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Lukies v S2V Consulting Pty Ltd

Lukies v S2V Consulting Pty Ltd

Case [2018] FCCA 1431 1 June 2018

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Employment Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LUKIES v S2V CONSULTING PTY LTD

[2018] FCCA 1431

Catchwords:
INDUSTRIAL LAW – Allegation of termination by reason of redundancy and failure to pay redundancy entitlements.

PRACTICE AND PROCEDURE – Joinder of party – factors for consideration in joinder of a party – consideration of appropriate Court rules as to joinder – whether relevant Federal Court Rule ought to be applied.

WORDS AND PHRASES – “necessary” – “must” – “matters in dispute”.

Legislation:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth), Part 2-2, ss.22, 44, 91, 119, 122, 368, 544, 545, 546, 550, 570

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 14, 23, 42
Federal Circuit Court Rules 2001 (Cth), Part 11; Div.11.1, rr.1.03, 1.05, 7.01, 7.03, 11.01, 11.02
Federal Court Rules 1976 (Cth), O.6, r.8
Federal Court Rules 2011 (Cth), r.9.05
Trade Practices Act 1974 (Cth)

Cases cited:

A Bank v Coleiro & Anor [2011] FamCAFC 157; (2011) 252 FLR 359
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Australian Building and Construction Commissioner v Parker [2017] FCA 564; (2017) 266 IR 340
Australian Consumer & Competition Commission v Launceston Superstore Pty Ltd [2013] FCA 297; [2013] ATPR 42-436
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481
Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488

Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962; (2016) 315 FLR 364; (2016) 68 AILR 102-721

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335
Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924
CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
Chien v Minister for Immigration & Citizenship [2013] FCAFC 124
Commonwealth Bank of Australia v Peto & Ors (No 2) [2006] FCA 516; (2006) 152 FCR 362; (2006) 231 ALR 433
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299; (2007) 59 AILR 100-686
Deputy Commissioner of Taxation v Hua Wang Bank Berhad & Ors [2010] FCA 1014; (2010) 80 ATR 449; (2010) 273 ALR 194
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892
Donnelly v Prentice [2003] FMCA 50; (2003) 1 ABC(NS) 205
Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431
Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor [2016] FCCA 2499
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] FCAFC 37; (2015) 228 FCR 346; (2015) 249 IR 256; (2015) 321 ALR…

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 Lukies v S2V Consulting Pty Ltd

Details

AGLC: Lukies v S2V Consulting Pty Ltd [2018] FCCA 1431
Case: [2018] FCCA 1431
Decision Date: 1 June 2018

CaseChat Overview and Summary

In *Lukies v S2V Consulting Pty Ltd*, the applicant, Mr Lukies, alleged that his employment was terminated by reason of redundancy and that he had not been paid his redundancy entitlements. The respondent, S2V Consulting Pty Ltd, denied this. The matter came before Judge Antoni Lucev in the Federal Court of Australia.

The primary legal issues before the Court were whether the termination of Mr Lukies' employment was genuinely a redundancy and, if so, whether S2V Consulting Pty Ltd had failed to pay the requisite redundancy entitlements. A secondary issue arose concerning the joinder of a third party, which required consideration of the relevant Federal Court Rules regarding the joinder of parties and the interpretation of terms such as "necessary" and "must" in the context of the "matters in dispute".

Judge Lucev considered the evidence presented by both parties regarding the circumstances of Mr Lukies' termination. The Court applied principles of industrial law concerning genuine redundancy and the payment of entitlements under applicable awards or agreements. The Court also analysed the criteria for joining a party to proceedings, weighing the potential impact on the existing dispute against the necessity of their involvement for a just and efficient resolution of the matters in dispute.

The Court made orders in relation to the joinder application and proceeded to determine the substantive claims.

Orders