Phillips v Strasser

Case [2022] FedCFamC2G 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Phillips v Strasser [2022] FedCFamC2G 410

File number: MLG 3375 of 2021
Judgment of: JUDGE FORBES
Date of judgment: 27 May 2022
Catchwords: INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 and breaches of contract – adequacy of pleading – whether pleading alleges viable causes of action – requirement to plead material facts of employment and contraventions – application for summary dismissal of proceeding or strike out – effect of limitation periods - statement of claim struck out with right to replead
Legislation:

Fair Work Act 2009 (Cth) s 45, 293, 535, 539, 544, 545, 550, 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.06,

Federal Court Rules 2011 (Cth) r 13.13, 16.21

Judiciary Act 1903 (Cth) s 79

Limitation of Actions Act 1958 (Vic) s 5

Religious and Successory Trusts Act 1958 (Vic) s 27

Cases cited:

Abela v Minister for Home Affairs [2021] FCA 96

Bhalla v Wheldon [2022] FedCFamC2G 86

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293

Spencer v Commonwealth (2010) 241 CLR 118

Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117

Wride v Schulze [2004] FCAFC 216
Division: Division 2 General Federal Law
Number of paragraphs: 70
Date of last submission: 18 May 2022
Date of hearing: 20 May 2022
Counsel for the Applicant: Mr Jenshel
Counsel for the First, Second and Third Respondents: Mr Tracey
Solicitor for the Applicant: Mann Lawyers Pty Ltd
Solicitor for the Respondents: Perry Maddocks Trollope Lawyers

ORDERS

MLG 3375 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MARK FRANCIS PHILLIPS

Applicant
AND:

AARON STRASSER

First Respondent

MICHAEL MOSHE FRIEDMAN

Second Respondent

BENYOMIN KLEIN

Third Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

27 MAY 2022

THE COURT ORDERS THAT:

1.The Applicant’s Amended Statement of Claim filed on 21 April 2022 be struck out.

2.The Applicant be granted leave to file and serve a further Amended Statement of Claim by 1 July 2022.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE FORBES

INTRODUCTION

  1. This decision concerns an application brought on behalf of the three respondents to the original application who seek orders:

    (1)That the applicant’s Statement of Claim be struck out in whole or in part pursuant to rule…

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AGLC
Phillips v Strasser [2022] FedCFamC2G 410
Case
[2022] FedCFamC2G 410
Decision Date

CaseChat Overview and Summary

In the matter of Phillips v Strasser, the Federal Circuit and Family Court of Australia is addressing an application by the applicant, Mr. Phillips, who seeks various remedies against three respondents, Mr. Aaron Strasser, Mr. Michael Moshe Friedman, and Mr. Benyomin Klein. The claims include alleged contraventions of the Fair Work Act, breach of contract, and various remedies such as compensation, declarations of entitlements, pecuniary penalties, and damages. The case arises from Mr. Phillips' employment relationship with the Congregation Adass Israel Trust, an unincorporated association, and the trustees thereof. Mr. Phillips performed duties related to the ritual slaughter and preparation of animal meat products according to Jewish dietary laws.

The primary legal issues the court needed to resolve involved the sufficiency of the applicant's pleadings. Specifically, the court had to determine whether the Amended Statement of Claim sufficiently outlined the alleged employment relationship, the terms of that relationship, and the connection between the respondents and Mr. Phillips' employment. The court also needed to address whether the claim adequately detailed the alleged contraventions of the Fair Work Act and the breach of contract, and if the remedies sought were appropriate. Additionally, the court considered the procedural fairness and the possibility of the case proceeding more efficiently with a new pleading.

The court found that the Amended Statement of Claim was not sufficiently detailed to proceed to a substantive hearing. It noted that while there were undisputed background facts, the specifics of the employment relationship, the terms of the employment, and the connection to the respondents were not adequately pleaded. The court emphasised the importance of civil procedure provisions aimed at resolving disputes efficiently and according to law. It concluded that a new pleading would be more likely to ensure the case proceeded on an even footing. Consequently, the court dismissed the application, leaving it to the applicant to prepare a more comprehensive pleading.

The court's final order was to dismiss the application and to direct Mr. Phillips to prepare and file a new Statement of Claim within the specified timeframe. The court emphasised that the dismissal was not a reflection on the merits of the case but rather a procedural step to ensure the litigation process was efficient and fair.

Orders

Orders of the court

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Background

Background to the litigation

Of the various courses available to me, I consider this the most appropriate because I am not persuaded that the current pleading can be refashioned by amendment or excision. The overarching purpose of civil practice and procedure provisions which apply in this court is to ensure the resolution of disputes according to law and as quickly, inexpensively and efficiently as possible[1]. At the risk of this decision being perceived as sending the applicant back to the proverbial drawing board, I consider it more likely that this case will proceed on an even footing if a new pleading is produced.[1] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190BACKGROUND In this case the applicant, Mr Phillips, seeks various remedies against three respondents, Mr Aaron Strasser, Mr Michael Moshe Friedman and Mr Benyomin Klein (the respondents), in relation to alleged contraventions of the FW Act and in respect of alleged breach of contract. The remedies sought against the respondents in relation to the contraventions of the FW Act include an order for compensation, a declaration as to the quantum of various entitlements owing to the applicant and an order imposing pecuniary penalties for breaches of civil remedy provisions. The applicant also seeks damages from the respondents in relation to breach of contract. As will be self-evident from the foregoing paragraph, the applicant’s claim arises from an alleged employment relationship. However, it is the pleading of that relationship, the terms of the relationship and the connection between the respondents and the applicant’s employment which gives rise to difficulties in this nascent litigation. There are some background facts which are not in contest. The applicant, Mr Phillips, has performed work since in or about September 1984 for the Congregation Adass Israel Trust, an unincorporated association. In the course of that work, Mr Phillips has performed and been paid for duties in relation to the ritual slaughter and preparation of animal meat products and certification of those practices in accordance with Jewish dietary laws. The three respondents are trustees for the time being of the Congregation Adass Israel Trust. There is also a fourth trustee, Mr Benjamin Koppel, who is not named as a respondent. The exclusion of Mr Koppel from the litigation appears to be an oversight on the part of the applicant and, depending on the future course of this litigation, he may be included as a party. That is a matter for the applicant. There appears to be consensus that Mr Phillips performed work from time to time within the Adass religious community and that he was subject to the oversight and directions of a senior rabbi who had absolute authority in the Adass congregation on questions of Jewish law, including dietary laws. Mr Phillips pleads that the Congregation Adass Israel Trust conducted business activities including administering the Adass religious community and the hiring of slaughterers and inspectors and the performance of certification activities for Kosher butchers under its supervision. Mr Phillips’ work was performed within the context of these various activities.The Amended Statement of Claim

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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