Petris v Timelio Pty Ltd
[2024] VSC 293
•7 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST – MATTHEWS J
S ECI 2023 02174
BETWEEN:
| ANDREW PETRIS | First Plaintiff/ First Defendant by Counterclaim |
| CHARLOTTE PETRIS | Second Plaintiff/ Second Defendant by Counterclaim |
| v | |
| TIMELIO PTY LTD (ACN 169 389 771) | Defendant/ Plaintiff by Counterclaim |
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JUDGE: | Matthews J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2024 |
DATE OF RULING: | 7 June 2024 |
CASE MAY BE CITED AS: | Petris v Timelio Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 293 |
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PRACTICE AND PROCEDURE — Application for joinder — Whether individual directors of defendant company should be joined to proceeding — Proposed cause of action is involvement in contraventions of civil remedy provisions under the Fair Work Act 2009 (Cth) — Whether this court has jurisdiction — Judiciary Act 1903 (Cth), s 39(2) — Fair Work Act 2009 (Cth), ss 539, 545, 546, 550 — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b) — Tucker v State of Victoria [2021] VSCA 120 — Tucker v State of Victoria [2018] VSC 389 — Re Optimisation Australia Pty Limited (2018) 362 ALR 374.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs / Defendants by Counterclaim | Mr L Magowan of Counsel | FSC Law |
| For the Defendant/Plaintiff by Counterclaim | Mr D Briggs of Counsel | Partners Legal Solutions |
Contents
Overview
Relevant law and legal principles
Rules on joinder of parties and pleading amendments
The FWA
The Court’s jurisdiction
Questions for the Court
Submissions
Plaintiffs’ submissions
Timelio’s submissions
Consideration
Conclusion
HER HONOUR:
Overview
This ruling concerns an application by Andrew and Charlotte Petris, the plaintiffs and defendants by counterclaim (herein, the Plaintiffs), to join Wayne Phillips and Symon Brewis‑Weston (the Proposed Defendants) to the proceeding and to amend their pleadings accordingly (the Joinder Application).
The Plaintiffs are a married couple and the founders of the defendant company, Timelio Pty Ltd (Timelio), which is an invoice financing business. The Plaintiffs are former directors, shareholders (through their related entity, Garden Street Ventures Pty Ltd (Garden Street Ventures)) and employees of Timelio. On 14 July 2022, the Plaintiffs, Timelio and Garden Street Ventures entered into a settlement deed, by which the Plaintiffs’ employment and directorships with Timelio (and other related companies) was ended (the Settlement Deed).[1]
[1]The Settlement Deed was also entered into by Garden Street Ventures Pty Ltd as trustee of the Sophia Rose Trust, a company of which the Plaintiffs are directors.
On 23 May 2023, the Plaintiffs commenced this proceeding against Timelio, alleging that they are owed employment entitlements (including annual leave, long service leave, salary and superannuation), as required by the Settlement Deed, and in connection with their implied contracts of employment and entitlements under the Fair Work Act 2009 (Cth) (FWA). The Plaintiffs also make a claim in respect of convertible notes issued by Timelio to them which Timelio had failed to redeem. By counterclaim, Timelio seeks damages for breaches of contract, misrepresentation and breach of their duties under the Corporations Act 2001 (Cth). Timelio alleges that the Plaintiffs had been overpaid their salary and employment entitlements, as their salaries had been increased without proper approvals and they had been improperly paid other amounts, in breach of fiduciary duties they owed to Timelio. Timelio also alleges that the Plaintiffs’ conduct in negotiating the Settlement Deed was misleading and deceptive as they did not bring to Timelio’s attention the overpayments of salary and other entitlements.
Two aspects of the Plaintiffs’ claims were the subject of a summary judgment of this Court late last year. I granted the Plaintiffs summary judgment with respect to long service leave entitlements in the amount of $22,312 each, being an entitlement admitted in Timelio’s defence, without determining the balance of the Plaintiffs’ claims, including their claim to long service leave entitlements referrable to an increased base salary (which was not admitted by Timelio). I also gave summary judgment for the Plaintiffs on their convertible note claim.[2] Leave to appeal my summary judgment decision was refused by the Court of Appeal in February 2024.[3]
[2]Petris v Timelio Pty Ltd (Supreme Court of Victoria, Matthews J, 25 October 2023)
[3]Timelio Pty Ltd v Petris [2024] VSCA 17.
The Proposed Defendants are the current directors of Timelio. The claims which the Plaintiffs propose to bring against the Proposed Defendants in the proposed Further Amended Statement of Claim (Proposed FASOC) concern alleged violations or contraventions of the FWA, in which it is alleged that the Proposed Defendants were involved.
In the current pleading, being the Amended Statement of Claim dated 14 November 2023 (ASOC), claims of breach of the FWA are raised as against Timelio. For example, paragraph 39 of the current pleading, which is retained in the Proposed FASOC, is as follows:
In breach of sections 90(2), 44(1) and 323(1) of the Fair Work Act 2009 (Cth), the Company has failed, refused or neglected to pay each of Andrew and Charlotte their accrued annual leave entitlements.
No application has been brought by Timelio to strike out claims as against the Company concerning breach of the FWA in the current pleading, however, the existence of a possible jurisdictional issue, insofar as it relates to FWA claims against Timelio, is raised in Timelio’s defence.[4]
[4]See paragraphs 37(c), 38(c) and 39 of the amended defence to amended statement of claim and further amended counterclaim filed on 6 May 2024.
The Proposed FASOC provides at paragraph 49 that:
The failure (and continued failure) by the Company to pay the Statutory Entitlements (as alleged above) in accordance with the:
(i)the Fair Work Act (Cth);
(ii) the “Superannuation Guarantee” now forming part of the NES under the Fair Work Act;
(iii) the Long Service Leave Act 2018 (Vic),
is a breach of the relevant Acts (collectively, but excluding Long Service Leave, “the Company’s Contravention”).
The Proposed FASOC goes on to allege that, in the premises, Timelio is indebted to the Plaintiffs for certain sums and that the Proposed Defendants have, by their conduct, been accessories to the Company‘s Contraventions under the FWA, and are thus involved persons within the meaning of s 550. The Proposed FASOC provides that, in the circumstances, the Proposed Defendants ought to be personally liable for the statutory entitlements pursuant to s 550, and are therefore indebted to the Plaintiffs for those amounts.
The relief sought in the Proposed FASOC as against Timelio includes amounts for unpaid employment entitlements, declarations of breach of the FWA, Long Service Leave Act 2018 (Vic), and the Settlement Deed, as well as a declaration of a failure to comply with the Superannuation Guarantee. The Plaintiffs seek, as against the Proposed Defendants, relief including a declaration that they have breached s 550 of the FWA and amounts for unpaid entitlements (other than long service leave amounts).
As to the reason that the Joinder Application is made at this time, an affidavit of Bishoy Hanna (solicitor for the Plaintiffs) affirmed on 29 February 2024 states that the Plaintiffs are concerned about the enforceability of any judgment they may obtain in the proceeding, given that Timelio sold some or all of its assets in around November 2023.[5]
[5]Affidavit of Bishoy Hanna affirmed on 29 February 2024, [9]–[14].
The Joinder Application is opposed by Timelio, primarily on the grounds that the FWA claims against the Proposed Defendants fall outside the jurisdiction of this Court.
Relevant law and legal principles
Rules on joinder of parties and pleading amendments
Rule 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) provides:
At any stage of a proceeding the Court may order that —
…
(b)any of the following persons be added as a party —
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding
…
Rule 36.01(1)(a) of the Rules provides that the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding for the purpose of determining the real question in controversy between the parties to any proceeding.
The FWA
A number of sections of the FWA are relevant to the Joinder Application. Key sections are set out below:
44 Contravening the National Employment Standards
An employer must not contravene a provision of the National Employment Standards.
Note: This section is a civil remedy provision (see Part 4‑1).
…
539 Applications for orders in relation to contraventions of civil remedy provisions
(1)A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.
(2)For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
….
Standing, jurisdiction and maximum penalties
Item
Column 1
Civil remedy provisionColumn 2
PersonsColumn 3
CourtsColumn 4
Maximum penaltyPart 2-1—Core provisions
1
44
(a) an employee;
(b) an employee organisation;
(c) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) an eligible State or Territory court
for a serious contravention —600 penalty units; or otherwise—60 penalty units
…
545 Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1)The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person;
(d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.
Eligible State or Territory courts
(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
…
When orders may be made
(4) A court may make an order under this section:
(a) on its own initiative, during proceedings before the court; or
(b) on application.
Time limit for orders in relation to underpayments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.
546 Pecuniary penalty orders
(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Note 1: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).
Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).
Determining amount of pecuniary penalty
(2) Subject to this section, the pecuniary penalty must not be more than:
(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
(2AA) Despite paragraph (2)(b), if:
(a)the civil remedy provision is a selected civil remedy provision; and
(b) the person is a body corporate; and
(c) when the application for the order is made, the person is not a small business employer;
the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
Recovery of penalty
(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.
No limitation on orders
(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.
…
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
An ‘eligible State or Territory court’ is defined in the Dictionary at s 12 of the FWA as meaning one of the following courts:
(a) a District, County or Local Court;
(b) a magistrates court;
(c) the Industrial Relations Court of South Australia;
(ca) the Industrial Court of New South Wales;
(d) any other State or Territory court that is prescribed by the regulations.
This Court is not a prescribed court under the Fair Work Regulations 2009 (Cth).[6] Accordingly, the Victorian Supreme Court is not an ‘eligible State or Territory court’ for the purposes of the abovementioned FWA provisions.[7] This much is common ground between the parties.
[6]See reg 1.05.
[7]See, for example, the decision of Brereton J in Re Optimisation Australia Pty Limited (2018) 362 ALR 374 (Re Optimisation), [434]–[435].
The Court’s jurisdiction
The jurisdiction of state courts including this Court in respect of federal matters arises from section 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act), which is in these terms:
39 Federal jurisdiction of State Courts in other matters
…
(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it …
The grant of federal jurisdiction ‘will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s 39’ of the Judiciary Act.[8]
[8]R v Ward (1978) 140 CLR 584, 589 (Per Gibbs ACJ, Stephen, Mason, Jacobs and Aickin JJ).
Questions for the Court
It falls to me to determine whether the Court’s jurisdiction extends to make a declaration and/or to order a debt in relation to involvement in a contravention of a civil remedy provision of the FWA by the Proposed Defendants. A key question in this regard is whether the FWA by implication evinces an intention to limit the jurisdiction of this Court, pursuant to s 39(2) of the Judiciary Act.
Should I find that the Court does have jurisdiction in respect of the matters alleged in the Proposed FASOC as against the Proposed Defendants, then I must consider whether to exercise my discretion to order that the Proposed Defendants be joined to the proceeding and the Plaintiffs have leave to amend their pleadings.
Submissions
Plaintiffs’ submissions
The Plaintiffs say that the proposed amended claims, insofar as they relate to breaches of the FWA, are claims for declarations and for a debt, no reliance is placed on s 539(2) of the FWA and no civil penalty or order for compensation under the FWA is sought. The Plaintiffs submit that this Court does have jurisdiction to grant declaratory relief, arising under the FWA, by virtue of s 39(2) of the Judiciary Act.
The Plaintiffs say that s 539(2) of the FWA does not evince an intention to exclude or otherwise limit the jurisdiction conferred by s 39 of the Judiciary Act, and if the Commonwealth Parliament had so intended, it would have said so. Further, they say that there is no implicit intention to exclude or limit this Court’s jurisdiction. In this regard, counsel for the Plaintiffs noted that the language of s 539(2) is that persons ‘may apply to the courts’ for particular forms of relief, and that there is no provision of the FWA which expressly abrogates s 39 of the Judiciary Act, or which says that only the courts listed in s 539(2) have jurisdiction.
They say that the FWA simply grants jurisdiction to nominated statutory courts (which require such conferral of jurisdiction) in relation to specified civil remedy provisions and civil penalties. They accept that this Court does not have jurisdiction with respect to civil remedy provisions and civil penalties and say that neither are sought in this proceeding. They say that they rely instead on this Court’s ancillary jurisdiction. These submissions were somewhat confused. The Plaintiffs submitted orally that no references are made to civil remedy provisions in their Proposed FASOC, but moments later acknowledged that ‘some of the civil penalty provisions are mentioned and we rely upon them’.
With reference to paragraph 39 of the current pleading, s 90(2) of the FWA provides that employers must pay out untaken annual leave when an employee ceases their employment, and this is not a civil remedy provision. As set out above, s 44(1) is a civil remedy provision which provides that an employer must not contravene the National Employment Standards (NES). The NES relevantly includes the superannuation guarantee. Sub‑section 323(1) is also a civil remedy provision which requires that employees be paid in full, at least monthly, and by one or more of certain specified methods.
It is submitted that by ss 539(2), 545 and 546, the FWA prescribes to the courts named in those sections certain powers, some of which are over and above the powers that those courts would ordinarily have, such as the power to impose a pecuniary penalty for contravention of a civil remedy provision. The Plaintiffs submit that this Court has jurisdiction because it is not being asked to make one of those orders for which a court has been specified.
The Plaintiffs point to the decision of the Court of Appeal in Tucker v Victoria,[9] to support their position that it is ‘plain’ that this Court has ample jurisdiction, and say that the Court as constituted is bound by the decision in Tucker (Appeal).[10]
[9][2021] VSCA 120 (Tucker (Appeal)).
[10]The Plaintiffs rely in particular on paragraphs [332] to [347] of that decision.
The Plaintiffs submit that in Tucker (Appeal), the Court of Appeal equivocated in relation to whether there is jurisdiction to order compensation but not in relation to jurisdiction to make a declaration. Here, the Plaintiffs seek a declaration that there has been a breach of the FWA and that the directors are liable with respect to the breach, and an order for a debt.
The Court of Appeal stated in Tucker (Appeal) (at [335]):
It is well established that, if a claimed right or duty owes its existence to a federal statute, then the controversy as to whether the right was infringed or the duty was performed is a matter arising under that federal statute…
This gives rise to a federal question in a way that is not incidental.[11] The pleading considered in Tucker (Appeal) concerned rights and obligations the alleged source of which was the FWA (the rights and obligations arose under the Victorian Public Service Enterprise Agreement, or VPSEA, which was approved by the Fair Work Commission (FWC) pursuant to s 185 of the FWA). Because the applicant in Tucker (Appeal) relied on that section of the FWA as the legal foundation of the obligations of the respondents under the VPSEA, the matter was one arising under the FWA. This was the case even where the applicant made no specific claim for relief provided for under the FWA (which, in respect of a breach of an enterprise agreement, would have been a claim for breach of s 50 of the FWA).[12]
[11]Tucker (Appeal), [337].
[12]Tucker (Appeal), [340]–[341].
The Plaintiffs’ counsel described Tucker (Appeal) at [346] as the battle ground of the Joinder Application. That paragraph (and the following paragraph) provides:
[346]In the present case, s 539(2) of the FWA provides for specific penalties, enforceable in particular courts, for breach of s 50. Its operation is confined to provisions such as s 50 which are defined as civil remedy provisions. In the case of those provisions, it is plain that only the specified courts have jurisdiction to impose the identified penalties. The respondents go further, and submit that the provisions identified constitute an exhaustive statement of the course to be followed in respect of contraventions of civil remedy provisions. It is said that the specific conferral of jurisdiction on identified courts in respect of that matter cannot sit with the general conferral of jurisdiction in s 39(2) of the Judiciary Act. But that question need not be decided, because in the present case the 2nd FASOC seeks no relief for contravention of s 50 or any other civil remedy provision. Indeed, s 50 is not mentioned at all. Nor does it seek any payment or order for reinstatement, as to which it might be said that the statutory scheme in s 539(2) was intended to be exhaustive. In our opinion, it is drawing far too long a bow to suggest that s 539(2), read with the related provisions, reveals an intention to exclude from the jurisdiction of the Supreme Court conferred by s 39(2) of the Judiciary Act, not only cases seeking any relief for contravention of s 50 of the FWA, but a case in which a claim is advanced seeking only declaratory relief for breach of obligations created by an enterprise agreement without reliance of any sort on s 50.
[347]Accordingly, s 539(2) of the FWA did not operate to detract from the full operation of s 39(2) of the Judiciary Act in the present case. The Court had jurisdiction in the present case because it had before it a matter arising under the FWA.
The Plaintiffs say that in the abovementioned paragraphs, the Court of Appeal ‘say yes to a declaration’ in relation to a breach of the FWA. The Court of Appeal expressly acknowledged that a statute can, by intention, exclude or limit jurisdiction conferred by s 39 of the Judiciary Act, but highlighted that it was a high bar and it is not expressly done in the FWA. It is said that if the power to order a declaration remains, then the power to order payment of a debt also remains.
They say that the language of ‘compensation’ in s 539(2) of the FWA is of a statutory nature, and it does not seek to exclude any other claim, such as a claim for a debt. During argument I pointed out that the statute in fact says, in relation to eligible State or Territory courts, that an order may be made ‘to pay an amount’ to an employee.[13] The Plaintiffs submit that this does not amount to an intention of the Commonwealth Parliament to exclude the jurisdiction of this Court pursuant to s 39(2) of the Judiciary Act.
[13]Section 545(3) of the FWA.
In submissions in reply, counsel for the Plaintiffs submitted that the ‘source of the entitlement or power’ was, in fact, pleaded. Sub‑paragraphs 23(a) and (b) of the current pleading (which is retained in the Proposed FASOC) sets out the recitals to the Settlement Deed, including references to the Plaintiffs’ employment at Timelio. Paragraph 24 states that these recitals accurately record the existence of contracts of employment between the Plaintiffs and Timelio.[14] Paragraph 25 states that the employment contracts included terms that Timelio would pay each of the Plaintiffs their salaries, accrued annual leave, accrued long service leave, and accrued superannuation pursuant to the ‘Superannuation Guarantee’. The Plaintiffs say that there is a contract of employment and, at common law, this Court has jurisdiction. The terms of the contract are implied, including pursuant to the terms of the FWA, and they are taken to be admitted by Timelio. The Plaintiffs submit that, if I were to take Timelio’s argument to its logical conclusion, it would mean that this Court has been excluded from ordering a debt for breach of implied terms of contracts of employment.
[14]Paragraph 23 is admitted by Timelio. In terms of paragraph 24, Timelio admits that both of the Plaintiffs were employed and were directors, says that it has been unable to locate a written contract of employment for either of the Plaintiffs, and otherwise does not admit that paragraph.
During the hearing, I asked counsel for the Plaintiffs to explain, in circumstances where my jurisdiction extends to declarations but not to the making of orders for the payment of statutory entitlements, what work the declaration would do. That is, even if a declaration could be ordered by this Court, how does a debt flow from that declaration? It was suggested that, if the Court has jurisdiction to declare that the FWA has been breached and that a certain, fixed sum is the amount owed (ie, the amount of compensation that would be ordered under the FWA), then the Court can go one step further and order that the amount be paid by way of a debt.
Counsel for the Plaintiffs submits that it would be anomalous to find that I do not have power to order compensation but I can make a declaration, and that this would tell against an implicit exclusion of s 39(2) of the Judiciary Act by the FWA. However, should that be the position, the Plaintiffs say that they can take the declaration made by this Court to a named court with express power to order compensation under the FWA to obtain compensation for the declared contravention.[15]
[15]Counsel suggested that, by this course, the Plaintiffs would not have a ‘Verwayen‑type estoppel’ raised against them in attempting to enforce that order, by which I understood counsel to refer to the case of Commonwealth v Verwayen (1990) 170 CLR 394. I note that it might be more appropriate to say that the Plaintiffs’ proposed course could avoid an Anshun estoppel argument, however, given my findings elsewhere in these reasons, it is not necessary to develop this point further.
The Plaintiffs submit that Timelio’s reliance on the decision of Justice Brereton in Re Optimisation (see paragraph 38 below) is misplaced. They say that I can put that decision to one side because I am bound by Tucker (Appeal) which sits inconsistently with Re Optimisation, as Brereton J did not consider s 39(2) of the Judiciary Act in the context of his statement that the FWA is exhaustive, and Tucker (Appeal) shows a declaration can be ordered by this Court.
Timelio’s submissions
Timelio submits that this Court should find, consistently with the decision of Brereton J in Re Optimisation in relation to the jurisdiction of the Supreme Court of New South Wales, that this Court does not have jurisdiction in respect of an employee’s claim for accrued annual leave, long service leave or (if relevant) superannuation contributions under the FWA.
Timelio says that the factual background of Re Optimisation is somewhat similar to this proceeding. In that case, a subset of issues before the Court, described as the ‘employment entitlement’ issues, were claims brought by the plaintiff (Brian) against the defendant company (Optimisation) for unpaid entitlements upon termination of his employment with Optimisation, including accrued unpaid annual leave.[16] Optimisation, by cross‑claim, claimed repayment of annual leave which it said was overpaid to Brian following his termination.[17] Brereton J made findings as to the amount of outstanding employment entitlements that Brian ought to have been paid, but then considered the question of whether the NSW Supreme Court ‘has jurisdiction to entertain claims, founded on the national employment standards, for annual leave and personal leave’.[18]
[16]Re Optimisation, [2].
[17]Re Optimisation, [2].
[18]Re Optimisation, [417]–[433].
In Re Optimisation, Brereton J said that:
The courts referred to in FWA constitute an exhaustive list of the forums in which an employee may choose to commence relevant proceedings against current and former employers.[19] This Court does not have jurisdiction in respect of an employee’s claim for accrued annual leave under FWA, as Ball J observed in Woodland Home Products Pty Ltd v Picalovski,[20] in relation to a claim brought by an employee for unpaid annual leave in the Industrial Court, which the employer sought to have removed into the Supreme Court and transferred to the Federal Court to be heard with other related proceedings:
7 As to the first matter, Mr Picalovski’s claim for annual leave undoubtedly arises under the Fair Work Act 2009. Even if the claim originally arose under New South Wales legislation, schedule 3 item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that, where an employee has accrued annual leave during the period before 1 January 2010, the provisions of the Fair Work Act relating to annual leave apply as if the leave had been accrued under that Act. This Court does not have jurisdiction to hear that claim but the Federal Court undoubtedly does. There may be a question whether the Federal Court would have jurisdiction to hear the claim in respect of long service leave alone, but whether or not it does, it would clearly have accrued jurisdiction to hear that claim: see, for example, Carr v Blade Repairs Australia Pty Ltd [2009] FCA 764.
8 As to the second factor, the claim under the Fair Work Act clearly arises under Commonwealth legislation and is not within the jurisdiction of this Court.[21]
[19]Citing Ervin v Smipat Pty Ltd t/as LJ Hooker Burleigh Heads [2013] QCATA 153, [29] (Wilson J).
[20][2010] NSWSC 629.
[21]Re Optimisation, [436].
Re Optimisation concerned a claim for contravention of s 44 of the FWA. Brereton J noted in that decision:
[…] Brian’s claim for unpaid annual leave and personal leave are for amounts said to be payable under FWA, which Optimisation is said to have failed to pay, thereby contravening FWA s 44. His claim is not for breach of implied terms of the employment contract, but for statutory entitlements, the right to which and the remedy in respect of which is created and provided by FWA.[22]
[22]Re Optimisation, [437].
In light of Re Optimisation, Timelio says that there is no basis for recovery of any sum said to be payable under the FWA (ie in respect of a breach of statutory entitlements) outside the FWA remedies, which this Court does not have jurisdiction to order.
Timelio refers to the decision of High Court in Byrne v Australian Airlines Ltd,[23] in which Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ held, with respect to the former Industrial Relations Act 1988 (Cth):
Having regard to the public aims of the legislation, its scope and purpose is not such as to disclose any intention to benefit or protect employees or any other class of persons by conferring on them a right of action at common law for breach of an award obligation. However, in pursuit of those aims the Act does provide for the enforcement of awards thereby giving them statutory force. The appellants' argument tended to focus upon the award itself rather than the Act. But an award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty enforceable by way of a civil action for damages, then the necessary intention that it should be so regarded must ultimately be found in the Act and not the award. The Act discloses no such intention and, indeed, cannot do so in the absence of any specification of the duties which might be imposed by an award. On the other hand, the Act can and does disclose a contrary intention in providing a means for the enforcement of awards which does not contemplate the existence of private rights enforceable by way of an action for damages.
[23](1995) 185 CLR 410 (Byrne), 425 (citations omitted).
Timelio says that the FWA, like the Industrial Relations Act 1988 (Cth), does not disclose an intention to create, provide for or contemplate, a statutory duty enforceable by way of a civil action for damages (or a debt). The FWA creates statutory rights and sets out a detailed and exhaustive set of statutory remedies, and thereby discloses a contrary intention. The FWA does not provide for or contemplate the existence of private rights enforceable by way of an action for damages, or payment of a debt. It is submitted that this was a clear omission in the Plaintiffs’ case; they do not say how a right to a debt arises from a declaration of a contravention of a civil penalty provisions.
It is submitted that Brereton J in Re Optimisation makes clear the proposition that the FWA creates the relevant rights and, insofar as a person seeks to enforce those rights, the FWA provides the remedies.[24]
[24]Re Optimisation, [435].
Timelio submits that Tucker (Appeal) does not stand as authority for the propositions propounded by the Plaintiffs. Timelio says that Tucker (Appeal) stands for the proposition that this Court does not have jurisdiction to enforce the remedies provided by the FWA, however, it appears that the Court can make a declaration in respect of a breach of contract, where the rights under the contract arise from, and owe their existence to, the FWA but where the contract creates separate common law causes of action.
Timelio’s written submissions properly acknowledge that there is doubt as to whether this Court may make declarations directly about contraventions of the FWA. As the Court may grant declaratory relief in respect of matters within its jurisdiction, the question is whether the FWA evinces an intention to exclude or otherwise limit the Court’s jurisdiction conferred by s 39 of the Judiciary Act.
Timelio says that the cases of Tucker (Appeal) and Re Optimisation do not sit inconsistently with each other. In fact, McDonald J cited Re Optimisation with approval on the question of jurisdiction in a separate decision also involving Mr Tucker and the State of Victoria.[25] Re Optimisation was therein cited for the proposition that the Victorian Supreme Court has no jurisdiction to hear and determine claims for penalties for contravention of an enterprise bargaining agreement.
[25]Tucker v State of Victoria [2018] VSC 389 (Tucker (Interlocutory Decision)), [17].
The factual background of the cases concerning Mr Tucker, involved an investigation by the State Revenue Office (SRO) into his alleged improper conduct in the context of his employment at the SRO.[26] The investigations were carried out pursuant to cl 21 of the VPSEA, which was approved by the FWC under the FWA.[27] Claims that Mr Tucker sought to pursue before McDonald J included allegations that, in its conduct of the investigations, the SRO had breached implied terms of Mr Tucker’s employment agreement, the SRO had breached terms of the VPSEA, there were breaches of the Public Administration Act 2004 (Vic) (PAA) in the failure to conduct the investigations and disciplinary processes in compliance with cl 21 of the VPSEA, and there had been contraventions of s 50 of the FWA in the failure to comply with clauses of the VPSEA.[28]
[26]Tucker (Interlocutory Decision), [1]–[2].
[27]Tucker (Interlocutory Decision), [4].
[28]Tucker (Interlocutory Decision), [6].
In the application heard by McDonald J, Mr Tucker sought to amend his claim to include the imposition of penalties in respect of the contraventions of s 50 of the FWA.
McDonald J noted in respect of the relief sought for contraventions of the FWA:[29]
[29]Tucker (Interlocutory Decision), [15]–[17].
15 Section 50 of the FWA provides that a person must not contravene a term of an enterprise agreement. Section 50 is a civil remedy provision. Section 539(2) of the FWA provides:
For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
16 Item 4 of the table in s 539(2) of the FWA provides that an application in respect of an alleged contravention of an enterprise agreement may be filed in the Federal Court, the Federal Circuit Court or an eligible State or Territory court. ‘Eligible State or Territory court’ is defined in s 12 of the FWA as including the Magistrates’ Court and/or the County Court. The Supreme Court of Victoria is not an eligible court.
17 Paragraphs 40 to 46 of the proposed FASOC plead seven separate contraventions of s 50 of the FWA. Paragraph J of the prayer for relief seeks the imposition of penalties in respect of the seven alleged contraventions. The Supreme Court of Victoria has no jurisdiction to hear and determine the plaintiff’s claim for penalties for contravention of the VPSEA.
[Footnotes omitted].
Timelio also highlights the following paragraphs of Tucker (Interlocutory Decision) regarding amendment of documents under r 36.01(1)(a) of the Rules:
18 The Court has power under r 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 to grant leave to amend a pleading for the purpose of determining the real question in controversy between the parties. The exercise of this power is subject to the overarching purpose under s 7 of the Civil Procedure Act 2010 (‘CPA’) of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.
19 The phrases ‘real question in controversy’ and ‘real issues in dispute’ must be read subject to any constraints imposed upon the Court’s jurisdiction to resolve issues in dispute between the parties. The fact that the plaintiff wishes to pursue a claim for penalties for alleged contravention of the VPSEA does not confer upon the claim the status of ‘a real issue in dispute’. This conclusion is reinforced by the fact that ‘court’ is defined in s 3 of the CPA as the Supreme Court, County Court or Magistrates’ Court. Mr Williams QC, who appeared with Ms Paszkiewicz for the plaintiff, acknowledged that the parties were in ‘heated agreement’ that if the plaintiff wishes to pursue his claims alleging contravention of s 50 ‘we’ve got to go somewhere else to do it’. An issue in dispute between the parties which is not within the Supreme Court’s jurisdiction is not a real issue in dispute.
20 As the Court has no power to grant the relief sought in respect of the alleged breaches of the VPSEA it is highly questionable whether r 36.01 is a source of power to grant the amendment sought. Assuming in the plaintiff’s favour that there is power to grant the amendment, it is not an appropriate exercise of that power to permit an amendment to plead a cause of action which the Court has no power to hear and determine.
The pleaded claims and prayers for relief sought before McDonald J differed from the pleaded claims and prayers for relief considered by the Court of Appeal in Tucker (Appeal).
Importantly, the pleading before the Court of Appeal in Tucker (Appeal) concerned a declaration in relation to the VPSEA and rights arising under that enterprise agreement, rather than a claim for penalties for contraventions of the FWA.
The Court of Appeal was hearing an appeal from decisions of an associate judge which included the refusal of Mr Tucker’s application for leave to file a proposed third further amended statement of claim, which proposed to add an allegation that, by reason of the alleged breaches of the VPSEA, the respondents had contravened s 50 of the FWA.[30]
[30]Tucker (Appeal), [5].
By the relevant ground of appeal, Mr Tucker submitted that the Supreme Court had jurisdiction to make declarations and grant interlocutory relief with respect to the claimed breaches of the VPSEA as pleaded in the second further amended statement of claim, that the associate judge erred in refusing him leave to file the proposed third further amended statement of claim, and that she erred in finding that the application to file it was an abuse of process.[31] Each of those submissions was upheld by the Court of Appeal.[32]
[31]Tucker (Appeal), [328].
[32]Tucker (Appeal), [329].
The Court of Appeal concluded that a declaration should be made that the respondents failed to conduct the investigation in accordance with the procedural fairness requirements of cl 21.11(a) of the VPSEA and s 20(3)(c) of the PAA, read together with s 8(b).[33]
[33]Tucker (Appeal), [16]. For the purposes of the decision before me, I do not need to outline the aspect of Tucker (Appeal) concerning the PAA, as the relevance of Tucker (Appeal) is in the consideration of the FWA and VPSEA.
While the VPSEA owed its existence to the FWA, the declaration sought was not one for a breach of a civil remedy provision. Timelio suggests that it is therefore distinguishable from the declaration that is sought in this proceeding. Here, there is no written contract which stipulates rights in respect of which declarations are sought as against the Proposed Defendants, in contrast to the circumstances of Tucker.
At [327], the Court of Appeal in Tucker (Appeal) said:
We have already decided in the context of grounds 1 and 3 that the applicant’s employment contract contained an express term requiring the SRO to comply with cl 21 of the VPSEA and that the respondents breached that term. We have also decided in the context of ground 3 that the respondents breached s 20(3)(c) of the PAA, read together with s 8(b). Accordingly, subject to anything to the contrary in the FWA, the Supreme Court has jurisdiction to make declarations in relation to those breaches. It follows that, unless the FWA takes away the jurisdiction of the Supreme Court that would otherwise arise under the employment contract and the PAA, the applicant need not establish an independent conferral of jurisdiction under the FWA.
Timelio submits that by that paragraph, the Court of Appeal identifies the basis of the rights asserted and ties the rights to the question of jurisdiction, ie, unless the FWA takes away from the Court’s jurisdiction otherwise arising under Mr Tucker’s employment contract and under the PAA, he need not establish an independent conferral of jurisdiction under the FWA.
In this proceeding, with respect to the relief sought against the Proposed Defendants of a declaration of a ‘contravention of s 550 of the FWA’, Timelio notes that s 550 is a deeming provision in respect of persons involved in a contravention of a civil remedy provision. Timelo says that s 550 does not create a common law right to damages or a claim in debt, and emphasises that s 550 is only concerned with civil remedy provisions. Timelio also notes that s 90(2) of the FWA is not itself a civil remedy provision, but it forms part of the NES. Section 44 is a civil remedy provision and a breach of s 90(2) by an employer would therefore be in breach of s 44. In this Joinder Application, the only nexus through which the Plaintiffs can seek a remedy against the Proposed Defendants is through their involvement in a contravention of a civil remedy provision pursuant to s 550 of the FWA. Accordingly, the Plaintiffs do rely on the civil remedy provisions. They therefore must establish a conferral of jurisdiction under the FWA in respect of the Joinder Application.
Timelio refers to Tucker (Appeal),[34] and says that this involves two steps or questions:
(a)first, whether the circumstances in that case gave rise to a federal matter which would give the Court jurisdiction under s 39(2) of the Judiciary Act;[35] and
(b)next, whether or not anything has been excised from that general conferral.
[34]At [332] and [340]–[342].
[35]Counsel for Timelio noted that the cases confirm that the concept of a matter is very broad, and whether something arises under federal law: Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187.
Timelio submits that at [341], the Court of Appeal is making an important distinction between a litigant exercising their rights under an agreement in respect of which the FWA does not provide remedies and where the agreement provides remedies (albeit those rights owe their existence to the FWA), and a litigant seeking to exercise their rights under the FWA for breach of the FWA. It is uncontroversial that a person can exercise their common law rights in respect of a contract or agreement, or a contract which incorporates terms of an enterprise agreement (the latter being the situation in Tucker). This is a cause of action that is ‘independent’ of the FWA.
Then, at [342] to [347], the Court of Appeal looks at the second question.
Timelio acknowledges that the Court of Appeal in Tucker (Appeal) does not say that the FWA remedies are exhaustive for breaches of civil remedy provisions under the FWA, however, for this point, I can follow the decision of Re Optimisation. If I find that the FWA does not create common law causes of action, then the compensation element ‘stops there’ and there is no cause of action for a debt.
As noted above, Timelio acknowledges that the question of whether this Court can grant a declaration in respect of a breach of a civil penalty provision of the FWA or a person’s involvement under s 550 of that Act is not covered by Tucker (Appeal), as it deals with a declaration in relation to a contract and terms incorporated into that contract.
In that regard, Timelio invites me to accept Brereton J's proposition in Re Optimisation that the remedies for breach of a civil penalty provision set out in the FWA are an exhaustive list of remedies available, and to find that there is in the FWA an intention to exclude the jurisdiction of this Court to grant other remedies for breaches of that Act.
Counsel for Timelio also submitted that, should I find that a declaration can be made but no debt can be ordered, the Plaintiffs’ suggested course at paragraph 36 above is not free of difficulty.
Timelio suggests that it may be unnecessary for me to determine the question of whether the specific conferral of jurisdiction on identified courts in s 539 of the FWA cannot sit with the general conferral of jurisdiction in s 39(2) of the Judiciary Act. It says this because the declaration sought by the Plaintiffs (of a contravention of s 550 of the FWA, being a deeming provision and not, itself, a civil penalty provision) is ‘nonsensical’, but that the question would need to be determined in the event that the Plaintiffs put on a competent pleading.
Consideration
The Plaintiffs seek a declaration that the Proposed Defendants have breached s 550 of the FWA. In respect of Timelio’s submission at paragraph 69, true it is that a person cannot be declared to have breached a deeming provision. Be that as it may, I intend to put that deficiency in the Plaintiffs’ case to one side and consider the substantive question before me.
Should I otherwise be minded to grant the Joinder Application I might also allow the Plaintiffs to reformulate their prayer for relief in the pleading that is ultimately filed. Should I decline to consider the matter further, it is likely that the Plaintiffs would work quickly to fix that mistake by reformulating their prayer for relief to seek a declaration that the Proposed Defendants were involved in a contravention of a s 44, within the meaning of s 550 of the FWA, and therefore the Proposed Defendants should be taken to have breached s 44. I would soon be back to where I am now: asking whether the joinder of the Proposed Defendants is possible or of utility, which requires consideration of whether the FWA evinces an intention to limit the jurisdiction of this Court in a relevant way.
This Court is not an eligible State or Territory Court for the purposes of the FWA. If it were, under the jurisdiction conferred by the FWA in respect of a contravention of a civil remedy provision, this Court could order that an employer pay an amount that the employer was required to pay under the FWA or a fair work instrument (s 545(3)) or impose a civil penalty (s 546). The Plaintiffs accept that I cannot order payment of a penalty for breach of a civil remedy provision under the FWA. They say that I can, nevertheless, declare that such provision has been breached and then go on to order, in respect of persons with accessorial liability for the breach, a debt in the same amount as the payment which might be ordered by the courts identified in the FWA.
I do not agree with the position advanced by the Plaintiffs.
Fundamentally, even if the Proposed Defendants are joined and found to have been involved in a contravention of the NES, and a declaration is made in respect of the Proposed Defendants’ involvement in that contravention, a debt does not arise. The FWA creates statutory rights and expounds the remedies with respect to contravention of those statutory rights. There is no sum certain, or fixed sum, which arises other than the statutory compensation derived from the FWA, in respect of which the Court of Appeal noted that it ‘might be said that the statutory scheme in s 539(2) was intended to be exhaustive’.[36]
[36]Tucker (Appeal), [346].
I agree with the submissions made by Timelio that the FWA does not disclose an intention to create or contemplate a statutory duty enforceable by way of a civil action for damages (or a debt).
The Plaintiffs say that they place no reliance on s 539(2). That is an understatement. By seeking to be paid by way of a debt they say is owed to them in this Court rather than an order for payment by way of compensation in a court identified in s 539(2), the Plaintiffs attempt to circumvent that provision.
What is more, I do not consider that there is jurisdiction to make a declaration in these circumstances. Accordingly, I do arrive at an anomalous situation in which there is no power to order compensation or a debt but a declaration may be ordered.
I do not agree that the Plaintiffs’ application is supported by the Court of Appeal’s decision in Tucker (Appeal). In that case, the declaration was for breach of obligations created by an enterprise agreement and there was no reliance on the relevant FWA provision.[37] I am not ‘bound’ to find that the Court has jurisdiction to make a declaration with respect to s 550 and/or s 44 insofar as the Proposed Defendants are concerned by the outcome in Tucker (Appeal).
[37] Tucker (Appeal), [346].
In the decision of Tucker (Appeal), the respondents in that case submitted that identified FWA civil remedy provisions constitute an exhaustive statement of the course to be followed in respect of contraventions, and that the specific conferral of jurisdiction on identified courts in s 539 of the FWA cannot sit with the general conferral of jurisdiction in s 39(2) of the Judiciary Act. However, Kyrou, McLeish and Sifris JJA did not need to decide the question, because no relief was sought for contravention of s 50 or any other civil remedy provision. The declarations sought (and ultimately granted by the Court of Appeal) concerned obligations arising under an enterprise agreement the terms of which were incorporated into an employment contract, rather than express enforcement of provisions of the FWA.[38] As noted above, the declaration ultimately made in Tucker (Appeal) did not make reference to contravention of the relevant sections of the FWA.[39]
[38]T.29.21–25.
[39]T.30.25–28. Tucker (Appeal) [346].
At [346], the Court of Appeal in Tucker (Appeal) also contrasted the pleading with one seeking an order for payment or reinstatement, ‘as to which it might be said that the statutory scheme in s 539(2) was intended to be exhaustive’.[40] This is an important statement by the Court of Appeal and is particularly apposite in this case. The Plaintiffs were not able to offer any submission as to how to avoid this, other than to say that it was obiter and that it did not tell against declaratory relief.
[40]The Court of Appeal contrasts this with decision of the High Court in Byrne at 425 (extracted in full above at paragraph 43).
The nature of the application before the Court of Appeal in Tucker (Appeal) is to be contrasted with that before McDonald J in Tucker (Interlocutory Decision). This is made clear by Court of Appeal at [349] to [352]:
349The second argument was that the associate judge had erred in failing to grant the applicant leave to file the Proposed 3rd FASOC. As indicated at [92] above, the relevant amendment which that document sought to make to the 2nd FASOC was the addition of paragraph 37A, to the following effect:
Further, the breaches alleged in paragraphs 34 to 37 above were contraventions of section 50 of the [FWA] as they were contraventions of the VPSEA.
350No amendment was sought to be made to the prayer for relief. In other words, the applicant was not seeking to introduce a claim, either for a civil penalty or for a declaration or other relief, for the contraventions of s 50 that were alleged. In one sense, the amendment was unnecessary because, as explained above, even without it the matter was one arising under the FWA in which the Court had jurisdiction. However, that would not afford a reason not to permit the amendment. The associate judge refused the amendment on the principal basis that it was an abuse of process. She also found that the application for amendment was not timely or fair to the respondents. In our view, the associate judge was in error in reaching these conclusions.
351The associate judge placed particular reliance on the ruling of McDonald J refusing the applicant leave to further amend his statement of claim to plead a contravention of s 50 of the FWA. The proposed pleading on that occasion involved seven separate contraventions and contained a prayer for relief seeking the imposition of penalties in respect of those contraventions. McDonald J held, as is no longer in contention, that the Supreme Court has no jurisdiction to hear and determine a claim for penalties for contravention of s 50. He held that it was not an appropriate exercise of the Court’s power to allow an amendment to plead a cause of action which the Court had no power to hear and determine. The associate judge held that, rather than seek to appeal against that decision, the applicant was seeking to re‑agitate the same issue.
352For the reasons given above, this was not so. Rather than pleading a cause of action relying on s 50, the Proposed 3rd FASOC sought only to allege contravention of s 50 without seeking any specific relief in relation to it. Certainly, the Proposed 3rd FASOC did not seek the imposition of any civil penalty in relation to s 50. The application was therefore markedly different from that which McDonald J refused.
The relief sought in connection with this Joinder Application is much closer to that which McDonald J considered in Tucker (Interlocutory Decision). While no civil penalty is sought here, it is notable that the Plaintiffs seek to introduce a claim for a declaration and other relief in respect of the FWA contraventions alleged. That is, the Plaintiffs plead a cause of action relying on ss 44 and 550 of the FWA, and seek specific relief in relation to that cause of action.[41]
[41]While the submissions of the Plaintiffs with respect to reliance on the FWA civil remedy provisions were somewhat confused (see above at paragraph 24, for example), it is clear that they are relied on. Indeed, without the civil remedy provisions, there could be no Joinder Application.
Those are the circumstances of this application. The Court’s jurisdiction does not extend to those circumstances.
It is not to the point that the Plaintiffs say that there is an implied contract of employment in existence between the Company and each of the Plaintiffs. There is no basis for the Joinder Application other than the accessorial liability provision under s 550 of the FWA, and the declaration sought is in connection with the FWA only. The Proposed Defendants are not parties to that implied contract of employment, and, at any rate, a declaration of breach of that implied contract by Timelio would not get the Plaintiffs any closer to recovery from the Proposed Defendants. This is a fundamental problem for the Plaintiffs in their Joinder Application, which their submissions conveniently bypass. It is inconceivable that s 550 of the FWA is able to be used to fix the Proposed Defendants with liability for a contravention of a civil remedy provision by a court which does not have jurisdiction to impose penalties or remedies in respect of such contravention.
As to the submission that, taken to its conclusion, Timelio’s argument would deny this Court its jurisdiction to order a debt for breach of implied terms of contracts of employment, that is not so. First, that is not what the Plaintiffs seek by their Joinder Application. Secondly, Timelio’s argument pointedly distinguishes between causes of action and relief relying on the FWA and causes of action based on other contractual arrangements or agreements, where they say that the Court does have jurisdiction.
I consider that the FWA evinces an intention to limit the jurisdiction of this Court conferred by s 39 of the Judiciary Act, such that this Court does not have jurisdiction to make a declaration which is sought in respect of a breach of a civil penalty provision or a person’s involvement under s 550 of the FWA.
This intention is clear from the statutory framework for relief in respect of civil remedy provisions. Section 539 provides that, in respect of civil remedy provisions, the identified persons listed may apply to the identified courts for orders in relation to a contravention. An employee, being such an identified person, may apply to the named courts for orders in relation to an alleged breach of the NES. While the provision does not expressly limit the jurisdiction of this Court, it is clear that, by its operation, the Court’s jurisdiction is limited. Section 539 delineates clearly in respect of employees which courts they may approach for orders with respect to a contravention of a civil remedy provision and, ss 545 and 546 set out the orders that can be made by each of those specified courts.
It is critical here that there is undoubted reliance on the FWA with respect to the declaration sought, in contrast with the situation in Tucker (Appeal).[42] It is tolerably clear that the specific conferral of jurisdiction on identified courts in respect of breaches of civil remedy provisions does not allow for other courts to usurp, in effect, the role which the Commonwealth Parliament conferred on those identified courts, to remedy breaches of those provisions. The statute creates the rights and, insofar as those rights are infringed, the statute creates the remedies.
[42]Tucker (Appeal), [346].
This outcome is not inconsistent with the decision in Tucker (Appeal) and it is also consistent with the decision in Re Optimisation. Brereton J may not have referred expressly to the Judiciary Act in Re Optimisation, however, his statement of the position with respect to the NSW Supreme Court was correct, and that position applies equally to this Court. The list of courts in the FWA is plainly an exhaustive list of the forums in which an employee may choose to pursue litigation against an employer or former employer in respect of this sort of relief. This Court does not fall within that exhaustive list.
From the above, it follows that this Court does not have jurisdiction in respect of the Proposed Defendants to make the declaration set out in the Proposed FASOC or to order a debt flowing from that declaration. It is not appropriate to allow an amendment to plead a cause of action which this Court has no power to hear and determine.
Even if I am wrong about that and this Court does have jurisdiction to grant declaratory relief in respect of a contravention of the FWA by the Proposed Defendants, I am not persuaded that I should exercise the Court’s discretion to allow the Joinder Application. That is because I consider it to have no real utility. The Plaintiffs conveniently assert that declaratory relief against the Proposed Defendants would give rise to a debt owing by the Proposed Defendants to the Plaintiffs, without in any way attempting to analyse or establish how that would be the case. In my view, a declaration that the Proposed Defendants have contravened a civil remedy provision of the FWA does not lead to an entitlement to payment unless the Court also makes orders for payment by the Proposed Defendants to the Plaintiffs. That is where we come full circle: the only cause of action which the Plaintiffs have against the Proposed Defendants for payment is for a contravention of a civil remedy provision, which on any analysis is not within this Court’s jurisdiction.
Conclusion
For the reasons set out above, I decline to grant the orders sought by the Plaintiffs.
My preliminary view in respect of costs is that costs ought follow the event, such that the Plaintiffs should pay the Defendant’s costs of the Joinder Application. If either party wishes to submit to the contrary, then they should send short written submissions of no more than 3 pages to my Chambers by 1 July 2024 and I will deal with it on the papers after that date.
The proceeding will be listed for 12 July 2024 so that directions can be made for the further conduct of the proceeding.
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