Rota v Fire Rescue Victoria

Case [2024] FCA 424

FEDERAL COURT OF AUSTRALIA

Rota v Fire Rescue Victoria [2024] FCA 424

File number(s): VID 13 of 2023
Judgment of: ANDERSON J
Date of judgment: 24 April 2024
Catchwords: REPRESENTATIVE PROCEEDINGS – Application for approval to discontinue a representative proceeding – principles relevant to approval of discontinuance – where each class member consented to the discontinuance – whether any limitation periods applicable to group members’ claims begin to run again upon discontinuance – discontinuance approved
Legislation: Federal Court of Australia Act 1976 (Cth)
Cases cited:

Babscay v Pitcher Partners (2020) 148 ACSR 551; [2020] FCA 1610

Wruck v Telstra Limited [2023] FCA 932
Division: Fair Work
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 23
Date of hearing: 24 April 2024
Solicitor for the Applicant: Alexander Law
Counsel for the Respondent: Mr L Howard
Solicitor for the Respondent: Victorian Government Solicitor’s Office

ORDERS

VID 13 of 2023
BETWEEN:

STEVE ROTA

Applicant
AND:

FIRE RESCUE VICTORIA ABN: 28598558561

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

24 APRIL 2024

THE COURT ORDERS THAT:

1.Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth), discontinuance of the proceeding be approved.

2.Pursuant to Order 1, the proceeding be discontinued.

3.Pursuant to s 33V and s 33ZF of the Federal Court of Australia Act 1976 (Cth), any limitation period that applies to any of the class members to which the proceeding relates shall begin to run again from 60 days after the making of this order.

4.There be no order as to costs.

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


REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

  1. By interlocutory application dated 26 July 2023, the Applicants seek leave pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act) to discontinue this proceeding. 

  2. The Applicants, in support of the application, rely upon an affidavit of Sameh Morris Iskander (being the solicitor acting for the Applicants) made 26 July 2023, and a further affidavit made 24 August 2023.

    BACKGROUND FACTS

  3. The proceeding before the Court is a representative proceeding governed by Part IVA of the Act. The proceeding seeks various forms of relief for class members who were employed by the Respondent, Fire Rescue Victoria (FRV) (Class Members).

  4. In short, the Amended Statement of Claim (filed on 3 April 2023) (ASOC) concerns FRV’s management of the risk of transmission of COVID-19 in its workplace and its directions to its employees to provide it with information in respect of their COVID-19 vaccination status.  The ASOC alleges, among other things, contraventions of:

    (a)the Fair Work Act 2009 (Cth) and instruments made under it, being the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 and the Fire Fighting Industry Award 2020;

    (b)the Australian Immunisation Register Act 2015 (Cth);

    (c)the Occupational Health and Safety Act 2004 (Vic);

    (d)the Equal Opportunity Act 2010 (Vic); and

    (e)common law duties in…

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Rota v Fire Rescue Victoria [2024] FCA 424
Case
[2024] FCA 424
Decision Date

CaseChat Overview and Summary

In the matter of Rota v Fire Rescue Victoria, the applicants sought approval to discontinue a representative proceeding concerning the management of COVID-19 risks and vaccination status reporting by Fire Rescue Victoria (FRV). The applicants, who were seeking relief on behalf of FRV employees, had originally intended to proceed with the claim funded by the Australian Firefighters Alliance (AFA). However, due to funding issues, the AFA instructed the applicants to discontinue the proceeding. The FRV, as the respondent, was subsequently notified of the intended discontinuance. The applicants filed an interlocutory application seeking court approval for the discontinuance and no orders as to costs.

The legal issues before the court included whether the discontinuance would be unfair, unreasonable, or adverse to the interests of the class members and whether any limitation periods applicable to the group members’ claims would begin to run again upon discontinuance. The court considered the principles set out in Babscay v Pitcher Partners and Wruck v Telstra Limited, which emphasize that the court must be satisfied that class members have been given notice of the proposal to discontinue the proceeding and that there are no incidental consequences for group members that may foreseeably arise by reason of the court’s approval to discontinue.

The court approved the discontinuance of the proceeding, noting that each class member had consented to the discontinuance and that there were no other incidental consequences for group members that would arise from the discontinuance. The court also ordered that any limitation period that applies to any of the class members would begin to run again from 60 days after the making of the order.

The court’s final orders included granting approval for the discontinuance of the proceeding, discontinuing the proceeding, and resetting the limitation periods for the class members. There were no orders as to costs.

Orders

Orders of the court

1. Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth), discontinuance of the proceeding be approved.

2. Pursuant to Order 1, the proceeding be discontinued.

3. Pursuant to s 33V and s 33ZF of the Federal Court of Australia Act 1976 (Cth), any limitation period that applies to any of the class members to which the proceeding relates shall begin to run again from 60 days after the making of this order.

4. There be 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

The Applicants, in support of the application, rely upon an affidavit of Sameh Morris Iskander (being the solicitor acting for the Applicants) made 26 July 2023, and a further affidavit made 24 August 2023. BACKGROUND FACTS The proceeding before the Court is a representative proceeding governed by Part IVA of the Act. The proceeding seeks various forms of relief for class members who were employed by the Respondent, Fire Rescue Victoria (FRV) (Class Members). In short, the Amended Statement of Claim (filed on 3 April 2023) (ASOC) concerns FRV’s management of the risk of transmission of COVID-19 in its workplace and its directions to its employees to provide it with information in respect of their COVID-19 vaccination status. The ASOC alleges, among other things, contraventions of:(a)the Fair Work Act 2009 (Cth) and instruments made under it, being the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 and the Fire Fighting Industry Award 2020;(b)the Australian Immunisation Register Act 2015 (Cth);(c)the Occupational Health and Safety Act 2004 (Vic);(d)the Equal Opportunity Act 2010 (Vic); and(e)common law duties in tort and the contracts of employment between FRV and the Class Members. Mr Iskander’s further affidavit deposes to the fact that the Applicants’ claim was originally to be funded by the Australian Firefighters Alliance (AFA). On 4 May 2023 however, Mr Iskander was instructed by the AFA to discontinue the proceeding due to funding issues. On 8 May 2023, the solicitors acting for FRV were advised by Mr Iskander that he had received instructions to discontinue the proceeding. On 26 July 2023, Mr Iskander filed an interlocutory application seeking orders that (a) the Applicants be granted leave to discontinue the proceeding, and (b) that there be no orders as to costs. Mr Iskander filed a solicitor’s affidavit in support of the application dated 26 July 2023. On 3 August 2023, the parties appeared before the Court for case management of this interlocutory application. Given the sparsity of the affidavit material relied upon by the Applicants, the Court ordered further affidavit evidence be filed to enable it to assess whether the Court should approve the discontinuance. On 24 August 2023, Mr Iskander filed his further affidavit in support of the interlocutory application, in which he annexed copies of signed consent notices from each of the 26 Class Members who had consented to being group members in the proceeding.THE APPLICABLE PRINCIPLES Section 33V of the Act prevents the discontinuance of a representative proceeding without the approval of the Court. It provides:33V Settlement and discontinuance - representative proceeding(1)A representative proceeding may not be settled or discontinued without the approval of the Court.(2)If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court. The principles that govern the Court’s discretion to approve a discontinuance have been collated by Anastassiou J in Babscay v Pitcher Partners (2020) 148 ACSR 551; [2020] FCA 1610 (Babscay) and Murphy J in Wruck v Telstra Limited [2023] FCA 932 (Wruck). In summary:(a)The Court asks whether approving the discontinuance would be unfair, unreasonable or adverse to the interests of class members, including as between class members. The Court does not need to be satisfied that the discontinuance is positively in the interests of group members. Babscay at [25]-[29]; Wruck at [34].(b)At the least, the Court will need to be satisfied that class members have been given notice of the proposal to discontinue the proceeding: Wruck at [20]-[21].(c)The Court’s task in considering whether to approve a discontinuance is different to its task in approving a settlement under section 33V of the Act: Babscay at [19]. This is due to the nature of a discontinuance, which has different legal consequences. A discontinuance is a unilateral act of an applicant, which (subject to cost consequences) puts the applicant in the same position as if the proceeding had not been commenced. As there is no agreement by which the proceeding is compromised, there can be no merger of the applicant’s rights in the proceeding. As there is no judicial determination, there can be no res judicata or issue estoppel: Babscay at [20]-[22].(d)Subject to those legal consequences, it is for the applicant to put before the Court any other incidental consequences for group members that may foreseeably arise by reason of the Court’s approval to discontinue.CONSIDERATION

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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