FEDERAL COURT OF AUSTRALIA
Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644
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Details
- Case
- [2019] FCA 1644
- Decision Date
CaseChat Overview and Summary
The case of Turner v Tesa Mining (NSW) Pty Limited involved two proceedings: Turner v Tesa Mining (NSW) Pty Limited (TESA proceeding) and Turner v Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Chandler Macleod proceeding). The applicants, Mr Turner and Augusta Ventures Limited, sought security for costs against Augusta Ventures, a funder of the proceedings. The dispute centred around the entitlement of employees who were allegedly treated as casual employees but were, in fact, employed on a full-time basis. The applicants sought compensation and pecuniary penalties for the respondents' failure to provide the employees with their entitlements.
The central legal issue was whether the court had the power to order security for costs directly against a funder of the proceedings, Augusta Ventures. This issue was complicated by the "no costs" jurisdiction applicable to class actions arising under the Fair Work Act 2009 (Cth). The court had to determine whether the statutory "no costs" regime precluded the award of security for costs against a funder and whether discretionary factors could be considered in such an application. Additionally, the court examined the power to award security under both the Federal Court of Australia Act 1976 (Cth) and the implied power in equity.
The court found that it had the power to award security for costs against Augusta Ventures directly. It held that the statutory "no costs" regime did not preclude the award of security for costs against a funder and that discretionary factors could be considered in such an application. The court concluded that it was both within its power and appropriate to make an order for security for costs directly against the funder. The court emphasised the importance of ensuring that the applicants had access to justice and were not deterred from proceeding with the proceedings due to financial constraints. The court also considered the asymmetry of the parties and the need to balance the rights of the applicants with the interests of the funder.
The court ordered that the proceedings be listed for a case management hearing to determine the manner and form of the provision of security for costs by Augusta Ventures Limited and to resolve any issue in relation to the costs of the application for security. This order was made in accordance with Rule 39.32 of the Federal Court Rules 2011.
The central legal issue was whether the court had the power to order security for costs directly against a funder of the proceedings, Augusta Ventures. This issue was complicated by the "no costs" jurisdiction applicable to class actions arising under the Fair Work Act 2009 (Cth). The court had to determine whether the statutory "no costs" regime precluded the award of security for costs against a funder and whether discretionary factors could be considered in such an application. Additionally, the court examined the power to award security under both the Federal Court of Australia Act 1976 (Cth) and the implied power in equity.
The court found that it had the power to award security for costs against Augusta Ventures directly. It held that the statutory "no costs" regime did not preclude the award of security for costs against a funder and that discretionary factors could be considered in such an application. The court concluded that it was both within its power and appropriate to make an order for security for costs directly against the funder. The court emphasised the importance of ensuring that the applicants had access to justice and were not deterred from proceeding with the proceedings due to financial constraints. The court also considered the asymmetry of the parties and the need to balance the rights of the applicants with the interests of the funder.
The court ordered that the proceedings be listed for a case management hearing to determine the manner and form of the provision of security for costs by Augusta Ventures Limited and to resolve any issue in relation to the costs of the application for security. This order was made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The proceeding be listed for a case management hearing to determine the manner and form of the provision of security for costs by Augusta Ventures Limited and to resolve any issue in relation to the costs of the application for security.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In explaining why I have concluded it is both within power and appropriate to make an order for security for costs against the Funder directly, I will address the issues in the following order: ·B A Brief Background and the Present Applications ·C Funders and Security: the Law C.1 Costs against Funders C.2 Funders and SecurityC.3 The Issue of Power·D Discretionary Matters D.1 Discretion GenerallyD.2 Nature of Jurisdiction ContentionD.3 Asymmetry ContentionD.4 Other Discretionary Matters·E OrdersB A BRIEF BACKGROUND AND THE PRESENT APPLICATIONS The first proceeding is ACD 46 of 2018, Turner v Tesa Mining (NSW) Pty Limited (TESA proceeding). Mr Turner commenced the TESA proceeding, on behalf of persons who: (a) worked at the Mount Arthur Coal Mine and who were employed by the first and/or second respondent, at any time during the period 7 December 2012 to 27 September 2014; (b) were covered by the TESA Group – Enterprise Agreement 2012 (TESA agreement); (c) worked in accordance with the “Mine Roster” as alleged in the pleadings; and (d) were treated as casual employees by the first and/or second respondent. It is alleged that the group members were engaged as “other than casual” employees within the meaning of s 86 of the FW Act, with some being permanent full time employees, and others being permanent part time employees within the meaning of the TESA agreement. Mr Turner further alleges that on or about 22 June 2014, the second respondent succeeded the first respondent as the employer of the employees at the mine. It is then said that in September 2014, the employees’ employment was terminated on the grounds of redundancy, and the respondents failed to provide the employees with any entitlements provided for in the TESA agreement. Orders are sought that the respondents are liable to pay the employees compensation in respect of the loss suffered because the entitlements were not paid, and pecuniary penalties. The second proceeding is ACD 47 of 2018, Turner v Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Chandler Macleod proceeding). Mr Turner commenced the Chandler Macleod proceeding on behalf of persons who: (a) were employed by the first respondent to work at the Mount Arthur Coal Mine at any time in the six years prior to 19 December 2018; and (b) were either “coal mining employees” within the meaning of the Black Coal Mining Industry Award 2010 (Award) at any time in that period before 10 June 2015; and/or were a party to and bound by the Chandler Macleod Northern District of NSW Black Coal Mining Agreement 2015 (Chandler Macleod agreement) at any time during the period 11 June 2015 and 19 December 2018; and (c) during the course of such employment, worked in accordance with the “roster system” alleged in the pleadings; (d) and during the course of such employment the first respondent described and treated them for the purpose of the Chandler Macleod agreement as casual employees. Mr Turner claims that the manner in which he was employed, including how he was allocated on the roster system, meant that he was a full time employee for the purposes of the Chandler Macleod agreement, and the Award. Mr Turner further claims that during the course of his employment, he was not provided with all of his entitlements, including accident pay entitlements. In addition, Mr Turner claims that the third respondent made representations that the employees were casual employees, and were not entitled to any entitlements, amounting to misleading representations about the workplace rights of the employees. Orders are sought for compensation, and pecuniary penalties.
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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