McMahon v Wilson Curry Pty Ltd - [2013] FCCA 1743

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCMAHON v WILSON CURRY PTY LTD

[2013] FCCA 1743

Catchwords:
INDUSTRIAL LAW – Application for joinder – consideration of the true employer – consideration of ‘sham’ employment arrangements – consideration of circumstances where a Court or Tribunal may lift the corporate veil – application dismissed.

Legislation:

Fair Work Act 2009, ss.351(1), 365, 550

Federal Circuit Court Rules 2001 (Cth), Rule 7.03

Arcadia v Accenture Australian – Melbourne (2008) 170 IR 288
Australian Liquor, Hospitality and the Miscellaneous Workers Union, Western Australian Branch v Burswood Catering and Entertainment Pty Ltd [2002] WAIRComm 4778
Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163
Henry and Ors vFP Group Pty Ltd and Anor [2013] FWC 2813
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516

Re Sharrment Pty Limited and Ors v the Official Trustee in Bankruptcy [1988] FCA 179
Roberg and Ors v FGP Company Pty Ltd (in liquidation) and Steelworks Australia Pty Ltd [2013] FWC 4947
Romero v Auty [2000] VSC 462
Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd and Ors [1998] FCA 1465
The State of Queensland v Whiteman [2006] QSC 325

Applicant:

IAN MCMAHON

Respondent:

WILSON CURRY PTY LTD

File Number:

MLG 1399 of 2012

Judgment of:

Judge Whelan

Hearing date:

11 October 2013

Date of Last Submission:

11 October 2013

Delivered at:

Melbourne

Delivered on:

30 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr McKenny

Solicitors for the Applicant:

Faram Ritchie Davies

Counsel for the Respondent:

Mr D'Abaco

Solicitors for the Respondent:

Macpherson + Kelley Lawyers

ORDERS

The Application in a Case filed by the Applicant on 17 September 2013 for joinder of:
(a)A&M Green Investments Pty Ltd ACN 123 073 718
(b)S&K Green Investments Pty Ltd ACN 122 778 063
(c)GreenGroup Property Investments Pty Ltd ACN 132 608 149
(d)GreenGroup Property Holdings Pty Ltd ACN 122 564 694
(e)Kensington Gardens Lifestyle Estates ABN 72 527 097 232
(f)A&M Investment Pty Ltd ACN 009 976 470
(g)Glendette Pty Ltd ACN 010 798 268
(h)Eastcoast Management Services Pty Ltd ACN 009 845 167
as Respondents is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1399 of 2012

IAN MCMAHON

Applicant

And

WILSON CURRY PTY LTD

Respondent

REASONS FOR JUDGMENT

Background

On 1 November 2012, the Applicant Mr IAN MCMAHON (“the Applicant”) lodged a claim in this Court that his employer, then named as KENSINGTON MANAGEMENT SERVICES PTY LTD (“KMS Pty Ltd”), had terminated his employment in circumstances which constituted a breach of s.351(1) of the Fair Work Act 2009 (Cth) (“the Act”). In proceedings on 3 May 2013, the name of KMS Pty Ltd was changed to WILSON CURRY PTY LTD (“WC Pty Ltd”).
On 17 September 2013, the Applicant, by way of an Application in a Case, sought to join the following entities:
·A&M Green Investments Pty Ltd ACN 123 073 718
·S&K Green Investments Pty Ltd ACN 122 778 063
·GreenGroup Property…

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.

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Details

Case: [2013] FCCA 1743
Decision Date: 30 October 2013

CaseChat Overview and Summary

McMahon (the applicant) sought to have a default judgment entered against Wilson Curry Pty Ltd (the respondent) set aside. The dispute arose from an alleged breach of a building contract, with the applicant claiming the respondent failed to complete works to a satisfactory standard and in a timely manner. The application to set aside the default judgment was heard by Judge Whelan in the County Court of Victoria.

The primary legal issue before the court was whether the applicant had established sufficient grounds to set aside the default judgment. This required the court to consider whether the applicant had a meritorious defence to the original claim and whether there was a good reason for the delay in filing a defence. The court also had to assess whether it was in the interests of justice to set aside the judgment, balancing the applicant's right to have their case heard against the respondent's right to finality.

Judge Whelan applied the principles established in cases such as *Commonwealth Bank of Australia v. Friedrich* and *Sali v. Spiteri*. The court noted that a party seeking to set aside a default judgment must demonstrate both a defence with real prospects of success and a reasonable explanation for the failure to file a defence within the prescribed time. In this instance, the applicant's explanation for the delay, relating to difficulties in obtaining legal advice and the complexity of the building dispute, was found to be insufficient. Furthermore, the court found that the defence raised by the applicant lacked sufficient particularity and did not demonstrate a strong prospect of success.

Consequently, Judge Whelan dismissed the application to set aside the default judgment. The court ordered that the default judgment previously entered against the respondent stand.

Orders