Olson v Keefe (No 2)

Case [2017] FCA 1168

FEDERAL COURT OF AUSTRALIA

Olson v Keefe (No 2) [2017] FCA 1168

File number: NSD 1498 of 2016
Judge: BROMWICH J
Date of judgment: 29 September 2017
Catchwords:

PRACTICE AND PROCEDURE – application for summary judgment or, in the alternative, strike out – where claims arise out of disputed employment relationship – whether claim of misleading and deceptive conduct adequately pleaded – whether reasonable prospects of establishing the existence of a fiduciary duty owed to employee by directors or senior executives of the employer company or related company – whether reasonable prospects of establishing employment relationship with overseas parent company – whether reasonable prospects of proving that the second respondent was knowingly involved in contravention of the victimisation prohibitions under the Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE – application for stay of part of proceedings on forum non conveniens grounds – whether this Court is a clearly inappropriate forum

Legislation:

Corporations Act 2001 (Cth), s 1317AC

Federal Court of Australia Act 1976 (Cth), s 31A

Federal Court of Australia Rules 2011 (Cth), rr 16.21, 16.42

Crimes Act 1900 (NSW), s 316

Cases cited:

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256

Brunninghausen v Glavanics [1999] NSWCA 199; 46 NSWLR 538

Chan v Zacharia (1984) 154 CLR 178

Crawley v Short [2009] NSWCA 410; 262 ALR 654

Fernandez v Glev Pty Ltd [2000] FCA 1859

Re Goldcorp Exchange Ltd [1995] 1 AC 74; [1994] 2 All ER 806

Giorgianni v The Queen (1985) 156 CLR 473

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

John Alexander’s ClubsPty Limited v White City Tennis Club Limited [2010] HCA 19; 241 CLR 1

Morris v Hanley [2004] NSWCA 41

Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141

Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31; 207 CLR 165

Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118

Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; 85 NSWLR 196

Yorke v Lucas (1985) 158 CLR 661

Finn P, Fiduciary Obligations 40th Anniversary Republication with Additional Essays (Federation Press, 2016)

Date of hearing: 14 June 2017
Registry: New South Wales
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 67
Counsel for the Applicant: Mr G Hatcher SC with Mr D Mackay
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondents: Mr Y Shariff
Solicitor for the Respondents: King & Wood Mallesons

ORDERS

NSD 1498 of 2016
BETWEEN:

KEVIN OLSON

Applicant
AND:

MICHAEL THOMAS KEEFE

First Respondent

CORY LIPOFF

Second Respondent

HILCO MERCHANT RESOURCES LLC

Third Respondent

HILCO MERCHANT AUSTRALIA PTY LTD ACN 150 215 875
Fourth Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

29 SEPTEMBER 2017

THE COURT ORDERS THAT:

1.Within 14 days, or such other period as may later be ordered, the parties furnish:

(a)agreed or competing draft orders to give…

Continue reading Olson v Keefe (No 2)

Sign in free to access the full text

Details
AGLC
Olson v Keefe (No 2) [2017] FCA 1168
Case
[2017] FCA 1168
Decision Date

CaseChat Overview and Summary

The case of Olson v Keefe (No 2) involved the applicant, Olson, who sought summary judgment or, alternatively, a strike out of certain claims against the respondents, Keefe and others. The claims arose from a disputed employment relationship, with allegations of misleading and deceptive conduct, a fiduciary duty, an employment relationship with an overseas parent company, and contravention of the victimisation prohibitions under the Corporations Act 2001 (Cth). The court had to determine whether the claims were adequately pleaded and if there were reasonable prospects of the applicant establishing the existence of the alleged duties and relationships.

The court examined the sufficiency of the pleadings, particularly focusing on whether the claim of misleading and deceptive conduct was adequately pleaded, whether there were reasonable prospects of establishing a fiduciary duty, and if there were reasonable prospects of proving an employment relationship with the overseas parent company. Additionally, the court considered whether there were reasonable prospects of proving that the second respondent was knowingly involved in contravention of the victimisation prohibitions under the Corporations Act 2001 (Cth). The court also addressed the application for a stay of part of the proceedings on forum non conveniens grounds, assessing whether the Federal Court was a clearly inappropriate forum.

The court found that while some aspects of the interlocutory application could not succeed, it was a minor part of the overall application and did not warrant an impact on the costs order. The interlocutory application largely succeeded, leading to orders that the applicant pay the respondents' costs. The court directed the parties to furnish agreed or competing draft orders within 14 days, or as otherwise ordered, to give effect to the reasons and draft procedural orders for the future conduct of the substantive proceedings, including a timetable for the provision of a draft further amended statement of claim and a process for the respondents to indicate consent or particular points of opposition.

The court's final orders mandated that within 14 days, or as otherwise ordered, the parties furnish agreed or competing draft orders reflecting the court's reasons, as well as draft procedural orders for the future conduct of the substantive proceedings. This included a timetable for the applicant to provide a draft further amended statement of claim and a process for the respondents to indicate either consent or particular points of opposition. Entry of orders was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Within 14 days, or such other period as may later be ordered, the parties furnish:

(a) agreed or competing draft orders to give effect to these reasons; and

(b) agreed or competing draft procedural orders for the future conduct of the substantive proceedings, including:

(i) a timetable and process for a draft further amended statement of claim to be provided by the applicant; and

(ii) provision for the respondents to indicate either consent or particular points of opposition to the draft further amended statement of claim.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows from the above that this aspect of the respondents’ interlocutory application therefore cannot succeed. However, it was a sufficiently small part of the respondents’ overall application, involving little additional oral or written argument, so as not to warrant any impact on the appropriate costs order.Conclusion The interlocutory application succeeds in the greater part. Orders will be made to that effect, including that the applicant pay the respondents’ costs. The parties are directed, within 14 days, or such other period as may later be ordered, to furnish agreed or competing draft orders to give effect to these reasons, together with agreed or competing draft procedural orders for the future conduct of the substantive proceedings, including a timetable and process for the draft further ASOC to be provided and provision for the respondents to indicate either consent or particular points of opposition. The aim should be to avoid, or at least limit, the need for any further adjudication on the pleadings.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.