Taylor v Vivacity Engineering Pty Ltd (No.2)
[2019] FCCA 2036
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYLOR v VIVACITY ENGINEERING PTY LTD (No.2) | [2019] FCCA 2036 |
| Catchwords: 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) |
| Cases cited: Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040 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 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
The respondent’s application for leave to file an amended defence in the form of the draft defence marked “MFI1” is dismissed.
The application in a case filed by the respondent on 28 February 2019 is dismissed.
By 9 August 2019 the applicant file and serve an amended application in the form or substantially in the form suggested in the reasons for judgment to which these orders give effect.
The matter is listed for further directions at 9.30 am on 22 August 2019, or at such other time and date as is convenient to the parties and to the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3214 of 2018
| PETER ANDREW TAYLOR |
Applicant
And
| VIVACITY ENGINEERING PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 June 2019 I delivered reasons for judgment (earlier reasons) in which I concluded that the claims in what in the earlier reasons I described as the “FW Act proceeding” and the “family provision proceeding” arose out of the same substratum of facts and, for that reason, constitute one matter over which this Court has jurisdiction. I also outlined how I might manage the further conduct of the matter, namely, by ordering a stay of the family provision proceeding, subject to certain undertakings being given. I made no orders to give effect to my earlier reasons, but instead I indicated I would set the matter down for directions at some later time to give the parties an opportunity to consider the earlier reasons, and to formulate a draft of the orders I should make to give effect to my earlier reasons.
The matter came before me for directions on 17 July 2019 with the parties appearing by counsel. None of the parties had formulated any draft orders; and this was due to two reasons. First, counsel appeared to have been uncertain, at least to some extent, about the effect of my conclusion that the claims made in the FW Act proceeding and the family provision proceeding constituted one matter over which this Court has jurisdiction, and also about what I indicated in the earlier reasons I would be minded to do in relation to the further conduct of the matter. Counsel for the respondent (Vivacity) suggested that the effect of my conclusion might be that the Supreme Court of New South Wales (Supreme Court) does not have jurisdiction in relation to the family provision proceeding, although counsel did say he had not considered the point. A second reason why at least Vivacity did not submit any draft orders is that, as an alternative to its application for an order that this proceeding be stayed, Vivacity claimed an order that I determine as a separate question (Separate Question) whether “there is an implied term requiring reasonable notice of termination contained in the Applicant’s contract of employment and, if so, whether the period of reasonable notice is the applicable period specified under s.117(3) of the” Fair Work Act 2009 (Cth) (FW Act), but that I did not in my earlier reasons consider Vivacity’s alternative claim.
At the directions hearing there was also some discussion about the attitude of Ms Jennifer Taylor. Counsel for Vivacity said that Ms Jennifer Taylor is no longer the defendant in the family provision proceeding because of a potential conflict of interest, although she remains the tutor of Mrs Taylor, the executrix of the will of the late Frank Taylor. I have no doubt that Ms Jennifer Taylor is aware of the FW Act proceeding and of the earlier reasons, if for no other reason than that Ms Jennifer Taylor is a director of Vivacity and, on the evidence that was before me, is actively involved in the management of Vivacity.
In these reasons for judgment I consider three things. The first is whether the jurisdiction of the Supreme Court in relation to the family provision proceeding is affected in any way because, as I have found, the claims made in the family provision proceeding and those made in the FW Act proceeding constitute a single “matter”. Second, I consider whether I should determine the Separate Question separately from, and before all other issues, that arise in the FW Act proceeding. Finally, I will consider what orders I should make, given the parties have not formulated any draft orders, and given the defendant in the family provision proceeding, whoever that might be, has apparently chosen not to make any submissions about this Court’s jurisdiction in relation to the claims made in the family provision proceeding.
Consequences of finding there is a single matter
When determining whether my conclusion that the claims made in the FW Act proceeding and the family provision proceeding constitute a single “matter” has any relevance to whether the Supreme Court has or continues to have jurisdiction in relation to the family provision proceeding, it is necessary to bring to mind the distinction between federal jurisdiction, and jurisdiction that “belongs to . . . the States”,[1] that is, State jurisdiction. Isaacs J made that distinction in Baxter v Commissioners of Taxation (NSW):[2]
“Jurisdiction” is a generic term, and signifies in this connection authority to adjudicate. State jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws; Federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws. The first is that which “belongs to” the State Courts within the meaning of s 77; the latter must be “vested in” them by Parliament.
[1] Constitution, s.77
[2] (1907) 4 CLR 1087, at page 1142. See also CGU Insurance Ltd v Blakeley [2016] HCA 2, at [24]
The distinction between federal jurisdiction and State jurisdiction in relation to a claim that is before a State court does not depend on the subject matter of the litigation that is before such court. In particular, that the subject matter of litigation in a State court might answer the description of any one of the matters identified in s.75 or s.76 of the Constitution would not by itself mean that the State court is exercising federal jurisdiction. With the exception of the original jurisdiction conferred on the High Court by s.75 of the Constitution, whether a court exercises federal jurisdiction depends on Parliament making a law under s.77 of the Constitution. That section authorises Parliament to define the jurisdiction of any federal court other than the High Court, and also to make laws “[i]nvesting any court of a State with federal jurisdiction”.[3] Parliament has made laws investing federal jurisdiction in State courts, the most general law being s.39 of the Judiciary Act 1903 (Cth) (Judiciary Act), which relevantly provides:
(1)The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
(2)The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38 . . .
[3] Constitution, s.77(iii)
In Felton v Mulligan Walsh J described the effect of s.39 of the Judiciary Act 1903 (Cth) as follows:[4]
Section 39 (1) of the Judiciary Act took away the jurisdiction of the State courts in matters in which this Court had jurisdiction. It did so by making the jurisdiction of this Court exclusive (except as provided in the section) of that of the State courts. No provision of the Act was expressed to take away the jurisdiction of the State courts in those matters in which this Court did not have original jurisdiction but in which original jurisdiction might be conferred upon it. By s.39 (2) the courts of the States were invested with federal jurisdiction in both classes of matter.
[4] (1971) 124 CLR 367, at pages 411-412
I then turn to the jurisdiction of the Supreme Court in relation to the claims made in the family provision proceeding. There are four matters to note. The first is that neither the subject matter of that proceeding nor the parties to the proceeding answer the subjects or persons identified in s.75 or s.76 of the Constitution. Mr Taylor, the applicant in the FW Act proceeding, brought the family provision proceeding under s.59 of the Succession Act 2006 (NSW) (Succession Act), a law of the State of New South Wales. Thus, by commencing the family provision proceeding Mr Taylor did not engage any federal jurisdiction that has been vested in the Supreme Court; he engaged, and only engaged, State jurisdiction.
Secondly, given, as I have found, that the claims made under the FW Act and the family provision proceedings constitute one “matter”, as that word is used in Chapter III of the Constitution, it follows that the claims made in the family provision proceeding cannot be a “matter”. The claims made in the family provision proceeding form only a part of the matter in relation to which I have held this Court has jurisdiction under s.566 of the FW Act, and which arose when Mr Taylor commenced the FW Act proceeding. The family provision proceeding that was before the Supreme Court, therefore, was not transformed into a “matter” when Mr Taylor commenced the FW Act proceeding only because, when he did commence that proceeding, there arose a single “matter” comprising the claims made in both the FW Act proceeding and the family provision proceeding.
The third matter to note is that the Supreme Court has not been deprived of its jurisdiction over the family provision proceeding only because those claims by themselves are not a “matter”, but only form part of a “matter”. Although the identification of a “matter” is essential to the engagement of federal jurisdiction, it is not a necessary element to the engagement of State jurisdiction. As Gageler J said in Burns v Corbett & Ors, “State jurisdiction is not limited to authority to adjudicate a “matter””. [5]
[5] [2018] HCA 15, at [71]. In a footnote to this statement his Honour cited Kale v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, t pages 136-137
Fourth, the Supreme Court does not have jurisdiction to grant relief under the FW Act. The FW Act confers jurisdiction on particular courts to grant relief for contraventions of the FW Act,[6] those courts being the Federal Court, this Court, and “eligible State or territory” courts.[7] The FW Act does not grant any such jurisdiction to any State or Territory Supreme Courts.[8] Further, s.4 of the Jurisdiction of Courts (Cross-Vesting Act) Act 1987 (Cth) excludes from the conferral of federal jurisdiction on State courts for which it provides any matter arising under the FW Act.[9] Thus, the Supreme Court cannot assume federal jurisdiction over the claims made under the FW Act and exercise jurisdiction over both those (federal) claims and the (non-federal) claims in the family provisions proceeding on the footing they constitute one “matter”. That is to be contrasted with the facts in Moorgate Tobacco Company Limited v Phillips Morris Limited.[10] In that case claims were made under a law of the Commonwealth which the Supreme Court had jurisdiction to entertain, and under non-federal law. The High Court held the Supreme Court exercised federal jurisdiction over the federal and the non-federal claims because the non-federal claims were not distinct from or unrelated to the claims that arose under the Commonwealth law over which the Supreme Court did have jurisdiction.
[6] FW Act, Chapter 4
[7] The expression “eligible State or territory court” is defined in s.12 of the FW Act as a District, County, or Local Court; a magistrates court; the Industrial Relations Court of South Australia; the Industrial Court of New South Wales; or any other State or Territory court that is prescribed by the regulations.
[8] Reg.1.05 of the Fair Work Regulations 2009 (Cth) has not prescribed a Supreme Court of a State or Territory.
[9] An additional mater to note is that s.4 of the Jurisdiction of Courts (Cross-Vesting Act) Act 1987 (Cth) is restricted to the vesting of jurisdiction in relation to a matter that is before the Federal Court of the Family Law Court, not the Federal Circuit Court.
[10] (1980) 145 CLR 457
Summary and conclusions
The Supreme Court has jurisdiction in relation to the claims made in the family provision proceeding; that jurisdiction was at its inception State jurisdiction, not federal jurisdiction; and the creation of a single “matter” when Mr Taylor commenced the FW Act proceeding did not deny the Supreme Court of the State jurisdiction it has over the claims made in the family provision proceeding. The result is that this Court and the Supreme Court have concurrent jurisdiction - federal jurisdiction in the case of this Court, State jurisdiction in the case of the Supreme Court - over the claims made in the family provision proceeding; but because this Court has jurisdiction over the single “matter” that comprises the claims made under both the FW Act proceeding and the family provision proceeding, it is within the power of this Court to exercise its jurisdiction over the claims made in the family provision proceeding to the exclusion of the State jurisdiction of the Supreme Court. Alternatively, for the reasons outlined in the earlier reasons, this Court may in the exercise of its discretion decline to exercise its jurisdiction over that part of the “matter” that is before it that consists of the claims Mr Taylor makes in the family provision proceeding.
Separate Question
The Separate Question is not one that arises out of the pleadings as they currently stand. It is a question that will arise if the Court grants Vivacity leave to file an amended defence in the form of the draft I have marked “MFI1”. In particular, the question is said to arise from paragraph 10 of the proposed amended defence. That paragraph responds to paragraph 10 of the statement of claim which alleges that it was an implied term of the contract between Mr Taylor and Vivacity that either party to that contract could terminate it on giving reasonable notice. Paragraph 10 of the proposed amended defence is as follows:
The Respondent denies paragraph 10 of the Applicant’s statement of claim and says further that:
(a)upon the Applicant’s commencement of employment with the Respondent, his employment was governed by, and subject to, the provisions of the Chemical Workers (State) Award of NSW 57792 1 October 1975 (Chemical Workers Award), an award of the Industrial Relations Commission of New South Wales and he was classified as a Class 2 materials Attendant therein;
(b)the applicable notice period in clause 17(i) of the Chemical Workers Award excluded the implication of a term of reasonable notice of termination of the Applicant’s employment agreement;
(c)the Applicant was employed under the same contract of employment for the duration of his employment, which was varied by agreement from time to time with respect to his duties and remuneration;
(d)to the extent that there was any variation to the Applicant’s employment agreement, or the parties entered into a new employment agreement (which is denied), during the employment relationship, an applicable award or statute prescribed the relevant period of notice of termination in respect of the Applicant’s employment thereby operating to exclude any implied term of reasonable notice of termination; and
(e)by virtue of the matters pleaded in sub-paragraphs (a) to (d), there is no entitlement to reasonable notice of termination implied by law or at all.
In his written submissions counsel for Vivacity submitted that the Separate Question constitutes a “central issue in contention” between the parties which, if resolved in favour of Vivacity, will substantially narrow the field of controversy between the parties. Vivacity offers an undertaking that, if the Court orders the trial of the Separate Question Vivacity will pay into Court an amount equal to five weeks of salary, being the amount of notice required by s.117(1) of the FW Act.
In his written submissions counsel for Mr Taylor submitted that the Court should order the determination of the Separate Question only if the utility, economy, and fairness of doing so is beyond question,[11] but it is not the case that it is beyond question that there would be utility, economy, and fairness if the Court were to decide to determine separately the Separate Question. Counsel submitted that the trial of the Separate Question will not dispose of the FW Act proceeding; Vivacity estimates that the trial of the Separate Question will occupy two days; the trial of the Separate Question is likely to give rise to significant contested factual issues, particularly because the Separate Question relies on assertions made in the proposed amended defence about unidentified variations to Mr Taylor’s employment contract and about the potential application of unidentified awards and statutes.
[11] Relying on the judgment of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board (2001) 206 CLR 1, at [16]-[17]
During oral address counsel for Mr Taylor made a more fundamental submission. He submitted that the Separate Question would arise only if I were to grant Vivacity leave to file the amended defence; but I should not grant Vivacity leave because the paragraph in the draft amended defence on which Vivacity relies as raising the Separate Question is unclear and, in any event, is based on unidentified variations to Mr Taylor’s employment contract, and on the application of unidentified awards and statutes. This raises a preliminary question, and that is whether Vivacity should be granted leave to file an amended defence in the form of MFI1. Whether I should grant such leave turns, at least in the first instance, on whether the proposed amendments comply with the relevant rules of pleading.
Should leave to amend defence be granted?
Although the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) permit the filing of a statement of claim, they do not contain rules governing pleadings. Under r.1.05(3)(b) of the FCC Rules, however, the rules of Part 16 of the Federal Court Rules 2011 (Cth) (FC Rules) identified in items 7-13 of Part 2 of Schedule 3 to the FCC Rules apply to pleadings that are filed in this Court.
The principle rule of pleading is contained in r.16.02(1)(d) of the FC Rules, which provides that a pleading must:
state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved . . .
The expression “material facts”, when used in the context of a statement of claim, are facts whose existence is “necessary for the purpose of formulating a complete cause of action”.[12] A “cause of action”, in turn, has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[13]
[12] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 quoted with approval by Goldberg J in Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591 at page 44, 152
[13] Letang v Cooper [1965] 1 QB 232 at pages 242-243
Material facts are distinguished from a number of other things.[14] One is the evidence by which material facts are to be proved. That distinction is made in r.16.02(2) of the FC Rules itself. The second thing from which material facts are distinguished are “conclusions drawn from unstated facts”.[15] This expression, however, is not to be taken literally. The rule that a pleading must state material facts, but not the evidence by which they are to be proved, necessarily means that material facts will in most cases be conclusions of fact based on evidence and subordinate facts which the applicant intends to adduce and prove at the hearing, but which the applicant must not set out in the statement of claim. The expression “conclusions drawn from unstated facts”, rather, denotes two other classes of conclusion.
[14] I here reproduce, with some omissions, what I said in Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322, at [16]-[25]
[15] Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593 at [12]
One class is conclusions that allege the legal rule or an element of the legal rule on which the applicant relies applies to a given set of facts without identifying some or all of the facts on which such conclusions are said to apply. It is not permissible to allege such conclusions without alleging the facts on which such conclusion is based. This principle was stated by Weinberg J in McKellar v Container Terminal Management Services Ltd:[16]
A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts. . . A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.
[16] [1999] FCA 1101; (1999) 165 ALR 409 at [23]
There are, however, other types of allegations that are conclusions based on underlying facts that are impermissible to allege without also identifying the facts on which they are based. This is the case with words (conclusory words) that denote a fact or facts whose precise meaning depend on a word or words that denote other facts that support the conclusion. The meaning of conclusory words, therefore, cannot be ascertained, or ascertained with sufficient certainty, without the facts that support the conclusion also being stated. Examples of conclusory words include “false”, “sham”, “purported”, “sufficient”, “reasonable”, “agree”, and “representation”. In Fair Work Ombudsman v Eastern Colour Pty Ltd Collier J held the conclusions “sham”, “purported”, and “sufficient” could not be asserted in a statement of claim without the applicant also stating the facts on which they were based.[17]
[17] [2011] FCA 803; (2011) 209 IR 263
The reason it is objectionable for a pleader to state conclusory words without also stating the facts on which such conclusions rest is not so much that conclusory words necessarily are not material facts. As Collier J noted in Eastern Colour, pleading a conclusion may in some circumstances constitute a material fact.[18] The objection is that, by pleading conclusory words without stating the underlying facts, the respondent will not be alerted, or sufficiently alerted, of the case the respondent has to meet. For that reason, such pleading is likely to “cause prejudice, embarrassment or delay in the proceeding”.[19] Here, “embarrassment”:[20]
carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense.
[18] [2011] FCA 803; (2011) 209 IR 263 at [40]
[19] FC Rules, r.16.02(2)(d)
[20] Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1997) ATPR 41-434 at [25]
In that regard, a fundamental purpose of the rules requiring the applicant to plead material facts is to notify the respondent of the facts the applicant alleges exist which the applicant claims will or may entitle the applicant to a remedy. That enables the respondent to do two things. First, it enables the respondent to assess whether, assuming the facts alleged in the statement of claim are true, the applicant will or may be entitled to the remedy the applicant claims in the statement of claim or, perhaps, to another remedy. Secondly, the respondent will be in a position to determine which of the allegations he or she accepts are true, and which he or she will contest. These purposes of the rules were recognised by Bramwell LJ in Philipps v Philipps:[21]
The object of the rules is threefold. It is that the plaintiff may state what his case is for the information of the defendant, and that the plaintiff may be tied down to it and not spring a new case on the defendant; secondly, that the defendant may be at liberty to say, that the statement is not sufficient in point of law, and to raise the point on demurrer; and thirdly, that the defendant, instead of being driven to deny everything by an ambiguous and uncertain statement involving conclusions of law as well as actual facts, and so going down to try an expensive issue, may be at liberty to single out any one statement, and to answer it.
[21] (1878) 4 QBD 127 at page 131
Two of these purposes were more recently identified by Lindgren J in Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd:[22]
The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law.
[22] [2002] FCA 1568 at [15]
Thus, the guiding principle for determining whether a conclusion that does not state the supporting facts is objectionable will depend on whether, in the circumstances of the particular case, the conclusion sufficiently notifies the respondent of the allegation that is made, and the grounds on which it is made, such as will reasonably enable the respondent to determine whether he or she should admit the allegation and, if not, to investigate and gather evidence in relation to that allegation for the purpose of the trial. That is the effect of the following passage from the judgment of Sackville J (with whom Spender and Hill JJ agreed) in Phillip Morris (Australia) Ltd v Nixon:[23]
[I]t is a well established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met… For example, in some circumstances, it may be permissible to plead a conclusion rather than the material facts underlying the conclusion…
Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached.
[23] [2000] FCA 229; (2000) 170 ALR 487 at [132]; [136]
The FC Rules also distinguish material facts from particulars of those facts.[24] This by itself suggests that a material fact may be stated with a degree of generality, provided particulars that are within the knowledge of the applicant are given that limit the generality of the allegation.
[24] FC Rules, r.16.41
It will be seen that the notions of “material facts”, “conclusory facts”, and “evidence by which the material facts are to be proved” do not denote classes of alleged facts that have clear boundaries. The distinctions are capable of being easily drawn in the case of causes of action that involve a limited number of facts, and whose elements involve relatively simple facts. A claim for the repayment of a simple debt, or a claim for the payment for services rendered, or a claim for damages for breach of contract, are examples.
I then turn to paragraph 10 of the proposed amended defence. In my opinion, it does not comply with r.16.02(1)(d) of the FC Rules:
a)Sub-paragraph (a) asserts that at the commencement of his employment with Vivacity Mr Taylor’s employment was covered by the Chemical Workers (State) Award of NSW 57792 1 October 1975 (Chemical Workers Award). This in effect asserts a conclusion that the law constituted by the Chemical Workers Award applied to the applicant at a particular time, but it does not identify the facts on which that conclusion is based. For example, whether an award covers an employment relationship depends on work the person said to be bound by the award is alleged to have been engaged to perform. Sub-paragraph (a), however, does not allege the work Mr Taylor was engaged to perform and whether such work engaged the coverage provision or provisions of the Chemical Workers Award.
b)Sub-paragraph (b) asserts an “applicable notice period” as contained in cl.17(i) of the Chemical Workers Award. The paragraph, however, does not identify the facts it is said rendered that notice period applicable; nor does it identify the facts, matters, or circumstances on which sub-paragraph (b) relies for alleging that the applicable notice period provided by the Chemical Workers Award excluded the implication of a term of reasonable notice of Mr Taylor’s employment contract.
c)Sub-paragraph (c) alleges Mr Taylor’s employment contract was varied from time to time “with respect to his duties and remuneration”, but it does not identify when the variations were made, what the variations were, or the facts on which Vivacity relies for alleging such variations occurred.
d)Sub-paragraph (d) alleges that, to the extent there was any variation to Mr Taylor’s employment agreement, “an applicable award or statute prescribed the relevant period of notice termination”, but it does not identify the award or awards or the statute or statutes it is alleged applied to Mr Taylor’s employment, nor the facts on which Vivacity relies for alleging that such awards or statutes applied to Mr Taylor’s employment, or the facts, matters, and circumstances on which Vivacity relies for alleging the awards or statutes excluded the implication of a term of reasonable notice of Mr Taylor’s employment contract.
Because paragraph 10 of the proposed amended defence does not comply with with r.16.02(1)(d) of the FC Rules, I propose not to grant Vivacity leave to file the proposed amended defence. I appreciate the proposed amended defence contains amendments to paragraph 23 of the current defence filed on 21 December 2018. These amendments, however, appear to be consequential to the amendment contained in paragraph 10 of the proposed draft amended defence, and should therefore not be allowed. The proposed draft amended defence also proposes what appears to be a minor amendment to paragraph 19(j) of the current defence, which is unrelated to the amendments contained in paragraphs 10 and 23 of the proposed amended defence. Vivacity will be at liberty, if it so elects, to apply to amend paragraph 19(j) of the current defence.
Given I propose not to grant Vivacity liberty to amend its current defence in the form of the proposed amended defence, it follows that the question whether I should order the separate determination of the Separate Question does not arise. That means I should dismiss Vivacity’s application for an order that the Court separately determine the Separate Question.
Further progress
I have already noted that the parties have not drafted any orders; and the defendant in the family provision proceeding has not engaged with the question of this Court’s jurisdiction over the claims made in the family provision proceeding. In those circumstances I consider it would be appropriate to make orders that will have the effect of joining the defendant in the family provision proceeding as a second respondent in this proceeding. I propose, therefore, to order that within 14 days from the day I pronounce my orders Mr Taylor file and serve an amended application in which he adds as a second respondent the current defendant in the family provision proceeding, and to include in that amended application the claims for relief he seeks in the statement of claim filed on 16 November 2018, the claims for relief he seeks in the family provision proceeding, and a claim for an order under s.58(2) of the Succession Act.
Mr Taylor should use the prescribed form for commencing a general federal law proceeding in this Court. He may consider modifying and completing that form as follows:
a)In the section headed “Type of application” which requires the applicant to identify the Court’s jurisdiction on which the application is based, the following may be included:
Fair Work Act 2009 (Cth); Succession Act 2006 (NSW) (based on the Court’s accrued jurisdiction - see Taylor v Vivacity Engineering Pty Ltd [2019] FCCA 1751).
b)Under the section headed “Final orders sought by applicant/s”, the following may be included:
1.The applicant seeks the relief claimed in the statement of claim filed on 16 November 2018.
2.In relation to the applicant’s claims for relief under the Succession Act 2006 (NSW) the applicant seeks:
(a) An order in favour of the applicant under s.59 of the Succession Act 2006 (NSW) for provision from the estate or notional estate of the late Frank Taylor.
(b) An order under s.58(2) of the Succession Act 2006 (NSW) that the Court otherwise order that the application under s.59 of the Succession Act 2006 (NSW) must be made not later than 12 months after the date of the death of the late Frank Taylor.
(c) Such further order or orders as may be appropriate.
(d) An order that the second respondent and/or estate of the late Frank Taylor pay the applicant’s costs.
c)Under the section headed “grounds of application”, the following may be included:
1.The applicant relies on the grounds pleaded in the statement of claim filed on 16 November 2018.
2.In relation to the applicant’s claims for relief under the Succession Act 2006 (NSW) the applicant relies on the following affidavits filed in Supreme Court of New South Wales Case Number 2018/238526:
(a) [List affidavits]
I also propose to set down the matter for a further directions hearing four weeks after I pronounce my orders. At that directions hearing I will ask the parties whether, as I suggested in the earlier reasons, I should stay the matter in this Court to the extent it relates to the claims Mr Taylor makes in the family provision proceeding. As I indicated to the parties at the directions hearing on 17 July 2019, my initial impression is that it would be logical if Mr Taylor’s claims under the FW Act and his contract of employment were determined before his claim under the Succession Act 2006 (NSW) is determined. I also indicated to the parties that I was in a position to hear Mr Taylor’s claims under the FW Act and under his employment contract before the date on which the family precision proceeding is likely to be set down for hearing in the Supreme Court. The idea would be for me to determine Mr Taylor’s claims under the FW Act and contract of employment in circumstances where the defendant in the family provision proceeding would become bound by my findings; and Mr Taylor’s claims for family provision could then be heard in the Supreme Court on the basis of those findings, thus avoiding the risk of the parties litigating twice matters that will be the subject of my findings.
I should make it clear that, at least at this stage, the only stay I have in mind granting is a stay in this Court. I do not have in mind, at least not at this stage, making an order restraining Mr Taylor from proceeding with his claim for family provision in the Supreme Court. That will mean that the parties in the Supreme Court proceeding would be at liberty to take such steps as may be necessary to have Mr Taylor’s claim in that proceeding ready for trial in the hope or expectation that, by the time the claim is ready to be given a hearing date by the Supreme Court, I will have heard and determined the claims Mr Taylor makes under the FW Act and under his contract of employment.
Disposition
I propose to make the following orders:
a)The respondent’s application for leave to file an amended defence in the form of the draft defence marked “MFI1” is dismissed.
b)The application in a case filed by the respondent on 28 February 2019 is dismissed.
c)By 9 August 2019 the applicant file and serve an amended application in form or substantially in the form suggested in these reasons for judgment
d)The matter is listed for further directions at 9.30 am on 22 August 2019, or at such other time and date as is convenient to the parties and to the Court.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 July 2019
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