LAL v BIBER - [2019] FCCA 3653

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAL v BIBER & ANOR

[2019] FCCA 3653

Catchwords:
INDUSTRIAL LAW – Interlocutory application – underpayment of entitlements – failing to make payments – penalties – claim against second respondent on basis they were ‘knowingly involved’ in underpayments – second respondent in liquidation – applicant did not seek leave to proceed against the second respondent – proceedings stayed by operation of ss.471B or 500(2) of the Corporations Act 2001 (Cth) – open to applicant to proceed against first respondent – leave sought to join third respondent – joinder of proposed third respondent allowed.

Legislation:

Corporations Act 2001 (Cth), ss.471B, 500(2)
Fair Work Act 2009 (Cth), s.550
Federal Circuit Court Rules 2001, r.11.02(2)
Wrongs Act1958 (Vic), s.24

Cases cited:

WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Ltd (In Liq) [2002] NSWIRComm 226
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd (in Liquidation) (ACN 118 143 972) & Anor [2012] FMCA 738
Construction, Forestry, Maritime, Mining and Energy Union v Asbestos Removalist Pty Ltd & Anor [2019] FCCA 529
SDAEA v Arora Markets Pty Ltd & Ors [2018] FCCA 85
Kendall v Hamilton (1879) 4 App Cas 504
Cullen v Knowles and Birks [1898] 2 QB 380
Ioannou v Baroda (Holdings) Pty Ltd [1983] VicRp 95; [1983] 2 VR 348
Brinsmead v Harrison (1812) LR 7 CP 547
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Osland v R [1998] HCA 75; (1998) 197 CLR 316
IL v The Queen [2017] HCA 27; (2017) 262 CLR 268
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Applicant:

JEEVAN LAL

First Respondent:

ERDENIZ BIBER

Second Respondent:

BIBER FOODS GROUP PTY LTD (ACN 147 008 946) AS TRUSTEE FOR THE BIBER TRUST T/A NEW GENERATION FOODS (ABN 71 760 858 529)

File Number:

MLG 422 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

3 December 2019

Date of Last Submission:

11 December 2019

Delivered at:

Melbourne

Delivered on:

13 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr White

Solicitors for the Applicant:

McDonald Murholme Solicitors

Counsel for the First & Second Respondents:

Mr Rollnik

Solicitors for the First & Second Respondents:

Sewell & Kettle

Counsel for the Proposed Third Respondent:

Mr Landross

ORDERS

Mandi Bacon be joined in the proceedings as the Third Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 422 of 2017

JEEVAN LAL

Applicant

And

ERDENIZ BIBER

First Respondent

BIBER FOODS GROUP PTY LTD (ACN 147 008 946) AS TRUSTEE FOR THE BIBER TRUST T/A NEW GENERATION FOODS (ABN 71 760 858 529)

Second Respondent

REASONS FOR JUDGMENT

The applicant filed a Statement of Claim on 1 March 2017 in the Federal Circuit Court of Australia to bring proceedings for underpayment of entitlements under the relevant award and for the imposition of penalties upon the second respondent for…

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.

Continue reading LAL v BIBER

Details

AGLC: Lal v Biber [2019] FCCA 3653
Case: [2019] FCCA 3653
Decision Date: 13 December 2019

CaseChat Overview and Summary

The applicant, LAL, sought interlocutory relief against the first respondent, BIBER, and the second respondent, a company in liquidation. The dispute concerned alleged underpayment of entitlements and penalties. The applicant had not sought leave to proceed against the second respondent, which was in liquidation, and therefore proceedings against it were stayed by operation of either section 471B or 500(2) of the *Corporations Act 2001* (Cth). The applicant remained at liberty to pursue its claim against the first respondent.

The primary legal issues before the court were whether the applicant could proceed against the first respondent despite the stay on proceedings against the second respondent, and whether leave should be granted to join a proposed third respondent to the proceedings. The applicant's claim against the second respondent was based on allegations of being 'knowingly involved' in the underpayments.

Judge Riethmuller determined that the applicant was entitled to proceed against the first respondent, as the stay on proceedings against the second respondent did not preclude action against other parties. Furthermore, the court found it appropriate to grant leave to join the proposed third respondent, allowing the applicant to pursue its claims against all relevant parties.

Orders