Quirk v Construction, Forestry, Mining and Energy Union (No 2)

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FEDERAL COURT OF AUSTRALIA

Quirk v Construction, Forestry, Mining and Energy Union (No 2) [2019] FCA 44

File numbers: NSD 1344 of 2017
NSD 1027 of 2018
NSD 1028 of 2018
Judge: PERRAM J
Date of judgment: 31 January 2019
Catchwords: PRACTICE AND PROCEDURE – application to amend statement of claim and rule to show cause – application to correct identity of party or alternatively join party – where Applicants seek to file one statement of claim in multiple related proceedings – where proceedings transferred from Federal Circuit Court
Legislation: Federal Court Rules 2011 (Cth) rr 1.35, 8.21, 9.05
Cases cited:

Quirk v CFMEU (No 2) [2017] FCCA 1788; 322 FLR 423

Quirk v Construction, Forestry, Mining and Energy Union NSW Branch [2017] FCCA 81

Date of hearing: 31 August 2018
Date of last submissions: 5 September 2018 (Respondents)
7 September 2018 (Applicants)
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 29
Counsel for the Applicants: M Seck with B Byrnes
Solicitor for the Applicants: McArdle Legal
Counsel for the Respondents: B G Docking
Solicitor for the Respondents: Taylor & Scott Lawyers

ORDERS

NSD 1344 of 2017
NSD 1027 of 2018
NSD 1028 of 2018
BETWEEN:

ANDREW QUIRK

First Applicant

BRIAN MILLER

Second Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

DAVID NOONAN

Second Respondent

FRANK O'GRADY (and others named in the Schedule)

Third Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

31 JANUARY 2019

THE COURT ORDERS THAT:

1.The Applicants have leave to correct the name of the respondent in NSD 1027 of 2018 and NSD 1028 of 2018 to ‘Construction, Forestry, Mining, Maritime and Energy Union’.

2.The Applicants have leave to join the Construction, Forestry, Mining and Energy Union (NSW Branch) (‘State Registered Union’) as a second respondent in NSD 1027 of 2018 and NSD 1028 of 2018.

3.Within 21 days Mr Quirk and Mr Miller are to file (in NSD 1344 of 2017) a statement of claim setting out in properly pleaded form the allegations underlying the claims for relief in the application for the rule to show cause (other than paragraph 3(b)).

4.Within 21 days Mr Quirk (in NSD 1028 of 2018) is to file a statement of claim which:

(a)is consistent with the allegations made on his behalf in the draft pleading attached to the interlocutory application filed on 4 July 2018 (‘Draft’) but which does not include the allegations which are only relevant to Mr Miller or the allegations made in NSD 1344 of 2017;

(b)joins (if Mr Quirk wishes) the State Registered Union as a second respondent and includes allegations that it was his employer (consistent with the Draft);

(c)provides proper particulars for that allegation.

5.Within 21 days Mr Miller (in NSD 1027 of 2018) is to file a statement of claim which:

(a)is consistent with the allegations made on his behalf in the Draft but which does not include the allegations which are only relevant to Mr Quirk…

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Details
Case
[2019] FCA 44
Decision Date

CaseChat Overview and Summary

In the case of Quirk v Construction, Forestry, Mining and Energy Union (No 2), the applicants, Mr Quirk and Mr Miller, sought to amend their statements of claim in three related proceedings. These proceedings, initially heard in the Federal Circuit Court, were transferred to the Federal Court. The applicants wished to correct the identity of the respondent in two of the cases and to join the Construction, Forestry, Mining and Energy Union (NSW Branch) as a second respondent in those cases. The applicants also sought to consolidate the claims made in the applications for a rule to show cause in one of the cases into a statement of claim.

The court was required to determine whether the applicants could amend their statements of claim and whether they could join the State Registered Union as a second respondent. The applicants argued that correcting the identity of the respondent and joining the State Registered Union was necessary to ensure the proceedings were just and efficient. They contended that the amendments would not prejudice the respondents and that the claims were sufficiently similar to warrant consolidation.

The court granted the applicants leave to correct the identity of the respondent in two of the cases and to join the State Registered Union as a second respondent in those cases. The court also directed the applicants to file separate statements of claim in each case, tailored to the specific allegations relevant to each applicant. The court further ordered that the matter be stood over for a further case management hearing to outline the respondents' defences, the number of witnesses they intended to call, and the applicants' expected witnesses. The court also directed the parties' counsel to confer and agree on the duration of the trial, with a letter to be provided to the court.

The court did not make any order as to costs. The orders were made under Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The Applicants have leave to correct the name of the respondent in NSD 1027 of 2018 and NSD 1028 of 2018 to ‘Construction, Forestry, Mining, Maritime and Energy Union’.

2. The Applicants have leave to join the Construction, Forestry, Mining and Energy Union (NSW Branch) (‘State Registered Union’) as a second respondent in NSD 1027 of 2018 and NSD 1028 of 2018.

3. Within 21 days Mr Quirk and Mr Miller are to file (in NSD 1344 of 2017) a statement of claim setting out in properly pleaded form the allegations underlying the claims for relief in the application for the rule to show cause (other than paragraph 3(b)).

4. Within 21 days Mr Quirk (in NSD 1028 of 2018) is to file a statement of claim which:

(a) is consistent with the allegations made on his behalf in the draft pleading attached to the interlocutory application filed on 4 July 2018 (‘Draft’) but which does not include the allegations which are only relevant to Mr Miller or the allegations made in NSD 1344 of 2017;

(b) joins (if Mr Quirk wishes) the State Registered Union as a second respondent and includes allegations that it was his employer (consistent with the Draft);

(c) provides proper particulars for that allegation.

5. Within 21 days Mr Miller (in NSD 1027 of 2018) is to file a statement of claim which:

(a) is consistent with the allegations made on his behalf in the Draft but which does not include the allegations which are only relevant to Mr Quirk or the allegations made in NSD 1344 of 2017;

(b) joins (if Mr Miller wishes) the State Registered Union as a second respondent and includes allegations that it was his employer (consistent with the Draft);

(c) provides proper particulars for that allegation.

6. Stand over the matter to 26 February 2019 at 9.30 am for a further case management hearing.

7. At that case management hearing the Respondents be able to outline to the Court:

(a) whether employment is admitted and if not why not;

(b) whether the rule 49(a) defence is to be raised and if so how (especially from where the terms of employment such as wages and entitlement are said to derive);

(c) other defences;

(d) the number of witnesses they would intend to call and who they are;

(e) whether, if it has not already occurred by consent between the parties, the individual respondents need to be kept in as parties;

and for the Applicants to be able to outline:

(f) how many witnesses they expect to call in their case and who they are.

8. The parties’ counsel are to confer before 26 February 2019 and work out how long the trial is to take and provide a letter to my chambers signed by both counsel certifying that they have so met and the agreement they have reached.

9. No order as to costs.

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

Background

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Decision

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