Slattery v Canard Consolidated Pty Ltd

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198

File number(s): MLG 1636 of 2022
Judgment of: JUDGE SYMONS
Date of judgment: 16 March 2023
Catchwords: PRACTICE AND PROCEDURE – application for leave under rule 11.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to join a third respondent to proceedings – where applicant proposes to include related corporation as accessory to alleged contravention of the Fair Work Act 2009 (Cth) – where it is alleged that the second respondent was the controlling mind of the proposed third respondent – whether the applicant has an arguable case against the proposed third respondent – leave granted to include proposed third respondent – application for leave under rule 9.04 to dispense with requirement that corporation be represented by a lawyer – where proposed non-lawyer is the second respondent – whether proposed non-lawyer able to impartially conduct proceeding – interests of justice best served if corporate respondents legally represented
Legislation:

Fair Work Act 2009 (Cth) ss 90, 340, 361, 535, 550, 793

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175, 190, 191

Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 rr 9.04, 11.01, 11.02

Long Service Leave Act 2018 (Vic)
Cases cited:

Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) (2010) 89 IPR 274; [2010] FCA 1202

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361

Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488

Birtles v Commonwealth [1960] VLR 247

John Holland Pty Ltd v Comcare (2009) 190 IR 165; [2009] FCAFC 27

Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor [2016] FCCA 2499

Lukies v S2V Consulting Pty Ltd (2018) 333 FLR 226; [2018] FCCA 1431

Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 4) [2009] FMCA 291

Wayne v Dillon & Anor (2008) 40 Fam LR 543; [2008] FamCAFC 204

Division: Division 2 General Federal Law
Number of paragraphs: 52
Date of last submission/s: 2 February 2023
Date of hearing: 2 February 2023
Place: Melbourne
Counsel for the Applicant: Mr D. Murphy
Solicitor for the Applicant: Maurice Blackburn Lawyers
First Respondent: Mr D. Dunn (Director)
Second Respondent: In Person
Proposed Third Respondent Mr D. Dunn (Director)

ORDERS

MLG 1636 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CONNOR SLATTERY

Applicant
AND:

CANARD CONSOLIDATED PTY LTD

First Respondent

DAVID DUNN
Second Respondent

order made by:

JUDGE symons

DATE OF ORDER:

16 March 2023

THE COURT ORDERS THAT:

1.The applicant has leave pursuant to rule 11.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) to include Canard Solutions Pty Ltd (ACN 151 646 150) as third respondent in the proceedings.

2.The application in a case filed by the first respondent…

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Details
Case
[2023] FedCFamC2G 198
Decision Date

CaseChat Overview and Summary

The case of Slattery v Canard Consolidated Pty Ltd was heard in the Federal Circuit and Family Court of Australia. Mr Slattery brought an application against Canard Consolidated, alleging wrongful dismissal and other breaches of employment laws. Canard Consolidated opposed the application, and the court heard submissions from both parties. The primary issue before the court was whether the applicant could join Canard Solutions as a party to the proceedings, in addition to Canard Consolidated. The court had to consider the principles governing joinder of parties under the Federal Circuit and Family Court of Australia Act 2021.

The court considered the principles for joinder of parties, including the discretionary nature of the court's power to join a party, and the objectives of the Act to ensure proceedings are resolved justly, efficiently, and economically. The court noted that joinder could be sought under either r 11.01 or r 11.02 of the Rules, with different tests applying under each provision. The applicant needed to demonstrate an arguable case that Canard Solutions should be joined as a party. The court also had to consider whether the questions involved in the existing action included those arising out of the transaction or series of transactions on which the cause of action was based. Other factors such as case management and delay could also influence the exercise of the court's discretion.

After considering the submissions and applicable principles, the court found that the applicant had not demonstrated a case which was arguable that Canard Solutions should be joined as a party to the proceedings. The court noted that the applicant had not provided sufficient evidence to support his contention that Canard Solutions was involved in employment arrangements. The court held that extending the net to include Canard Solutions would result in additional work and delay for both parties. Therefore, the application for joinder was dismissed.

The final orders of the court were that the application for joinder of Canard Solutions be dismissed, and that Canard Consolidated pay the applicant's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

In each case the application was opposed, and I heard submissions at the directions hearing from the parties as to their respective positions.background These proceedings were commenced by the applicant filing an originating application and statement of claim on 13 July 2022. By his substantive application, the applicant alleges that he was dismissed by Canard Consolidated in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act). The applicant makes further claims that include a failure to make and keep employee records as required under s 535(1) of the FW Act, a failure to pay annual leave as required under s 90(2) of the FW Act. The applicant claims that by operation of s 550 of the FW Act, Mr Dunn as director of Canard Consolidated, was involved in and therefore liable as an accessory, for each of these alleged contraventions. By his substantive application, the applicant, Mr Slattery, alleges (in summary and adopting the terminology used in the statement of claim) that:(a)he was employed by Canard Consolidated from 14 November 2014 to March 2015 as a casual employee, and from March 2015 until 14 January 2022 as a full-time employee. From around March 2021, the applicant was employed as General Manager, Canard Solutions;(b)on 4 August 2021, during a conversation with Mr Dunn, Mr Slattery made inquiries regarding $25,000 in unpaid remuneration for the year 2019-20, whether he would be paid any bonus for the year 2020-2021, and whether he could take paid parental leave (the First 4 August 2021 inquiries).(c)later, on 4 August 2021, during a telephone conversation with Mr Dunn, Mr Slattery inquired about (amongst other things) whether he could take long service leave (the Second 4 August 2021 inquiries) and he advised Mr Dunn that he proposed to take 16 weeks of paid leave once his wife had given birth (the 16 Weeks Paid Leave). (d)on the same date, Mr Dunn emailed Mr Slattery proposing to pay him $18,000 to rectify the unpaid remuneration instead of the $25,000 as previously agreed. Mr Slattery responded via email that he did not agree to this proposal (the 4 August 2021 complaint). (e)On 10 August 2021, Mr Dunn and Mr Slattery agreed that: (i)Canard Consolidated would back-pay Mr Slattery $25,000 for unpaid salary; (ii)Canard Consolidated would pay Mr Slattery 8 weeks of annual leave accrued across his period of employment prior to the current year; (iii)Mr Slattery was additionally entitled to any annual leave he had accrued during 2021; (iv)Mr Slattery was entitled to long service leave, and his entitlement to long service leave crystallised on 14 November 2021 being the point at which Mr Slattery reached 7 years continuous service; (v)Canard Consolidated would pay Mr Slattery 2 weeks full time and 4 weeks part time paternity leave; (vi)Mr Slattery would be covered by a 12-month restraint of trade; (vii)a draft contract sent by Mr Dunn to Mr Slattery on 26 April 2021 would be amended to reflect the above terms(the 10 August 2021 agreement). (f)On 13 October 2021, Mr Slattery commenced taking the 16 Weeks Paid Leave.(g)On 14 December 2021, Mr Dunn sent Mr Slattery an email informing him that Canard Consolidated would shortly make its last payment for Mr Slattery’s 16 week period of leave, and that Mr Slattery would be on leave without pay from then on until his return. (h)On 15 December 2021, Mr Slattery sent Mr Dunn an email: (i)indicating that Mr Slattery had understood that he would be on paid leave for the entire duration of the 16 week leave period, given that he had accrued further annual leave during 2021 and Mr Dunn had agreed he could take long service leave and paid parental leave;(ii)asking Mr Dunn to review the emails setting out the 10 August 2021 Agreement and to advise him which part of his understanding was inconsistent with the 10 August 2021 Agreement(the 15 December 2021 inquiry).(i)On 15 December 2021, Mr Dunn replied to Mr Slattery’s email and stated that Mr Slattery had at that time only accrued half of his yearly annual leave entitlements.(j)On 16 December 2021, Mr Slattery responded, stating that Mr Dunn’s email was inaccurate and that he had continued to accrue paid annual leave entitlements during the paid leave, attaching a link to information on the Fair Work Ombudsman website (the 16 December 2021 complaint and inquiry). (k)On 16 December 2021, Mr Dunn emailed a notice of termination to Mr Slattery which informed him that his employment with Canard Consolidated was terminated, effective on 14 January 2022, after a period of 4 weeks’ notice.(l)Mr Slattery has not received any further payments from Canard Consolidated since he was paid his usual weekly salary payment on 15 December 2022.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Dunn described the application as involving “substantial overreach” on the part of the applicant. He asserted, from the “Bar table”, that Canard Solutions was in no way involved in the resolution of employment arrangements, either with respect to the applicant, or more generally. He told the Court that all decisions concerning employee relations, including those regarding the payment of employee entitlements, were made by Canard Consolidated. Mr Dunn submitted that “extending the net” wider to comprehend a claim against Canard Solutions would simply result in the parties having to undertake additional work.CONSIDERATION The applicable principles governing an application for joinder pursuant to r 11 of the Rules were extensively surveyed by Judge Lucev in Lukies v S2V Consulting Pty Ltd (2018) 333 FLR 226. The following principles can be distilled from his Honour’s analysis of the relevant authorities:(a)Whether or not to grant leave is a matter within the discretion of the court having regard to all the circumstances of the case. The discretion to join a new party is “a wide one”;[7](b)In exercising discretion it is relevant to have regard to the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act) including that the Court is intended to operate in as informal a manner as possible in the exercise of judicial power, that it is not to be protracted in its proceedings, that it is to resolve proceedings justly, efficiently and economically using streamlined procedures and that it is to avoid undue delay, expense and technicality;[8](c)Rules 11.01 and 11.02 provide separate bases for a party to be joined to proceedings in this Court. It is therefore necessary when considering an application for joinder to determine if the application is made on the basis of r 11.01 or r 11.02 (or both). This is because different tests apply for joinder under these different provisions;(d)While, for the purpose of considering r 11.01(1) it is necessary to consider whether a person’s participation is “necessary for the Court to completely and finally determine all matters in dispute in a proceeding”, under r 11.02(1) of the Rules, a party may include another party to a proceeding in certain circumstances, notwithstanding that they may not be a necessary party;[9](e)Questions involved in an existing action include questions arising out of the transaction or a series of transactions on which the cause of action was based. These would include the question of whether, if the original defendant is not liable to compensate the plaintiff for damages suffered by him, some other person proposed to be added may be considered liable in the circumstances;[10](f)An applicant for joinder must demonstrate a case which is “arguable”, not a prima facie case;[11] and(g)The exercise of the Court’s discretion under r 11.02 might also be influenced by other factors, particularly issues such as case management and delay.[7] Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) (2010) 89 IPR 274; [2010] FCA 1202 at [8].[8] Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 4) [2009] FMCA 291 at [31].[9] See Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488 at [13]; Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor [2016] FCCA 2499 at [8].[10] See Birtles v Commonwealth [1960] VLR 247 as cited in John Holland Pty Ltd v Comcare (2009) 190 IR 165 at [21].[11] See Wayne & Dillon & Anor [2008] FamCAFC at [17]; Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Anor [2016] FCCA 2499 at [11].