 12, 323, 340, 341, 342, 361
Cases cited:

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd [2025] NSWIC 3

Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961

Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32

Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd (2016) 266 IR 185; [2016] FCA 1582

Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215

Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd (2015) 237 FCR 534; [2015] FCAFC 127

Network Ten Ltd v Fulwood (1995) 62 IR 43

Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 467

Qantas Airways Limited v Transport Workers’ Union of Australia (2023) 278 CLR 571; [2023] HCA 27

Qantas v Transport Workers' Union of Australia (2022) 292 FCR 34; [2022] FCAFC 71

StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCAFC 200

Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249

Warner-Lambert Co LLC v Apotex Ltd (2014) 311 ALR 632; [2014] FCAFC 59

Williment v Commissioner of Taxation (2010) 190 FCR 234; [2010] FCA 8080

Workplace Institute Limited v IBM Australia Limited (2019) 147 IPR 13; [2019] FCA 1339
Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 99
Date of hearing: 6 May 2025
Counsel for the Applicant: Mr M Ziebell
Solicitor for the Applicant: Mills Oakley
Counsel for the Respondent: Mr B Kidston
Solicitor for the Respondent: Franklin Athanasellis Cullen Lawyers

ORDERS

QUD 157 of 2025
BETWEEN:

ANDREW JOSEPH KLUCK

Applicant
AND:

CARPENDALE AGRI…

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Details
Case
[2025] FCA 705
Decision Date

CaseChat Overview and Summary

In Kluck v Carpendale Agri Pty Ltd, the Applicant sought an interlocutory injunction for reinstatement and to restrain the Respondent from dispossessing him of the residence and property he occupied, which was owned by the Respondent. The Applicant alleged that his termination of employment was adverse action taken for prohibited reasons under Pt 3–1 of the Fair Work Act 2009 (Cth). The court was required to determine whether the Applicant had established a prima facie case for relief, whether the balance of convenience favoured making the order, and whether the Applicant had delayed in bringing the application. Additionally, the court considered whether compensatory damages were available in lieu of an order for reinstatement and whether the Applicant's undertaking as to damages held any value.

The Applicant contended that he had a prima facie case for relief; however, the court found that the balance of convenience did not weigh in favour of granting the interlocutory injunction. The Applicant's delay in bringing the application and the availability of compensatory damages in lieu of an order for reinstatement were considered. Furthermore, the Applicant's undertaking as to damages was found to be of no value as he had not provided any security to support it, and he owed a significant amount of money to his parents. The court concluded that the application for interlocutory relief would be dismissed.

The court relied on the broad scope of s 341(1)(a) of the FWA, which encompasses a present entitlement under a workplace law or workplace instrument to receive a benefit at some future stage of the employment relationship on the occurrence of an expected event or contingency. The court found that the Applicant's entitlement to the Preference Share Payment had not yet arisen, but that would not mean that his claim was not a workplace right.

The final orders of the court were to dismiss the claim for interlocutory relief in the amended application, reserve costs, and list the matter for case management on a date to be fixed. The decision highlights the importance of acting promptly in seeking interlocutory relief and the need for applicants to establish a prima facie case for relief, demonstrate that the balance of convenience favours making the order, and provide valuable undertakings as to damages.

Orders

Orders of the court

1. The claim for interlocutory relief in the amended application dated 23 April 2025 be dismissed.

2. Costs reserved.

3. The matter be listed for case management on a date to be fixed.

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

Background

Background to the litigation

It is clear that in all cases, an applicant seeking an interlocutory injunction is required to act promptly. What will be “prompt” will depend on the particular circumstances, including the facts of the case and the nature and circumstances of the matters involved.BACKGROUND I make the following observations regarding the background and other relevant matters to this application for interlocutory relief without making any final findings of fact. In this context, I also observe that none of the deponents who provided affidavit evidence were cross-examined. Final findings will be for determination after the trial and after the evidence is properly tested. However, it is relevant to make these observations to assess the two main inquiries which I need to consider on this application for interlocutory relief. The Applicant, via entities he controlled, operated a business known as Carpendale Farms (the Business) from approximately 2007 up until the sale to Laguna Bay. The Business premises is located on the Gore Highway in Goondiwindi. For the time that the Applicant operated the Business he resided at the Mayfair Homestead (the Homestead) with his wife and two sons. The Homestead is located approximately 10 kilometres from the Business premises. Pursuant to a document entitled the “Carpendale Sale Deed” dated 3 December 2021, entities controlled by the Applicant sold the Business and all of the assets (including farming equipment) and undertakings to Laguna Bay. It is a lengthy and complicated purchase agreement and it is not relevant for the purposes of this application to construe this agreement. The sale was completed in January 2022. Some or all of the consideration received was used to pay outstanding debts of the Applicant and related entities. On 26 January 2022, entities controlled by the Applicant and Carpendale Equipment Pty Ltd entered into a document entitled “Deed of Transfer and Share Subscription”, which relates to the transfer of equipment. On 28 January 2022, the Applicant and Carpendale entered into an “Employment Agreement”. As part of that Employment Agreement, the Applicant was provided with the use of a Toyota Landcruiser Ute (Ute) and Toyota Landcruiser Prado (Prado). Further, the Applicant contends he was also entitled to continue to reside in the Homestead. Without seeking to describe all of the provisions of the Employment Agreement, the Applicant’s position was that of “Executive Director”. Further, the Employment Agreement contained a termination clause as follows:17 Termination of employmentIn the event that either you or the Company decides to terminate your employment, the notice of termination that each party must give to the other in writing is 3 calendar months. If the Company terminates your employment, it may choose to make a payment to you in lieu of part or all of this notice period. During any period of notice, the Company may:(a)require you to not attend work and/or perform lessor or alternative duties;(b)require you not to have any contact with any employees, investors or business associates of the Company or any Related Company other than normal social contact; and/or(c)exclude you from all or any part of the Company’s and any Related Company’s premises.The Company may also terminate your employment immediately and without notice if you engage in any conduct that would give the Company the right to summarily dismiss you at law, including but not limited to where you engage in serious misconduct, refuse or fail to comply with any lawful and reasonable direction given by the Company, engage in conduct that would brin the Company into disrepute, materially neglect your duties and/or commit any serious or persistent breach of this agreement.On termination of your employment, the Company may off-set any debt, obligation or liability you owe to the company against your entitlements on termination. If, on termination of your employment, you are a director or secretary of the Company or any other Related Company, you must resign office as director or secretary (as applicable). With effect from termination of your employment, you irrevocably appoint any director of the Company to be your attorney and in your name and on your behalf to execute any document and do any thing necessary to effect your resignation as a director or secretary of the Company or any other Related Company.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Thirdly, the undertaking as to damages offered by the Applicant has not been shown to be of any value. The undertaking as to damages is often referred to as “the price of an injunction”: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 311-312, 318-319 and 324-325; also see Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249 at 253. Although the Applicant has offered the undertaking, he has not established that the undertaking is of any value. The Applicant has not offered any security to support the value of his undertaking: see Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [251]-[253]; also see Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 at [85]-[86]. The Applicant has actually given evidence that he owes a significant amount of money to his parents. Although this matter would not be determinative in and of itself, it does require consideration and weighs against the granting of an injunction.CONCLUSION I accept that the Applicant has a prima facie case. However, the balance of convenience does not weigh in favour of granting the interlocutory injunction. For these reasons, the application for interlocutory relief will be dismissed.

Ratio Decidendi

Legal Principle Established

Carpendale submits similarly on the implied terms case, that it rises no higher than a speculation. Consideration In Qantas, Kiefel CJ, Gageler, Gleeson and Jagot JJ described the operation of s 341(1)(a) of the FWA as follows at [34]-[35]:[34]The reference in s 341(1)(a) to a person having a workplace right if the person is entitled to the benefit of a workplace law or workplace instrument is sufficiently broad to encompass a present entitlement under a workplace law or workplace instrument to receive a benefit at some future stage of the employment relationship on the occurrence of an expected event or on the occurrence of a contingency. In this way, s 341(1)(a) has a forward-looking dimension. For example, s 108 provides that an employee who engages in an eligible community service activity, such as jury service or volunteer bushfire fighting, “is entitled to be absent from his or her employment” in certain circumstances. An employee “has” a workplace right in the nature of an entitlement to the benefit of s 108, although the circumstances for asserting that entitlement have not arisen and may never arise.[35]Thus, a person can have a workplace right, comprising an entitlement to the benefit of a workplace law or workplace instrument, within s 341(1)(a), even though the person’s capacity to exercise the workplace right may depend on accrual over time or on the occurrence of a future event or contingency. The broad scope of s 341(1)(a) is confirmed by the Explanatory Memorandum, which states that “[a] benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (eg, long service leave)”.[emphasis added, footnote references omitted] Therefore, that the Applicant’s entitlement to the Preference Share Payment has not yet arisen, at least on a prima facie basis, would not mean that his claim may not be a workplace right. The workplace right relied on is the separate statutory entitlement for payment under s 323 of the FWA. Relevantly, that section provides:323 Method and frequency of payment(1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:(a) in full (except as provided by section 324); and(b)in money by one, or a combination, of the methods referred to in subsection (2); and(c) at least monthly.Note 1: This subsection is a civil remedy provision (see Part 4‑1).Note 2:Amounts referred to in this subsection include the following if they become payable during a relevant period:(a) incentive‑based payments and bonuses;(b) loadings;(c) monetary allowances;(d) overtime or penalty rates;(e) leave payments. The word “payable” is significant in subsection (1) and in Note 2. The ordinary meaning of the word “payable” would be an amount owed, or due, that is already outstanding. However, in interpreting this provision, the text must be read in context, which would include s 341(1)(a). Carpendale submitted that Note 2 was referring to amounts which had already fallen due. The parties’ submissions at the hearing of this interlocutory application did not delve into the relevant authorities or the legislative history and context of the provision to determine the meaning of the word “payable”.