Leung v Omnia Inclusive Employment Solutions
[2024] FedCFamC2G 175
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leung v Omnia Inclusive Employment Solutions [2024] FedCFamC2G 175
File number(s): SYG 235 of 2023 Judgment of: JUDGE STREET Date of judgment: 16 February 2024 Catchwords: FAIR WORK – no proper basis to justify the joinder of the second and third respondents – part of statement of claim struck out – leave to file amended statement of claim Division: Division 2 General Federal Law Number of paragraphs: 4 Date of hearing: 16 February 2024 Place: Sydney Applicant: Appeared via video and audio-link Solicitor for the Respondent: Mr L Meagher of Hall & Wilcox ORDERS
SYG 235 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHING YEE LEUNG
Applicant
AND: OMNIA INCLUSIVE EMPLOYMENT SOLUTIONS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Paragraphs 31 to 33 of the Statement of Claim filed on 9 February 2024 and the Amended Application filed on 9 February 2024 be struck out.
2.An amended Statement of Claim by the applicant, be filed and served on or before 15 March 2024, which properly articulates the basis for any proposed joinder of the second and third respondent with full particulars, and provides proper particulars and material facts in support of alleged loss and damage referable to the relevant alleged contraventions.
3.If the applicant wishes to pursue any joinder of the second and third respondents, an Application in a Proceedings together with a supporting affidavit must be filed on or before 15 March 2024 and served upon the second and third respondents on or before 22 March 2024.
4.The matter be stood over for further directions and the determination of any Application in a Proceeding, if filed, commencing at 9:30am on 5 April 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
5.Leave is granted to the parties to provide consent orders to chambers, if appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are fair work proceedings which the applicant commenced on 14 February 2023. The Court made orders on 7 December 2023 requiring the applicant file a proper statement of claim. The applicant has filed a statement of claim and an application that purports to join a second and third respondent. No leave was given to join new parties. The pleading filed provides no proper basis to identify the joinder of the second and third respondent, and the Court has struck out those paragraphs in the pleading purporting to make allegations against the second and third respondent and has given the applicant an opportunity to file an application in a proceedings, supported by an affidavit to justify the joinder of the second and third respondent, that the Court will determine when that comes back before the Court on 5 April 2024.
The Court also struck out the application filed on 9 February 2024 because leave has not been granted to join the second and third respondents at this point of time. The Court indicated that there is a case identified against the first respondent, other than the issues of proper particulars in respect of alleged loss, on the pleading up to paragraph 30. The allegation of loss and damage referable to the relevant contraventions is embarrassing for want of proper particulars quantifying the same with adequate specificity and adequate facts as to the causal link referrable to each alleged contravention. Subject to provision of such proper particulars of loss and damage as against the first respondent, the Court indicated that it would permit the matter to go forward for a final hearing, if the applicant did not wish to pursue any claim against the second and third respondents.
The applicant indicated she wishes to pursue the joinder, at this stage. The Court accordingly made orders facilitating the pursuit of that joinder application, if the applicant wishes to do so.
It is for these reasons that the Court makes the above orders.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 4 March 2024
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