FEDERAL COURT OF AUSTRALIA
Soukhodoev v SG Fleet Australia Pty Ltd [2023] FCA 1672
File number(s): NSD 758 of 2022
NSD 759 of 2022Judgment of: SHARIFF J Date of judgment: 20 December 2023 Date of publication of reasons: 2 February 2024 Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – accessorial liability – failure to consult or inadequate consultation – adverse action – misrepresentation – knowingly false or reckless representation – disability discrimination – estoppel by convention – whether any reasonable prospects of success – whether to allow strikeout and repleading – whether to allow adjournment for purposes of repleading – application for summary dismissal partially successful – costs reserved Legislation: Fair Work Act 2009 (Cth) ss 45, 340, 341, 345, 351, 550
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court of Australia Rules 2011 (Cth) r 26.01
Clerks Private Sector Award 2020 cl 38
Cases cited: Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australia Securities and Investment Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; (2018) 282 IR 86
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Hu [2019] FCAFC 133; (2019) 289 IR 240
GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50
General Steel Industries v Commissioner of Railways (1964) 112 CLR 125
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 73 Date of last submission/s: 20 December 2023 Date of hearing: 18, 20 December 2023 Solicitor for the Applicants: Mr N Weinberger of Weinberger Lawyers Counsel for the Fourth Respondent: Mr S Meehan SC and Mr D Lloyd Solicitor for the Fourth Respondent: Hall & Wilcox ORDERS
NSD 758 of 2022
NSD 759 of 2022BETWEEN: VIKTOR SOUKHODOEV
First Applicant
NATALIA SOUKHODOEVA
Second Applicant
AND: SG FLEET AUSTRALIA PTY LTD ACN 003 429 356
First Respondent (and others named in the Schedule)
ORDER MADE BY:
SHARIFF J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), the following claims pleaded by the applicant in the Amended Statement of Claim filed on 28 November 2023 (ASOC) against the Fourth Respondent be summarily dismissed:
(a)the claim and cause of action that the Fourth Respondent was involved in and therefore an accessory to an alleged contravention of s 351 of the Fair Work Act 2009 (Cth) (FW Act) pursuant to s 550 of the FW Act as constituted by the pleadings in paragraphs 164, 169 and 186 of the ASOC;
(b)the claim and cause of action asserting an…
Keep reading for free
Create a free CaseChat account to read Soukhodoev v SG Fleet Australia Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] FCA 1672
- Decision Date
CaseChat Overview and Summary
The court had to decide whether certain claims against Ms Davis had reasonable prospects of success. Ms Davis argued that to establish accessorial liability, it must be shown that there was a practical connection between her and SG Fleet’s alleged contravention of the consultation terms of the Award, together with knowledge on her part of the essential elements of the contravention. The applicants contended that Ms Davis was involved in the consultation process and that there were other matters that warranted further investigation. The court considered the evidence and noted that there was a contest about whether Ms Davis was involved in the process of consultation and, if she was, the extent of her involvement.
The court concluded that the applicants had not established any reasonable prospects of success in the claims that were subject to the application for summary dismissal. The court found that the applicants' claim at its highest was not that SG Fleet had not consulted at all, but was a complaint about the sufficiency of that consultation. The court also found that there was no evidence that it was Ms Davis’ responsibility or role to engage in consultation on behalf of SG Fleet. The court dismissed the claims against Ms Davis as specified and ordered the applicants to file a marked-up version of the Amended Statement of Claim by a certain date. The court also dismissed Ms Davis’ summary dismissal application otherwise and reserved costs.
Orders
Orders of the court
1. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), the following claims pleaded by the applicant in the Amended Statement of Claim filed on 28 November 2023 (ASOC) against the Fourth Respondent be summarily dismissed:
(a) the claim and cause of action that the Fourth Respondent was involved in and therefore an accessory to an alleged contravention of s 351 of the Fair Work Act 2009 (Cth) (FW Act) pursuant to s 550 of the FW Act as constituted by the pleadings in paragraphs 164, 169 and 186 of the ASOC;
(b) the claim and cause of action asserting an estoppel constituted by the pleading in paragraph 49 of the ASOC as against the Fourth Respondent;
(c) any part of all claims and causes of action against the Fourth Respondent pleaded in paragraph 169 of the ASOC to the extent that they assert liability on the basis that she “ought to have known” the matters pleaded against her to propound a case of accessorial liability under s 550 of the FW Act; and
(d) the claim and cause of action that the Fourth Respondent “knowingly” made a false or misleading representation(s) in contravention of sections 345 and 550 of the FW Act as constituted by the pleadings in paragraphs 165, 169 and 185 of the ASOC.
2. The applicant file and serve a marked-up version of the ASOC to reflect the orders made in Order 1, by 31 January 2024. This version of the ASOC will include a notation to the effect that the version of the ASOC indicates the claims that have been summarily dismissed in accordance with Order 1.
3. The Fourth Respondent’s summary dismissal application filed on 17 October 2023 be otherwise dismissed.
4. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As Ms Davis did not make an application to strike out any part of the ASOC and the applicants made no application to replead the ASOC, they are not matters I need to decide. CONSIDERATION The Consultation Claim The first claim made against Ms Davis is that she was an accessory to SG Fleet’s contravention of the consultation obligations contained in the Award. Ms Davis accepts that the Award applied to the employment of the applicants and contained an obligation to consult with them if the conditions giving rise to that obligation existed. In order to narrow the issue in dispute, Ms Davis accepted for the purpose of the application that it was unnecessary for it to be established that she had knowledge of the particular Award, the clause of that Award pertaining to consultation or its specific terms. However, Ms Davis contended that in order to establish accessorial liability, it must be shown that there was a practical connection between her and SG Fleet’s alleged contravention of the consultation terms of the Award, together with knowledge on her part of the essential elements of the contravention: see EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; (2018) 282 IR 86; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365; Fair Work Ombudsman v Hu [2019] FCAFC 133; (2019) 289 IR 240. The applicants did not dispute these principles. The applicants also accepted that they would need to establish that Ms Davis had actual knowledge of the essential ingredients of the contravention. In this regard, the applicants relied upon Devine Marine at [177] where it was stated that actual rather than imputed knowledge is required. In relation to the consultation claim, Ms Davis contended that the applicants’ claim at its highest was not that SG Fleet had not consulted at all, but was a complaint about the sufficiency of that consultation. Ms Davis contended that there was no evidence that it was her responsibility or role to engage in consultation on behalf of SG Fleet pursuant to cl 38 of the Award, if in fact that clause was engaged. In support of these contentions, Ms Davis pointed to the evidence that she had filed to date wherein she deposes that she did not have any involvement in the process of consultation in relation to the matters that are impugned by the applicants. For their part, the applicants contended that Ms Davis’ evidence (including her denials) is in issue and is to be tested during cross-examination. The applicants pointed to evidence which they submitted demonstrated that Ms Davis was involved in the consultation process. As noted above, whilst I have had regard to the evidence, all I can conclude at this stage is that there is a contest about whether Ms Davis was involved in the process of consultation and, if she was, the extent of her involvement. The applicants also contended that there were other matters that warranted further investigation. I do not know what this submission means. As I raised with Mr Weinberger, if it means that discovery will be sought on a case that is not pleaded, more would need to be done.