FEDERAL COURT OF AUSTRALIA
MTCT Services Pty Ltd v Australian Workers’ Union [2018] FCA 1648
File number(s): VID 786 of 2017 Judge(s): O'CALLAGHAN J Date of judgment: 31 October 2018 Catchwords: PRACTICE AND PROCEDURE – application to amend cross-claim – allowed in part – discovery dispute Legislation: Fair Work Act 2009 (Cth), ss 12, 50, 186, 188, 343, 550 Cases cited: Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Potter v Fair Work Ombudsman [2014] FCA 187
Yorke v Lucas (1984) 158 CLR 661
Fowler, HW, A Dictionary of Modern English Usage (Oxford University Press, 2nd ed, 1983)
Date of hearing: 25 October 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: Mr M Follett and Mr A Pollock Solicitor for the Applicant: Kelly Hazell Quill Lawyers Counsel for the Respondents: Mr H Borenstein QC and Mr M Harding Solicitor for the Respondents: Slater & Gordon ORDERS
VID 786 of 2017 BETWEEN: MTCT SERVICES PTY LTD (ACN 070 140 251)
Applicant
AND: AUSTRALIAN WORKERS' UNION
First Respondent
AUSTRALIAN MANUFACTURING WORKERS' UNION
Second Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (and others named in the Schedule)
Third Respondent
AND BETWEEN: AUSTRALIAN WORKERS' UNION (and others named in the Schedule)
First Cross-Claimant
AND: MTCT SERVICES PTY LTD (ACN 070 140 251)
Cross-Defendant
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
31 OCTOBER 2018
THE COURT ORDERS THAT:
1.The respondents/cross-claimants have leave to file an amended statement of cross-claim substantially in the form of exhibit GB-2 to the affidavit of Mr Geoffrey Borenstein affirmed on 21 September 2018 filed herein, not including paragraphs [61](e), (g) and [62], which proposed amendments are refused.
2.The respondents/cross-claimants have leave to re-plead paragraphs [61](e), (g) and [62].
3.The applicant/respondent provide discovery of categories 38 and 44 described in Annexure A to the respondents’/cross-claimants’ interlocutory application dated 5 October 2018, but that the application otherwise be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
Introduction
This is an application by the first, second and third respondents (the unions) for leave to amend their statement of cross-claim dated 30 November 2017 in the form of a proposed amended statement of cross-claim (the proposed amended claim), which is exhibit GB-2 to the affidavit of Mr Geoffrey Borenstein affirmed on 21 September 2018.
The applicant/cross-respondent (MTCT) opposes the granting of the leave sought to the extent that the proposed amended claim makes allegations of accessorial liability against the putative second respondent, Mr Elliott.
Those proposed allegations are that Mr Elliott is liable as an accessory for contraventions alleged against MTCT of ss…
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- Case
- [2018] FCA 1648
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the respondents could amend their cross-claim to adequately plead the necessary facts to establish Mr. Elliott's knowledge and involvement in the alleged contraventions. The court had to determine whether the proposed amendments to the cross-claim sufficiently alleged that Mr. Elliott had actual knowledge of the circumstances that made the conduct coercive, and if these amendments complied with the legal principles governing accessorial liability. Furthermore, the court had to decide on the discovery application, specifically whether certain categories of documents should be disclosed.
The court allowed the respondents to amend their cross-claim in part, permitting the inclusion of the proposed amendments except for paragraphs [61](e), (g), and [62], which were refused. The court emphasised the need for the respondents to establish that Mr. Elliott had actual knowledge of the essential facts that made the conduct coercive. The court ruled that the respondents could re-plead the refused paragraphs. Regarding the discovery application, the court ordered the applicant to provide specific categories of documents but refused the application otherwise. The court's decision was based on the necessity for the respondents to adequately plead the required facts concerning Mr. Elliott's knowledge and involvement in the contraventions, in line with the principles of accessorial liability.
The final orders of the court allowed the respondents to file an amended statement of cross-claim with specified exclusions, permitted re-pleading of certain paragraphs, and required the applicant to provide particular categories of documents while refusing the broader discovery application.
Orders
Orders of the court
1. The respondents/cross-claimants have leave to file an amended statement of cross-claim substantially in the form of exhibit GB-2 to the affidavit of Mr Geoffrey Borenstein affirmed on 21 September 2018 filed herein, not including paragraphs [61](e), (g) and [62], which proposed amendments are refused.
2. The respondents/cross-claimants have leave to re-plead paragraphs [61](e), (g) and [62].
3. The applicant/respondent provide discovery of categories 38 and 44 described in Annexure A to the respondents’/cross-claimants’ interlocutory application dated 5 October 2018, but that the application otherwise be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The parties did not dispute that if a pleading asserts that an individual, here Mr Elliott, aided, abetted, or was knowingly concerned in the principal’s (MTCT’s) contraventions, the pleading must plead by way of material facts that the individual was sufficiently aware of all of the relevant facts going to the contravention by the principal. As White J said in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]-[179] (in a passage recently endorsed by a Full Court in Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [11]):[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.Consideration In this case, as to the allegation that Mr Elliott aided or abetted or was knowingly concerned in MTCT’s alleged breach of s 343 of the Fair Work Act, the unions must establish, and therefore must plead, that: (a) the March Threat and the May Threat were made with intent to negate the unions’ choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable; and (b) Mr Elliott had actual knowledge of those circumstances that made their conduct coercive: cf. Seven Network (Operations) Ltd v Communications, Electrical Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 at [43].