Taylor v Vivacity Engineering Pty Ltd (No.2)

Case [2019] FCCA 2036


FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR v VIVACITY ENGINEERING PTY LTD (No.2) [2019] FCCA 2036

Catchwords:
INDUSTRIAL LAW – COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – Federal Circuit Court has jurisdiction over “matter” that includes family provision claim pending in the Supreme Court of New South Wales – whether in those circumstances the Supreme Court has jurisdiction in relation to the family provision claim – Supreme Court retains State jurisdiction in relation to the family provision claim concurrently with the federal jurisdiction the Federal Circuit Court has in relation to the “matter” that includes the family provision claim.

PRACTICE AND PROCEDURE – Application for determination of separate question – separate question said to arise from proposed amendment to defence – whether leave should be granted to amend defence – whether proposed amendments comply with rules of pleading – application to amend defence not granted.

Legislation:

Chemical Workers (State) Award 1975, cl.17(i)
Constitution, ss.75, 76, 77
Fair Work Act 2009 (Cth), ss.12, 117, 566
Fair Work Regulations 2009 (Cth), reg.1.05
Federal Circuit Court Rules 2001 (Cth), r.1.05(3)(b)
Federal Court Rules 2011 (Cth), rr.16.02(1)(d), 16.02(2), 16.14
Judiciary Act 1903 (Cth) s.39
Jurisdiction of Courts (Cross-Vesting Act) Act 1987 (Cth), s.4
Succession Act 2006 (NSW), ss.58(2), 59

Cases cited:

Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040
Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568

Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429

Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087

Bruce v Oldhams Press Ltd [1936] 1 KB 697

Burns v Corbett & Ors [2018] HCA 15

Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593
Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322

Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803

Felton v Mulligan (1971) 124 CLR 367

Letang v Cooper [1965] 1 QB 232

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101

Moorgate Tobacco Company Limited v Phillips Morris Limited (1980) 145 CLR 457

Phillip Morris (Australia) Ltd v Nixon [2000] FCA 22

Philipps v Philipps (1878) 4 QBD 127

Tepko Pty Ltd v Water Board (2001) 206 CLR 1

Applicant: PETER ANDREW TAYLOR
Respondent: VIVACITY ENGINEERING PTY LTD
File Number: SYG 3214 of 2018
Judgment of: Judge Manousaridis
Hearing date: 17 July 2019
Date of Last Submission: 17 July 2019
Delivered at: Sydney
Delivered on: 26 July 2019

REPRESENTATION

Counsel for the Applicant: Mr T Kane
Solicitors for the Applicant: Argyle Lawyers Pty Ltd
Counsel for the Respondent: Mr M Seck
Solicitors for the Respondent: Hall & Wilcox

ORDERS

  1. The respondent’s application for leave to file an amended defence in the form of the draft defence marked “MFI1” is dismissed.

  2. The application in a case filed by the respondent on 28…

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Details
AGLC
Taylor v Vivacity Engineering Pty Ltd (No.2) [2019] FCCA 2036
Case
[2019] FCCA 2036
Decision Date

CaseChat Overview and Summary

The parties involved were Taylor and Vivacity Engineering Pty Ltd. The dispute concerned the jurisdiction of the Federal Circuit Court and the Supreme Court of New South Wales in relation to a family provision claim. The matter came before Judge Manousaridis of the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Federal Circuit Court possessed jurisdiction over a "matter" that encompassed a family provision claim already pending in the Supreme Court of New South Wales. A secondary issue arose concerning an application to amend the defence, specifically whether leave should be granted for proposed amendments that were alleged to give rise to a separate question.

Judge Manousaridis determined that the Federal Circuit Court did indeed have jurisdiction over the "matter" which included the family provision claim. Crucially, the court held that the Supreme Court of New South Wales retained its State jurisdiction in relation to the family provision claim concurrently with the federal jurisdiction exercised by the Federal Circuit Court. Regarding the application to amend the defence, the court found that the proposed amendments did not comply with the rules of pleading and therefore refused leave to amend.

Orders

Orders of the court

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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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