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 2018Judge: 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 2018BETWEEN: 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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- Case
- [2019] FCA 44
- Decision Date
CaseChat Overview and Summary
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
Background to the litigation
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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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