Mondal v Transclean Facilities Pty Ltd
[2020] FCCA 1334
•28 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONDAL v TRANSCLEAN FACILITIES PTY LTD & ANOR | [2020] FCCA 1334 |
| Catchwords: INDUSTRIAL LAW – Fair Work – interlocutory application for summary dismissal – summary judgment – interlocutory application to strike out statement of claim – interlocutory application for discovery – procedural orders – no order as to costs. |
| Legislation: Fair Work Act 2009 (Cth), ss.357, 544, 545, 550, 570, 793 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 17A, 43, 45 Federal Court of Australia Act 1976 (Cth), ss.31A Federal Circuit Court Rules 2001 (Cth), rr.13.07, 13.10 Federal Court Rules 2011 (Cth), rr.16.02, 16.21 |
| Cases cited: Kalayzich v Santa Sabina College & Anor [2020] FCCA 11 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 551 Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 Abrahams v Qantas Airways Limited (No.2) (2007) 210 FLR 314 Australian Building & Construction Commissioner v CFMEU & Ors (No.5)[2018] FCCA 1100 |
| Applicant: | SUBRATA KUMAR MONDAL |
| First Respondent: | TRANSCLEAN FACILITIES PTY LTD (ACN 141 630 355) |
| Second Respondent: | SHAYAN DATTA |
| File Number: | MLG 744 of 2019 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | On the papers |
| Date of Last Submission: | 11 May 2020 |
| Delivered at: | Melbourne (by telephone) |
| Delivered on: | 28 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hooper |
| Solicitors for the Applicant: | Rangi Lawyers |
| Counsel for the First Respondent: | Mr Catlin |
| Solicitors for the First Respondent: | Stephen Peter Byrne |
| Counsel for the Second Respondent: | Mr Misso |
| Solicitors for the Second Respondent: | Neesham White Gentle |
ORDERS
The statement of claim filed 12 December 2019 be struck out.
The applicant file and serve an amended statement of claim on or before 30 June 2020.
If the applicant files and serves an amended statement of claim, the first and second respondents file and serve an amended defence on or before 4 August 2020.
The application in a case filed 16 March 2020 and the application in a case filed 26 April 2020 be otherwise dismissed.
The proceedings be adjourned 20 August 2020 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 744 of 2019
| Subrata Kumar Mondal |
Applicant
And
| Transclean Facilities Pty Ltd (ACN 141 630 355) |
First Respondent
| Shayan Datta |
Second Respondent
REASONS FOR JUDGMENT
Introduction
We are in the midst of a global pandemic caused by the spread of COVID-19.
The onset of the crisis caused by COVID-19 has been a kairotic moment for the whole community. As a result of State and Commonwealth government health directives steps are being taken to enforce what has been referred to as “social distancing”. To help with maintaining public health, the attention to regular cleaning of public spaces and high touch surfaces in all businesses including our public transport networks is more important than ever.
This case concerns a claim by someone who worked as one of the cleaners in the Victorian metropolitan transport network before the world changed as a result of COVID-19.
In Kalayzich v Santa Sabina College & Anor [2020] FCCA 11 at paragraph [134] it was observed:
“...[I]t is pertinent to note that the Federal Circuit Court, unlike the Federal Court, is not generally a court of pleadings. Matters most commonly proceed in the absence of pleadings on the basis of written evidence. It is with this in mind that this Court has simply adopted the rules of the Federal Court in relation to pleadings for the relatively small number of cases in which pleadings are necessary. The Parliament has tasked this Court to deal with matters of less complexity than those dealt with by the Federal Court and the Family Court. …. Drawn out interlocutory disputes as to the quality of a pleading so sought and provided are alien to the normal practice and procedure of the Court and should, in my view, be discouraged.”
In the context of this case, and the current dispute before the Court, those comments are apposite.
Background
Since around 2011, Subrata Kumar Mondal (“the applicant”) claims that he had been involved in cleaning metropolitan train stations in the Victorian public transport network. In March 2019, the applicant commenced proceedings in the Fair Work Division of the Court against Transclean Facilities Pty Ltd (“the first respondent”) which holds a contract with Metro Trains Melbourne to carry out cleaning work at various Victorian metropolitan train stations.
The progress (and precise identification) of the issues between the parties (including whether the applicant has correctly articulated the claims he has made, or still makes (and against who)) has become problematic. There are now presently three parties to the proceedings however, the dispute which is the subject of these reasons only concerns the applicant and the first respondent.
It is necessary to rehearse (albeit in an abbreviated manner) some of the procedural background to date. The applicant filed an application, Form 4 and a document titled “Points of Claim” on 17 March 2019. Directions were made on 30 April 2019 for inter alia the first respondent (the only respondent at that time) to file a response and “Points of Defence”, the parties attend a mediation on 19 July 2019 and the matter was programmed for a trial (which was to be held in February 2020).
Problems emerged almost immediately. It was necessary to extend time for the first respondent to file a response (and a costs order followed). The first respondent then filed “Points of Defence” and a cross claim on 10 July 2019. Predictably, the mediation which was held 9 days later was unsuccessful.
Later that same month, on 28 July 2019 the applicant filed an application in a case seeking to file an amended “Points of Claim”. When that application in a case came before the Court on 15 November 2019 it was accepted by both parties that the matter could not progress to trial in February 2020. Orders were made for the proceedings to proceed by way of pleadings and directions were made for that purpose. The February date was maintained for directions only.
The applicant then (for the first time) filed a statement of claim on 12 December 2019 (see Annexure A). In that pleading the applicant named ‘Transclean Facilities Pty Ltd’ as the first respondent and Mr Datta (an employee of the first respondent) as the second respondent. In his statement of claim the applicant alleged inter alia that between 2011 and 2017 he worked with entities associated with (and for periods worked directly as an employee for) the first respondent. The applicant made a number of claims of contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) arising from what he alleged did or did not do on during that period.
Importantly, not only did the (first) statement of claim omit allegations (and the relief sought as a result) that had been ventilated in his ‘Points of Claim’ earlier in the proceedings, but made claims over, and dating back to, a period that was statute barred.[1]
[1] see s.544, 545(5) of the FW Act 2009 (Cth).
When the first respondent filed a defence on 15 January 2020 (see Annexure B) it appeared to have abandoned its cross claim (as had been contained in the “Points of Defence”), and whilst admitting the applicant had been an employee for a brief period from 2016 to 2017, the first respondent otherwise denied the allegations and claims made by the applicant.
When the proceedings returned to Court on 17 February 2020 for directions, the second respondent had only just been served with the statement of claim and had not filed a defence. At that directions hearing, the first respondent flagged that it wished to agitate an application for the proceedings to be summarily dismissed.
Accordingly, orders were made programming the matter for an interlocutory hearing on that issue (as well as allowing time for the second respondent to file a defence).
Interlocutory applications
First application in a case
As contemplated in the orders made on 17 February 2020, the first respondent filed an application in a case on 16 March 2020 (“first application in a case”) supported by an affidavit of Mr Aguila filed 16 March 2020 seeking the following orders:
“1.Pursuant to order 13.07, summary judgment be given for the respondents.
2.Pursuant to order 13.10, the applicant’s claims be summarily dismissed.
3.Such further or other order as the Court thinks appropriate.
4.Costs.”
The applicant filed a response to that application in a case on 7 April 2020 supported by an affidavit of Mr Subrata Kumar Mondal, opposing the relief sought by the first respondent in the (first) application in a case.
The orders of 17 February 2020, made before the onset of the COVID-19 pandemic in Australia, had provided for the hearing of the interlocutory dispute to be held in open court. Given the public health directives and the State and Commonwealth government restrictions on the operation of the courts, a telephone mention was convened on 15 April 2020 to establish whether the dispute could be dealt with on the papers.
At the telephone mention, the second respondent still had not filed a defence and orders were made for inter alia the first respondent to file and serve a further application in a case for discovery (“the second application in a case”).
Second application in a case
As was contemplated in those orders, the first respondent filed the second application in a case on 26 April 2020 supported by an affidavit of Mr Byrne (its solicitor) also filed on 26 April 2020.
The applicant filed a response to the (second) application in a case on 7 May 2020 supported by an affidavit of Mr Rangi (his solicitor) filed on the same day.
Position of the parties
The first respondent filed written submissions on 1 May 2020 and the applicant filed submissions in reply on 7 May 2020. It will be necessary to refer to those submissions in detail below to illustrate the position of both parties on the interlocutory applications.
On 11 May 2020 at a telephone mention, given the applicant and the first respondent had each filed written submissions addressing the issues raised in the first and second applications in a case, it was agreed those disputes could be determined on the papers.
Neither party contended it was necessary for the second respondent (who had by then obtained separate representation and filed a defence on 28 April 2020 (see Annexure C)) to be involved in the resolution of those interlocutory disputes. This was also the position taken by the second respondent at the telephone mention.
Pleadings
Before turning to the submissions of the first respondent and the applicant on each of the interlocutory applications, it is timely to note the following about the current pleadings.
The statement of claim filed 12 December 2019 is at Annexure A, the first respondent’s defence is at Annexure B and the second respondent’s defence is Annexure C to these reasons.
The statement of claim alleged that the applicant worked for, and was employed by six different (what were described by the applicant in submissions as “straw”, “middleman” or “middlemen”) companies between 2011 and 2017.
The statement of claim makes similar allegations of breaches of what were said to be the applicable industrial instruments against all six companies during the period of the requisite employment and alleges that the second respondent knew this and he and the first respondent, were accessorily liable as a result.
Nowhere in the statement of claim is there any reference to s.357 of the FW Act. In Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 551 at paragraphs [538] to [539] the Court made the following comments in relation to s.357:
“538.Section 357 is an important legislative protection against the exploitation of labour. Gilmore J observed in Australian Building and Construction Commissioner v Inner Strength Steel Fixing Pty Ltd [2012] FCA 499 at [14] that:
“The legislature has prohibited the practice of sham contracting because it undermines the protections afforded to employee by Australian industrial relations laws and instruments. Sham contracting arrangements enable employers to avoid legal obligations such as payment of payroll tax, workers compensation premiums, employee entitlements and superannuation contributions.”
539. Furthermore, as his Honour said at [30]:
“The establishment of unlawful sham contract arrangements is objectively serious. Sham contracting, by its nature, provides a company with an unfair advantage over its competitors in that the company’s operating expenses are unlawfully reduced, making it more competitive against its rivals and providing increased company revenue.””
Moreover, beyond references to s.550(2) and s.550(1) (along with s.793 of the FW Act), nowhere in the statement of claim is there any particularisation of or under what subsection of s.550(2) are either the second or first respondent said to be involved.
In Fair Work Ombudsman v Hu [2019] FCAFC 133 it was said at [15]:
“Although the terms of s.550 have given rise to some potential divergence in the authorities (cf. Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [14] to [15], (2018) 282 IR 86 at 90 to 91 per Flick, Bromberg and O’Callaghan JJ), that which is established has been summarised, in part, as follows by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365:
Relevant principles
[176]Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …
[177]Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …
[178]The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].
[179]As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge. (extracts omitted).”[2]
[2] see also Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [10] – [15].
Whilst the “middlemen” companies are referred to in the statement of claim, the first respondent notes that none are named as parties to these proceedings and in any event given s.544 & 545(5) of the FW Act, a number of the applicant’s claims are statute barred.
The first respondent admits to contracting with (but denies employing each of the directors) of the “middlemen” companies as well as denying the applicant sent “invoices” to the second respondent or that he arranged payment of those invoices to the applicant.
Whilst taking issue with the pleadings in the statement of claim the first respondent, in their submissions, does not engage with the interaction between s.793 and s.550 of the FW Act and how liability can be found as a result.[3]
[3] see approach in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [51] to [58] and [300] and authorities referred to.
Despite the disjunct between the positions of the parties they do agreed on some things including that the applicant was employed by the first respondent, albeit that they disagree for how long. The first respondent says it was only from early 2016 to 2017.
Consideration
Given the order in which the first respondent filed the two applications in a case (on 16 March 2020 & 26 April 2020 respectively) it is convenient to consider the orders sought in the same order.
Application for summary dismissal/ strike out
The first application in a case filed on 16 March 2020 sought the orders as set out in paragraph [16] above.
The first respondent’s submissions filed on 1 May 2020 in support of the first application in a case were as follows:
”1.The First Respondent (“Transclean”) filed an application on 17 (sic) March, 2020 to strike out the statement of claim (“SOC”) dated 12 December, 2019 relying on rules 13.07 and 13.10 to strike out or summarily dismiss the claim. In support the First Respondent relies on affidavits:
(a) Stephen Peter Byrne sworn 24 April, 2020;
(b) Nelson Aguila sworn 22 April, 2020;
(c) Nelson Aguila sworn 16 February, 2020;
(d) deficiencies inherent in the SOC.
…
3.The current SOC has five categories of fatal flaw or deficiency:
a.any losses up to 12 December, 2013 are statute barred;
b.the claims of accessorial liability are confused, tenuous, do not benefit from any reverse onuses or deeming provisions under the Act and should not be allowed to proceed;
c.the hours claimed to have been worked are factually impossible;
d.the Applicant was a genuine sub-contractor by reason of inter alia, employing people himself, having multiple ABNs, being in partnership with his wife;
e.the Applicant is refusing to disclose where he worked and what he did and simply claims to be paid under an award.
…
Argument
Statute bar
6.The Act has a six-year limitation period. The Applicant has been warned that a substantial part (2.5 years) of his claim is statute barred. This has also been ventilated in court and in correspondence from Transclean. What should have happened is the excision of those parts of the SOC that precede 19 December 2013. Why this has not happened is not clear.
7.Thus the claims relating to CF Services Pty Ltd and part of the claims relating to Royal Facilities Services Pty Ltd should not be in the SOC.
8.It is a burden to both the Court and the Respondents to have to deal with irrelevant matter. The calculations of loss are entirely wrong as a consequence. It is vexatious to keep statute barred claims in the SOC, especially when civil penalties are claimed on them.
Accessorial liability
9.Liability for work for entitlements is said to arise from work conducted by the Applicant for:
(a)CF Services Pty Ltd;
(b)Royal Facilities Services Pty Ltd;
(c)Platform Cleaning Services Pty Ltd SOC[6];
(d)SNG 69 Pty Ltd SAOC[7];
(e)MMGT Enterprises Pty Ltd SOC[8];
(f)MML Cleaning Services Pty Ltd SOC[9]. (together the “six entities”)
10.These entities are not parties to the proceeding. Instead, the Applicant alleges a tenuous basis for “involvement” as defined by s.550(2) of the Act as follows:
(a)the directors of each of the six entities (different people) were employed by Transclean;
(b)Transclean was related to each of the entities;
(c)Transclean employed the director;
(d)Transclean controlled each entity;
11.These allegations of employment by Transclean of the directors are denied and are unsupported by anything. The allegations of relations between entities are easily disposed of as a matter of law.
12.A relationship between Companies is defined by s.50 of the Corporations Act. It involves such matters as cross shareholdings or directorships of different entities all being from the same immediate family. None of that is alleged. At least the legal elements that support a relationship might have been alleged by the Applicant. Instead there is a bare allegation of a relation.
13.The next basis is that each director was employed by Transclean. This is denied.
14.The next basis is “control”. This also has a Corporations Act definition per s.50AA which states as follows:
(1)For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(2)In determining whether the first entity has this capacity:
(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
15.The control particularized is incoherent. In each case it is said the control derived from the director being employed by Transclean and Transclean:
..directing (the director) to cause CF to perform a payroll function in relation to the cleaning work performed by the Applicant, including by way of CF paying the Applicant monies for performing cleaning work.
16.Transclean submits the control allegation is incoherent. The control particularised above is duplicated for each of the six entities and is thus incompetent for each of the six.
17.For completeness, each director is alleged to have been “involved” but they are not joined as parties.
18.It is admitted by Transclean that each of the six entities had contracts with it at various times. That is not sufficient to establish involvement in the Applicant’s relationships with the six entities for the purposes of s.550(2) of the Act.
Independent -contractor
19.There is significant evidence to the effect that the Applicant satisfied at least 4 keys elements that the Court may consider in deciding whether an Applicant is an employee:
(a)whether he employs people himself;
(b)whether he works for others as well as the Respondent/alleged employer;
(c)whether his tax affairs are consistent with operating as a business as opposed to being an employee;
(d)whether he performed work as part of a genuinely separate business
20.Transclean pleads that other indicia of employment are not present, ie uniforms, equipment and associated materials, instructions: Response at 15(c) – (f).
21.The elements of a sham employment contract involvemes (sic) numerous considerations which are not re-stated here on the basis that they are known to the court.[4] The ultimate question is whether the worker is acting for another or on their own behalf.[5]
[4] Stevens v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16, 37.
[5] see also On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No. 3) (2011) 206 IR 252 at paragraph [208].
Employing others
22.The Applicant claims to have worked considerable hours that are non-sensical in the context of the shifts strictly available to workers on the railway stations. The shifts are simply
(a)6am to 12 noon (maximum 6 hours);
(b)1pm to 5pm ( maximum 5 hours)
As such, 11 hours a day was the maximum available to him. While some of those hours might constitute work outside the shifts is not possible.
23.Certain numerical limits to the Applicants possible working hours are thus readily calculated. They are:
(a)11 hours a day Monday to Friday;
(b)55 hour weeks are the practical limit unless the Applicant works for other entities.
(c)242 hours a month is the practical limit;
(d)the relevant award was for a 38 hour week (clause 8.2).[6]
[6] as pleaded at paragraph [18] of the response.
(e)Transclean employed people Monday to Friday.[7]
[7] as pleaded at paragraph [18].
Nelson Aguila deposes to this in his affidavit of 22 April, 2014.
24.In those circumstances the hours set out in the table to the claim should be viewed with considerable skepticism. Examples of the absurdities are as follows:
(a)the Applicant alleges having worked 986 hours in the month of July, 2012 equating to 31 hours a day;
(b)the Applicant claims to have worked 552 hours in September, 2017 or 18.4 hours a day;
(c)in 2013-2014 the Applicant is routinely working 400 hours a month but in some cases much more:
· (i) October, 2013 600 hours;
· (ii) May 2013 584 hours;
· (iii) April, 2014 600 hours;
· (iv) October, 2014 680 hours
· (v) April 2015 630 hours
· (vi) April 2016 730 hours.
The impossibility of the numbers is also evident in Mr Aguila’s chart exhibited to his 16 Feb affidavit. The average hours a day alleged to have been worked is 14 which is impossible.
22.Transclean submits a clear inference open to the Court is that the Applicant is employing other people and charging his respective employers (the six entities) for their labour.
23.As stated in the defence [15] the Applicant:
(a)has two ABNs 6575 7858 527 and 5183 1284 688
(b)one of his ABNs records him as operating in partnership with T Modal;
(c)the Applicant has rendered invoices imposing a GST surcharge between December, 2014 and May, 2017.[8]
[8] these are yet to be exhibited.
24.Transclean has warned the Applicant that:
(a)Transclean paid him $9,026 in 2016;
(b)He told the ATO he earned $40,537 in 2016.
This information is exhibited to the affidavit of Stephen Byrne sworn 29 April, 2020, namely the Applicant’s tax summary and his Transclean tax.
25.Two matters flow from this. The Applicant has clearly differentiated his employment. He is employed by Transclean but also earns other income of $31,511. He was content to paid by two separate employers at least in the year 2016 as another employer paid him $31,511.
26.The Applicant’s SOC claims states that he was paid $75,273 by MML Cleaning Services in the 2016 financial year[9] not $40,537 he told the ATO he was paid. Transclean submits such as discrepancy is no small matter for the reasons:
[9] see pg. 29 of the statement of claim
(a)the table denoting a total of $75,273 appears to have a common format with the other tables for other years and the other entities to whom he was contracted;
(b)by reason of (a) the same source documents used for (a) were probably used for other years;
(c)the tables for other years therefore must prima facie be in doubt;
(d)the discrepancy suggests dishonesty;
(e)the probative nature and necessity for the documents Transclean seeks by its discovery application becomes urgent and obvious.
What jobs does the Applicant do and where ?
27.There is another significant difficulty in that Transclean had contracts to do a range of matters including trams, tram depots, trains stations, trains and some transport yards. Accordingly, Transclean has some capacity to cross check the hours alleged to have been worked by checking whether the type of work and location of work asserted by the Applicant match with the hours he says he worked.
28.The Applicant refers to discussing and agreeing to “cleaning work” at SOC 2(a). What actual work he did and where disappears in a simple reference to work categories set out in the award: see SOC 4 i.
29.Aguila believes the Applicant was working on the Hurstbridge and South Morang train lines. In Aguila’s words, some works are only performed in particular time windows. This is visually represented by graphs exhibited to Aguila’s affidavit. As Aguilla states[10], to work the hours alleged the Applicant would have to be at different places at the same time because the lengths of the shifts are no sufficient to support the hours worked.
[10] see affidavit filed 16 February 2020 at paragraph [20]
Principles
30.The principles whether they be:
(a)Section 17A of the Federal Circuit Court of Australia Act 1999(Cth);
(b)s 570(2)(a) of the FW Act;
(c)rules 13.07.
merge into the same question of whether there are reasonable prospects of success of the claim. Transclean submits the current claim needs to be re-pleaded at least. This will be the fourth iteration of the claim.[11] The amendments needed are not fine tuning. Major amendments are needed. For major amendments to be needed at the fourth iteration bespeaks an ability to formulate a proper claim at all.
31.Fairness dictates that if Transclean is to be put to further costs it should have the costs of the proceeding to date and the costs of this application fixed and made payable forthwith.
32. Transclean seeks to place particular reliance on rule 13.10 (b) and (c):
· The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
· (b) the proceeding or claim for relief is frivolous or vexatious; or
· (c) the proceeding or claim for relief is an abuse of the process of the Court.
[11] the first filed on 17 March 2019 , the second filed on 28 July 2019 and the third filed on 12 December 2019.
33. The vexation derives from:
(a)the continued prosecution of claims that are timed barred;
(b)the continued failure to particularise the nature of the work done and location so Transclean can verify the claim;
(c)the incoherence of accessory liability claims;
(d)the impossibility of the hours claimed;
(e)the claim being onto the fourth iteration.
34. The Court should also have regard to the Applicant’s attempt to scandalize and prejudice Transclean by appending to its second SOC a media article (ABC website) about an unrelated unfair dismissal claim. This was a crude attempt to embarrass and intimidate Transclean. Such conduct is not needed to support a meritorious claim…”
The applicant’s submissions filed on 7 May 2020, opposing this application were as follows:
“3.The Applicant submits that strike out and summary dismissal applications are not readily granted, and it is up to the First Respondent to establish for the Court that the Applicant has no reasonable prospects of successfully prosecuting his claim.
4.It is difficult to discern how the First Respondent could succeed in having the Applicant’s claim summarily dismissed.
STRIKE OUT / SUMMARY DISMISSAL APPLICATION
Statute barred
5.The First Respondent complains that the Applicant claims for loss going back more than six years before the date he filed his claim in the Court (claim being filed on 19 December 2019).
6.This may be correct, however the Applicant claims loss for a period from 2011 to 2017, therefore there can be no argument that the majority of his claim is not statute barred.
7.Further, the Applicant agreed with the Second Respondent to do work for the benefit of the First Respondent in 2011. It was in 2011 that the First Respondent commenced having the Applicant invoice a string of six third party companies for his services. Therefore, for the sake of clarity, the claim is pleaded from 2011.
8.The Applicant will not press for compensation for unpaid Award entitlements that date from earlier than 13 December 2013 at hearing.
9.However, evidence from earlier than 13 December 2013 will be relevant to determining facts and issues in dispute such as:
a.Who did the Applicant agree to work for in 2011 – the First Respondent or CF Services?;
b.Did the Second Respondent negotiate the agreement with the First Respondent to perform work and if so what were the terms of the agreement?;
c.Was the Applicant engaged as an employee or contractor?
10.The First Respondent did not seek any assurance from the Applicant that he would not press for compensation for loss that occurred more than six years before he filed his claim, prior to the First Respondent filing an application for strike out or summary dismissal. For this reason the Applicant’s application was premature.
11.In any event, an application for part of the claim to be struck out on the basis that it is statute barred does not support an application to have the residue of the claim, being the major part of the claim that is not statute barred, from being struck out.
Accessorial liability
12.In this matter the Applicant alleges that the First Respondent was an accessory as per s.550 of the Fair Work Act (the Act) to Modern Award breaches.
13.The First Respondent says that it did not have an employment or even a contractual relationship with the Applicant, as there were “middlemen” companies between the First Respondent and the Applicant.
14.The Applicant says that the middlemen companies were straw companies and that the First Respondent was an accessory via s.550 of the Act to the middleman companies breaches of the Award.
15.The middleman companies, of which there six that came and went at short order, are of no substance and in the man deregistered. Therefore, the focus of the Applicant’s claim is against the First Respondent. It is the First Respondent that makes money on large cleaning contracts with Metro Rail.
16.The First Respondent seems to misconceive that the Applicant is seeking to establish that the First Respondent controlled the middlemen companies in the s.50AA of the Corporations Act sense. That is not the case.
17.Instead, the Applicant is seeking to establish that the First Respondent was an accessory to the middleman companies breaches of the Award. In order to achieve that, the Applicant has to establish that the First Respondent had knowledge of the middleman companies Award breaches and was an intentional participant in such breaches. It is not necessary for the First Respondent’s knowledge and participation in the Award breaches to amount to the First Respondent “controlling” the middleman companies.
18.The Applicant points to facts that clearly suggest the First Respondent was involved with the middleman companies and Award breaches, including:
a.prior to commencing the work the Applicant met and negotiated with the Second Respondent who has worked for the First Respondent at all relevant times;
b.he was instructed to invoice a series of middleman companies by the Second Respondent who worked for the First Respondent at all times;
c.the Applicant sent his invoices to the Second Respondent at all relevant times despite the fact that the invoices were made out to six different companies in line with the Second Respondent’s instructions;
d.so far as the Applicant can determine the middlemen companies were straw companies which did not contract to perform work for anyone other than the First Respondent .
19.It is true that since the parties were last before the Court the First Respondent’s solicitor, Mr Byrne, has emailed the Applicant’s solicitor to say that the First Respondent does not have wage records for the directors of the middlemen companies. However, given that straw nature of the middlemen companies and that the Applicant always sent his invoices to the Second Respondent rather than the middlemen companies, the Applicant seeks further discovery to clarify this issue (discovery as per request in the affidavit of the Applicant’s solicitor dated 7 May 2020).
20.The First Respondent alleges that the Applicant’s allegations against the middlemen companies are tenuous. In response, the Applicant alleges that the First Respondent’s use of the straw middlemen companies makes it difficult for the persons performing work for it, such as the Applicant, to bring claims against it.
21.In any event, the Applicant seeks further discover as referred to above in order to be able to substantiate his claim that the First Respondent was an accessory to the breaches of Award by the middlemen companies.
Independent contractor
22.Simply put, whether the Applicant was an employee or contractor is a question for substantive hearing. As in most such disputes, there are indicia pointing each way. It is only upon a careful gathering and examination of the indicia, and then a balancing of said indicia, that the Court will be able to determine this question. In any event, there is no basis for the Court to conclude that the Applicant’s claim that he had the status of employee and not contractor should be struck our or summarily dismissed.
“Employing others”
23. The First Respondent says that based on the hours that shifts were usually worked at railway stations and the number of hours for which the Applicant invoiced, he must have been employing others to help him to work such large amounts of hours.
24.It should be noted that the First Respondent has picked out a handful of months from the years that the Applicant worked. The First Respondent does not address the rest of the time the Applicant cleaned railway stations and trains for the First Respondent’s benefit.
25.Further, the Applicant has provided explanation for spikes in hours by way of affidavit (for example, a certain month’s invoice contained hours for the preceding month as well thereby increasing the hours in the invoice).
26.Furthermore, regardless of the number of hours of the Applicant claims to have worked, there is no basis for the First Respondent to submit that the Court should conclude that the Applicant must have been “employing others”. It would be even more unsound for the Court to then determine the Applicant’s claim should be struck out or dismissed on an inference that he employed others, and if a person employs others then they cannot be an employee.
27.The matters of the hours the Applicant worked and claims underpayment, and whether or not he employed others, should not be conflated and are separate and discrete matters appropriately determined after substantive hearing.
Tax issues?
28.It appears that the First Respondent submits at paragraphs 23 to 26 of its submission that the Applicant may have issues with the ATO. The Applicant holds no such fears, and in any event those are matters for him and not the First Respondent.
29.The Applicant notes that tax complications usually follow in situations where contractor arrangements are imposed on workers who are employees in the eyes of the law. The tax complication is a symptom the employer having imposed the wrong relationship, rather than being an indication that a worker is truly and in the eyes of the law a contractor.
Summary re strike out and summary dismissal
30.The Applicant has not demonstrated that the Applicant has no prospects of successfully prosecuting his claim so there is no basis to summarily dismiss his claim.
31.There is no basis to strike out any part of the Applicant’s claim. That being said, the Applicant has sought specific discovery from the First Respondent and may replead relationships between the First Respondent and the middlemen companies based on what the First Respondent discovers. Further, the Applicant may need to subpoena the individuals who are recorded as shareholders and directors of the middlemen companies…”
Putting to one side for present purposes the concession(s) made in the applicant’s submissions what is immediately apparent is the applicant and his solicitor appear to still be coming to grips with the task of trying to articulate the case he wants to make and against who as well as foreshadowing (and assuming they would get leave for) further amendments to the statement of claim.
Approach to summary dismissal/strike out application
The “Applicable Principles” in the Federal Court were summarised by McKerracher J in Zaghloul v Woodside Energy Limited(No. 7) [2019] FCA 818 at paragraph [23] as follows:
“23.The relevant test to be met under both s 31A(2) of the FCA Act and r 26.01(1)(a) of the Rules requires Woodside to satisfy the Court that Dr Zaghloul ‘has no reasonable prospect of successfully prosecuting ... part of the proceeding’. It is unnecessary to refer extensively to the relevant procedural cases. The principles are well established and have been previously considered in detail: see, for example, Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 (at [3]), where I said:
“Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:
· the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;
· a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd [2008] FCA 1305; (2008) 250 ALR 82 per Logan J (at [41]);
· there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd [2016] FCAFC 26; (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);
· s.31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) [2013] FCA 526; (2013) 214 FCR 543 per Flick J (at [115]);
· if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 per Gordon J (at [127]);
· it is clear that the legislature’s intention in enacting s.31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);
· s.31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);
· summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);
· the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 per Perry J (at [37]);
· despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);
· the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 per Reeves J (at [46]); and
· each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).”
Finally, and as referred to at the beginning of these reasons, there is an overview of the “Relevant Principles” for an application such as the first application in a case when it is filed in this Court are set out in Kalayzich v Santa Sabina College & Anor [2020] FCCA 11 at paragraphs [20] to [27].
The principles and approach set out in the above mentioned decisions that will now be applied in the context of the orders sought by the first respondent in the application in a case filed 16 March 2020.
Resolution of summary dismissal/strike out application
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”), makes specific provision for the Court to give summary judgment in a case. That section of the FCCA Act has its equivalent in s.31A of the Federal Court of Australia Act 1976 (Cth) (“the FC Act”) and the leading authority on the application of s.31A of the FC Act is Spencer v The Commonwealth of Australia (2010) CLR 118.
There is a difference between a summary judgment application and an application to strike out a form of pleadings.[12]
[12] see Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740 at [25].
Having considered the submissions of the parties against the approach in the authorities referred to above, it would be wrong to exercise discretion to summarily enter judgment in favour of the first respondent. Any application for summary judgment pursuant to Rules 13.07 or 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”) or under s.17A of the FCCA Act is refused. The facts as presently known, whatever be the deficiency as to the manner in which they have been articulated are not such that on any view could be formed that the first respondent does not have a case to answer.
However, for the following reasons, the statement of claim should be struck out. The case as it is presently formulated cannot proceed. The operation of the FCCA Act and the Rules means that inter alia, Rule 16.02 and 16.21 of the Federal Court Rules 2011 (Cth) (“the FC Rules”) applies to the orders sought the by the first respondent in the alternative for the statement of claim to be struck out.
Leaving to one side the absence of the “middlemen” companies as respondents, in this case the statement of claim is deficient in so far as it includes claims that are statue barred and should have included, in relation to each of the relevant claims, a pleading of the relevant subsections of s.550(2) of the FW Act that was alleged to have been contravened by the respondents in this case.
In order for the applicant to succeed on an accessorial liability claim something more than a pleading that somebody was involved in the contraventions is needed. Given the serious nature of the allegations, more is required of the pleading than just a reference to s.550(2) of the FW Act.[13]
[13] see approach in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [229] and Whitby v ZG Operations Australia Pty Ltd (No. 2) [2019] FCA 201 at [28]-[32].
The problems with the pleadings were not all one way. The first respondent’s defence filed on 15 January 2020 contained a number of typographical errors at paragraph [5] where subparagraphs (i) and (j) are repeated in the pleading. This mistake appears again at paragraphs [6], [7] and [9] of the defence.
Given the matters canvassed at paragraphs [29] to [32] and [44] to [49] above and for the reasons set out above, I have concluded that many essential paragraphs of the statement of claim are flawed. They are sufficiently important to the pleading that the appropriate order to be made is that the statement of claim should be struck out. However, the making of such an order should not preclude the applicant from filing a further statement of claim.
As the authorities demonstrate, where a pleading is defective and there is perhaps some prospect that the defective pleading might be replaced by one that is adequate, then leave to re-plead ought to be given.
Indeed, as the first respondent averted to in submissions the applicant’s current claim needs to be re-pleaded. [14]
[14] see paragraph [30] of the first respondent’s submissions filed 1 May 2020.
Given this, I will address the matter by making directions for amended pleadings.
Application for discovery
There was also a dispute between the parties over discovery. The second application in a case filed 26 April 2020 by the first respondent sought an order for discovery in the following terms:
“1.Pursuant to section 45(1) and division 14.2 of the rules, more specially rule 14.02, the applicant disclose:
(a)generally; or alternatively;
(b)in relation to particular classes of documents; or alternatively;
(c)in relation to particular issues;
By 13 May 2020. Documents, the specific particulars of which, referred to in the affidavit of Stephen Peter Byrne sworn 24 April 2020 in support of this application.
2.The proceedings be dismissed.
3.Costs.”
However, as was apparent from the submissions filed 1 May 2020, at paragraph 35, the first respondent was seeking discovery of documents coming within nine different categories, as referred to in the affidavit of its solicitor Mr Byrne filed 24 April 2020. The raison d’etre for this was set out in the first respondent’s submissions as follows:
“35.The documents sought by Transclean are set out in Stephen Byrne’s 24 April, 2020 affidavit.
…
(a)Transclean submits the Applicant saying one thing to the ATO and another to the Court. He clearly has other entities. The Court and the Respondents are entitled to know;
(b)the Applicant should be claiming payment for specified work, not simply work under an award. The reason he does not specify it is that he fears that evidentiary triangulation will reveal the falsity of the claim.
37.The Application is made because despite His Honour’s suggestions of co-operation following Transclean’s unsuccessful request for the documents in February they have not been forthcoming.
Principles
38.Transclean seeks the documents under Rule 14.2 which requires that an order be appropriate in the interests of the administration of justice. This was considered by Lucev FM in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 (30 April 2007).
39.The Court referred to the definition of interests of the administration of justice" in Genovese v BGC Construction Pty Ltd [2006] FMCA 507 at [24] – [25]. In Genovese the Court said:
"In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, ("Schultz") the High Court considered the nature of the "interests of justice": Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice "are even-handed"; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to "do equal justice": CLR at p.492, HCA at par [258]. "
and further said:
"In assessing the "interests of the administration of justice" similar considerations to those in Schultz apply, with the qualification related to "administration of justice". Administration means "management": Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM] Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court. "
40.The court then summarized the essential matters to be considered:
(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is "of benefit" in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.
41.Transclean submits relevance is already established. Otherwise, it submits discovery is appropriate with regard to the items by their number in the list set- out in Mr Byrne’s affidavit:
(a)Re 1: notes diaries and records – these records must already have been relied on to create the tables in the claim – given the volume and the principle significance of corroboration, inspection by Transclean would be sufficient;
(b)Re 2: banks statements of the ABNs – there directly go to the nature of his status. Transclean submits he was likely receiving payments for multiple workers. Such statements can be speedily copied digitally from a digital source (online banking) and therefore cheaply;
(c)Re 3: all records of corporate entities may be too broad -but documents showing the entities associated with the provision of services on the Victorian rail network are highly relevant;
(d)Re 4: insurance documents would indicate an independent contractor status;
(e)Re 6: correspondences with the Applicant’s staff would establish Transcleans allegations in that regard;
(f)Re 7: proofs of debt would indicate inconsistent claims;
(g)Re 9 & 10: abn registration details will indicate how the Applicant was characterizing those businesses, similarly GST registration details;
(h)Re 11: The partnership is inconsistent with the Applicant’s alleged employee status
(i)Re 12: the tax returns will show the true nature of the Applicant’s commercial activities associated with the railway work, cleaning or otherwise.
42.Transclean submits discovery would narrow the issues and thus be a benefit to the litigation. The issues will be narrowed because the Applicant will be forced to disclose a credible basis for the claim and thereby enable Transclean to take it seriously.
43.An alternative but overlapping consideration is the administration of justice in flushing out whether this claim is bona fide. In addition, the claim the applicant makes is likely to approach $450,000. Any anticipated burden of discovery on the Applicant should be considered relatively.”
The applicant in submissions filed 7 May 2020 did not appear to resist an order for discovery, as such. Indeed, as set out in the affidavit filed on 7 May 2020, by his solicitor Mr Rangi, he also sought an order for discovery in the following terms:
“…that the First Respondent disclose the following documents/information between 1 May 2011 to 30 November 2017:
(a)All documents supporting the invoices raised by the six entities to the First Respondent in relation to the applicant;
(b)All agreements/contracts/deeds between the six entities and the First Respondent in relation to cleaning Services provided to Metro Rail.”
The applicant’s submissions filed 7 May 2020 were notable, as save for asserting that there was public interest in making the order for discovery and that he sought and accepted that he would provide “tax returns for the years for which he seeks compensation”, he otherwise objected in the most general terms to the categories and class of documents sought by the first respondent as “unnecessarily broad and overly invasive”.[15]
[15] see paragraphs [32] to [34] of the applicant’s submissions filed on 7 May 2020.
Approach to discovery
Section 45 of the FCCA Act provides that:
“(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.”
Rule 14.02 of the Rules also makes provision for matters relating to discovery in this Court.
What is clear from the FCCA Act, the Rules and the case law relevant to these provisions, is that discovery is rare and the threshold is high. Importantly, there is a presumption that the “fair and expeditious conduct of the proceeding” does not require discovery (see Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54] and Vanden Driesden v Edith Cowan University (2012) 226 IR 452).
The “fair and expeditious conduct of the proceedings” (as referred to in s.45(2)(a)) is determined by reference to the objectives that govern this Court. These are set out in s.3 of the FCCA Act and Rule 1.03 of the Rules and can be summarised as follows:
a)the Court should act as informally as possible in the exercise of judicial power;
b)proceedings should not be protracted;
c)the resolution of the proceedings should be achieved justly, efficiently and economically;
d)streamlined procedures should be used; and
e)the Court should seek to avoid undue delay, expense and technicality.
In relation to s.45(2)(b) of the FCCA Act, in Abrahams v Qantas Airways Limited (No.2) (2007) 210 FLR 314 at [25] a non-exhaustive list of matters that may be considered “relevant” for the purposes of s.45(2)(b) were identified as follows:
“(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is “of benefit” to the litigation; and
(h)the effect of discovery on litigants; especially vulnerable litigants.”
This list is not exhaustive and the Court must consider the particular circumstances of the case before it.
Resolution of application for discovery
The first respondent’s submissions filed 1 May 2020 addressed the reasons for the order sought and the “Principles” associated with making such an order and then addressed seriatim the “essential matters” that are required to be considered. Were this the only issue between the parties, it would be open to the Court to make the orders sought by the first respondent.
Indeed, given the position taken by the applicant in submissions it would appear that the parties agreed discovery should take place however, they disagreed on why it has not already (and/or adequately) occurred and as well as on the scope of same.
However, nowhere in the submissions did the parties particularise which of the provisions in Rule 14.02(2) of the Rules they relied on for the orders sought.
In Australian Building & Construction Commissioner v CFMEU & Ors (No.5)[2018] FCCA 1100 it was said at paragraph [9]:
“9.It will be seen that r.14.02(2) of the FCC Rules provides for the making of three types of disclosure orders: an order for disclosure “generally”; an order for disclosure “in relation to particular classes of documents”; and an order for disclosure “in relation to particular issues”. Thus, when read with r.14.02(2) of the FCC Rules, the expression “allow . . . discovery” in s.45(1) of the FCC Act means the making of one of the three orders for disclosure provided for by r.14.02(2) of the FCC Rules. Given that the three disclosure orders provided for by r.14.02(2) are alternatives to each other, an application for a declaration under s.45(1) of the FCC Act must be made by reference to one of the three types of disclosure orders identified in r.14.02(2) of the FCC Rules. That has the practical consequence that a party who applies for a declaration under s.45(1) of the FCC Act must identify which of the three types of disclosure order provided for by r.14.02(2) of the FCC Rules the party will ask the Court to make if the Court were to make a declaration under s.45(1) of the FCC Act and, where disclosure is not sought “generally”, the classes of documents or the issues in relation to which the party would seek a disclosure order.”
Given the resolution of the first application in a case it would be premature to descend into a detailed order in relation to discovery (in the absence of a further amended statement of claim and amended defence).
In any event, and for the reasons set out above, in advance of the amended statement of claim being filed, no declaration for discovery or order should be made for the production of documents.
Conclusion
Finally, given the conclusions arrived at in relation to each of the first and second applications in a case, and the absence of submissions sufficient to invoke the exceptions provisions of s.570(2)(a) or (b) of the FW Act there will be no order as to costs.
For the reasons set out above, there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 28 May 2020
ANNEXURE A
ANNEXURE B
ANNEXURE C
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