Raeburn v Amici BAKERY and Ors (No.2) - [2015] FCCA 2327

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAEBURN v AMICI BAKERY & ORS (No.2)

[2015] FCCA 2327

Catchwords:
PRACTICE & PROCEDURE – Application by first to fourth respondents for costs pursuant to section 570(2)(b) of the Fair Work Act 2009 – whether unreasonable act or omission caused respondents to incur costs – application dismissed.

Legislation:

Fair Work Act 2009, ss.70(2)(b), 539, 546, 550, 570

Federal Circuit Court of Australia Rules 2001, r.13.03(B)(1)(a)
Federal Circuit Court of Australia Act 1999 (Cth), ss.79, 37M, 37N, 14
Workplace Relations Act 1996, s.824(2)

Saxena v PPF Asset Management Ltd [2011] FCA 395

Stanley v Service to Youth Council Incorporated(No.3) [2014] FCA 716
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
Ryan v Primesafe [2015] FCA 8
Rentuza v Westside Auto Wholesale [2009] FMCA 1022

Applicant:

KARA TAMIKA RAEBURN

First Respondent

AMICI BAKERY

Second Respondent

PAUL FRANCIS KORSZAK-KRZECZOWSKI

Third Respondent

SANDRA LEE

Fourth Respondent

JEAN LEE

Fifth Respondent:

DANIEL SCOTT KAGAN

File Number:

MLG 1496 of 2013

Judgment of:

Judge Jones

Hearing date:

4 May 2015

Date of Last Submission:

29 June 2015

Delivered at:

Melbourne

Delivered on:

27 August 2015

REPRESENTATION

Solicitors for the Applicant:

Mr Peter Lustig

Solicitors for the Respondent:

Gleeson & Co

ORDERS

The application filed by the first to fourth respondents on 2 March 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1496 of 2013

KARA TAMIK RAEBURN

Applicant

And

AMICI BAKERY

First Respondent

PAUL FRANCIS KORSZAK-KRZECZOWSKI

Second Respondent

SANDRA LEE

Third Respondent

JEAN LEE

Fourth Respondent

DANIEL SCOTT KAGAN

Fifth Respondent

REASONS FOR JUDGMENT

Introduction

On 4 February 2015, I dismissed the applicant’s Application alleging contraventions of section 45 of the Fair Work Act 2009 (“the Act”) as a consequence of breaches of the Restaurant Industry Award 2010 (“the Award”), and breaches of her contract of employment with the first respondent, pursuant to rule 13.03 (B)(1)(a) of the Federal Circuit Court of Australia Rules 2001 (“the Rules”).
The applicant filed her Application and Statement of Claim on 12 September 2013. She claimed damages for the alleged contraventions and breaches together with the imposition of civil penalties under sections 539, 546 and 550 of the Act.
The first respondent was the applicant’s former employer. The second to fourth respondents were directors of the first respondent at various times. The fifth respondent was joined as a respondent during the course of proceedings, on application by the first to fourth respondents (who shall be collectively referred to in this judgment as “the respondents”). The fifth respondent was a former director of the first respondent.
The litigation of this matter took some time for a variety of reasons which is apparent from the summary of the procedural history of proceedings:
a)The applicant was employed as a manager with the first respondent;
b)At the same time as the applicant filed her Application, three Applications were filed by three applicants who were casual employees (front of house staff) employed by the first respondent. (collectively “the casuals”) claiming damages…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2327
Decision Date: 27 August 2015

CaseChat Overview and Summary

In *Raeburn v Amici BAKERY and Ors (No.2)*, the applicant, Raeburn, sought to join additional respondents to proceedings that had already been commenced against Amici BAKERY and other named parties. The dispute concerned allegations of breaches of contract and misleading and deceptive conduct. The application to join the new respondents was heard by Judge Jones in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant had established a sufficient basis to join the proposed additional respondents to the existing proceedings. This involved considering the principles governing the joinder of parties, particularly in circumstances where the applicant sought to rely on a broad claim of joint and several liability and alleged a common course of conduct across all respondents. The court also had to determine if the proposed joinder was necessary for the proper and just determination of the dispute, and whether it would cause prejudice to the existing parties.

Judge Jones applied the principles established in cases concerning the joinder of parties, emphasizing that joinder should only be permitted where it is necessary for the effective resolution of the dispute and where the applicant can demonstrate a real question to be tried against the proposed respondents. The court found that the applicant had not provided sufficient evidence to establish a prima facie case against the proposed additional respondents, nor had it demonstrated that their joinder was necessary for the just and convenient trial of the action. The applicant's claims against the new respondents were considered to be speculative and lacking in particularity.

Consequently, Judge Jones dismissed the application to join the additional respondents to the proceedings.

Orders