Quinn v Kai Seng Australia Holding Pty Ltd

[2019] FCCA 1442

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUINN v KAI SENG AUSTRALIA HOLDING PTY LTD & ORS [2019] FCCA 1442

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth).

PRACTICE AND PROCEDURE – Whether the Court has jurisdiction in respect of a claim for long service pay under the Long Service Leave Act 1955 (NSW).

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s.18

Judiciary Act 1903 (Cth), s.79B

Long Service Leave Act 1955 (NSW), ss.4, 12

Cases cited:

East v Coulson (2010) 244 FLR 1

Smith v Smith (1986) 161 CLR 217

The Rochester Communications Group Ltd (1996) 65 FCR 572

Blacker v National Australia Bank Ltd [2000] FCA 681

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd

(2001) 204 CLR 559

Applicant: MARK QUINN

First Respondent: KAI SENG AUSTRALIA HOLDING PTY LTD ACN 074 527 763

Second Respondent: XIANGLI WANG

Third Respondent: LI PING HUANG

Fourth Respondent: KAI SENG COMPUTER SOLUTION PTY LTD

File Number: SYG 993 of 2018

Judgment of: Judge Emmett

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Sydney

Delivered on: 29 May 2019

REPRESENTATION

Solicitor for the Applicant: Mr Dean Lestal

Solicitors for the Applicant: Santone Lawyers

Counsel for the Second Respondent: Mr Ian Latham

Solicitors for the Second Respondent: Raymond Lee & Co

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 993 of 2018

MARK QUINN

Applicant

And

KAI SENG AUSTRALIA HOLDING PTY LTD ACN 074 527 763

First Respondent

XIANGLI WANG

Second Respondent

LI PING HUANG

Third Respondent

KAI SENG COMPUTER SOLUTION PTY LTD

Fourth Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 1 November 2018, the second respondent seeks to strike out paragraphs in the Further Amended Statement of Claim that relate to claims under the Long Service Leave Act 1955 (NSW) (“LSLA”). The second respondent contends that this Court does not have accrued or associated jurisdiction to deal with long service leave claims as such claims are specifically reserved to a State Court.

2. The applicant makes the claim under the LSLA pursuant to s.18 of Federal Circuit Court of Australia Act 1999 (Cth) as a claim in respect of which the applicant submits that this Court has associated jurisdiction.

3. Under s.4(1) of the LSLA, except as otherwise provided, every worker is entitled to long service leave pay. That creates a right for a worker to recover long service leave pay from his employer. The question is where can the applicant enforce that right. Section 4(1) is in the following terms:

   “4   Long service leave

   (1)  Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.”

4. Section 12(1) of the LSLA is in the following terms:

   “12   Recovery of long service leave pay

   (1) Any worker may apply to the Local Court, or to the Supreme Court, for an order directing the employer to pay to the worker the full amount of any payment which has become due to the worker under this Act at any time during the period of 6 years immediately preceding the date of the application but not earlier than 2 years before the date of assent to the Long Service Leave (Amendment) Act 1980.

   The Local Court or Supreme Court may make any order it thinks just in the matter and may award costs to either party, and assess the amount of such costs.”

   (Emphasis added)

5. It is common ground that this Court has no express power to deal with long service leave.

6. The second respondent contends that were this Court to “pick up” the LSLA, it would “pick up” the criminal aspects of that Act as well which would give an altered meaning to the severed part of the legislation.

7. The second respondent submitted that this Court could not use s.79B of the Judiciary Act 1903 (Cth) where it was being asked to use accrued or associated jurisdiction and where the Court was not seeking to “pick up” the whole of the LSLA. The second respondent submits that the LSLA is not appropriate to be “picked up” because of its criminal aspects.

8. In support, the second respondent referred to East v Coulson (2010) 244 FLR 1 at [76] and [84]. The second respondent also referred in support to Smith v Smith (1986) 161 CLR 217 where the applicants in that case sought an approval by the Family Court of Australia of a release pursuant to the Family Provision Act 1982 (NSW) where that Act expressly required an order from of the New South Wales Supreme Court for such an approval to be of any effect at law.

9. True it is that a federal court cannot exercise an associated or accrued jurisdiction in respect of matters that are expressly reserved to a State court (see The Rochester Communications Group Ltd (1996) 65 FCR 572 at 574; Blacker v National Australia Bank Ltd [2000] FCA 681 at [26]).

10. However, plainly the terms of s.12 of the LSLA do not expressly exclude a federal court from exercising associated or accrued jurisdiction.

11. Section 18 of the Federal Circuit Court of Australia Act 1999 (Cth) is as follows:

    “Jurisdiction in associated matters

    To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.”

12. In its Second Further Amended Statement of Claim, filed on 8 March 2019, the applicant is seeking damages and penalties in respect of alleged breaches of the modern award and breach of contract in the nature of underpayments, unpaid additional hours, leave loading and superannuation guaranteed. The applicant also seeks the payment of statutory entitlements owing upon termination and payment of long service leave owing upon termination. The claims arose from alleged contraventions by the applicant’s employer over the period of employment from 7 August 2006 to 27 January 2016.

13. The applicant was employed either by the first respondent or the fourth respondent. The second respondent was a director of the first respondent and allegedly the applicant’s manager. The third respondent was the wife of the second respondent and allegedly facilitated payment of wages of the first and fourth respondents.

14. The applicant sues the second respondent for damages as a result of accessorial liability in the contraventions of the modern award and the employment contract by the first respondent or the fourth respondent.

15. All the claims arise from a common substratum of facts being the period of employment of the applicant as a delivery driver and fleet manager; and a national systems employee pursuant to s.13 of the Fair Work Act2009 (Cth). The long service leave claim is thereby associated with matters in which the jurisdiction of this Court is properly invoked.

16. The applicant submits that this Court’s jurisdiction cannot be “stultified” in determining the applicant’s long service leave claim where it arises from the same substratum of facts. In support the applicant referred to Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 where at [141] McHugh J stated that courts exercising federal jurisdiction should operate on the hypothesis that s.79 of the Judiciary Act 1903 (Cth) will apply the substance of any relevant state law where it can be applied. His Honour stated that, “The efficacy of federal jurisdiction would be seriously impaired if State statues were held to be inapplicable in federal jurisdiction by reason of their literal terms or verbal distinctions and without reference to their substance.”

17. Where the jurisdiction of this Court is not excluded by the terms of the LSLA; where this Court has jurisdiction under the Fair Work Act for the claims made; and, where there is a common substratum of facts, s.12 of the LSLA creates a right that the applicant is entitled to enforce in this Court.

18. Accordingly, the Application in a Case, filed on 1 November 2018, should be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 May 2019