Vine v Diepeveen

[2015] FCCA 1807

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINE v DIEPEVEEN & ORS [2015] FCCA 1807

Catchwords:
PRACTICE AND PROCEDURE

Legislation:  

Fair Work Act 2009, ss.368, 501(1)
Federal Circuit Court Rules2001, rr.11.01, 11.02

Cases cited: 

Masters v Cameron (1954) 91 CLR 353

Applicant: SHIRLEY VINE

First Respondent: STUART CORNELIS DIEPEVEEN

Second Respondent: PETER TUCK

Third Respondent: JOHAN HENDRIK BRITS

Fourth Respondent: THE ELECTRICAL AND COMMUNICATION ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS)

File Number: PEG 131 of 2014

Judgment of: Judge Jarrett

Hearing date: 27 January 2015

Date of Last Submission: 27 January 2015

Delivered at: Brisbane

Delivered on: 3 February 2015

REPRESENTATION

The Applicant appearing on her own behalf

Solicitor for the Respondents: Mr White

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The balance of the application filed on 18 August, 2014 is dismissed.

2. The statement of claim filed by the applicant on 24 August 2014 shall, subject to any further applications to amend, be taken to be her statement of claim for the purposes of these proceedings.

3. The respondent shall no later than 4.00 p.m. on 9 March 2015 file and serve a defence to the statement of claim.

4. The applicant file and serve a reply, if any, by no later than 4.00 p.m. on 23 March 2015.

5. The application be adjourned to 30 March 2015 at 11.30 a.m. (AEST) for directions in the Federal Circuit Court of Australia sitting at Brisbane.

6. The parties have leave to appear by telephone on the next occasion.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

PEG 131 of 2014

SHIRLEY VINE

Applicant

And

STUART CORNELIS DIEPEVEEN

First Respondent

PETER TUCK

Second Respondent

JOHAN HENDRIK BRITS

Third Respondent

THE ELECTRICAL AND COMMUNICATION ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS)

Fourth Respondent

REASONS FOR JUDGMENT

1. There are before me a number of applications for determination. 

2. The first in time is an application by the applicant to join certain parties to these proceedings.  The application for the joinder was filed on 18 August, 2014.  By that application, the applicant sought that certain respondents be removed from the proceedings and other respondents be added.  One of the respondents to be added, the Electrical and Communications Association of Western Australian (Union of Employers) was, or is, the name by which one of the respondents to be removed from the proceedings was, or is now, known.  There was no opposition to the joinder of that respondent.

3. The other respondents fall into two categories.  The first is the human resources manager for the first respondent, Ms Jaye Congues.  The second category of persons to be joined is the members of the executive of the first respondent. 

4. There is no doubt that this Court has a discretionary power to order the joinder of parties in certain circumstances. The Court might order the joinder of parties pursuant to rule 11.01 of the Federal Circuit Court Rules2001 if those parties are said to be necessary parties to the proceedings.

5. The applicant did not put her case before me on the basis that they were necessary parties to the proceedings.  What is meant by that rule and what is meant by the expression “necessary parties to the proceedings” is simply that those parties should be joined to the proceedings so that the Court might properly grant relief in the proceedings.  It is often said that where the proceedings directly affect a person’s rights or entitlements or a person’s liabilities then those persons are necessary parties to the proceedings.  These parties do not fall into that category.

6. The Court has a discretion to otherwise join the parties under rule 11.02 of the Federal Circuit Court Rules. The circumstances in which the Court might join parties under that rule is largely unfettered but the authorities demonstrate that there needs to be the demonstration by the applicant for joinder of a prima facie case against the respondents sought to be joined. That is where the applicant in this case falls down.

7. I directed that Ms Vine file a statement of claim that she proposed to rely upon against the proposed respondents. She filed a document titled Statement of Claim – Joinders on 7 October, 2014. In that document she has pleaded a number of allegations against the proposed respondents. In support of her application for joinder she relies on some evidence from herself, Raymond Charles Harris and Sharon Lee Holt. The evidence does not establish, or go anywhere near establishing, the allegations that she has included in the Statement of Claim – Joinders against the proposed respondents. The evidence that she has filed does not establish that any of the proposed respondents were involved in, as that phrase is defined in s.550(1) of the Fair Work Act, the contraventions that she alleges in her Statement of Claim – Joinders. The Statement of Claim – Joinders filed on 7 October 2014 pleads a number of facts against the proposed respondent Congues but ultimately, there is no evidence that supports those facts.

8. Whilst I am cognisant that at the moment this case has not progressed beyond the close of pleadings, given that the applicant is applying to join more parties to the proceedings, she must comply with the requirements of the Rules and, as I have indicated, that requires the demonstration of a prima facie case. There is no prima facie case. Even more so with respect to the members of the executive, there is simply no evidence that would suggest that the members of the executive were knowingly concerned in the contraventions or were involved in the contraventions as required by s.550(1) of the Fair Work Act.

9. In those circumstances, the application for joinder of more respondents to the proceedings will be dismissed.

10. The second application to deal with is the application of the respondents to have these proceedings dismissed.  That application has been argued before me on the basis of certain material relied upon by both the respondents and the applicant.  Thereafter, there has been a subsequent application filed at the very conclusion of last year by the respondents seeking leave to rely on further evidence.  In the result, the view that I take is that the second application is neither here nor there because to determine the application that the respondents wish determined will require a trial of the proceedings, or at least a trial of that particular issue which they wish to agitate.

11. The applicant’s case is one for compensation and the imposition of pecuniary penalties for breaches of the Fair Work Act. She alleges she was employed by the first respondent and that the first respondent took adverse action against her in breach of the general protection provisions of the Fair Work Act. The factual matrix behind her claim is relatively complex. She claims accessorial liability in respect of some of the respondents that remain in the proceedings but I think her claim is also that those respondents that remain in the proceedings are also primarily responsible to her for contraventions of the Act.

12. The application that she brought in this Court was consequent upon the issue of a s.368 certificate by Fair Work Australia which certified that an application that she had made to that body was not capable of resolution.  The material demonstrates that it is uncontroversial that there were three conciliation conferences in Fair Work Australia in respect of the applicant’s claim.  The first one did not proceed because the applicant and her lawyer thought that it might happen by telephone and so they did not go to the Commission’s offices.  That conference was abandoned.

13. The second conference, which took place on or about 15 October, 2013 resulted, it is said by the respondents, in settlement of the dispute.  The applicant, however, takes a different view and consequently, the Commission convened a further conference in 2014 after which it issued the s.368 certificate to which I have already referred.  The respondents say that the applicant’s case has been compromised and they are able to demonstrate an accord and satisfaction which is a complete answer for the applicant’s claim in this Court. 

14. The applicant’s response seems to be this – I say “seems to be” because it’s not entirely clear.  She seems to accept that there was an agreement reached at the conference.  The agreement was not reduced to writing at the conference and was subject to the completion of a deed of settlement after the conference terminated.  The respondents argue that that it is a second category case insofar as the Masters v Cameron (1954) 91 CLR 353 categorisation of agreements is concerned. That is to say, there is a binding agreement between the parties subject only to the execution of a formal deed setting out the terms of the agreement. It is not clear whether the applicant suggests that that is, in fact, the position or whether there was no agreement, or whether there was an agreement but it was nothing more than an agreement to agree.

15. The indications in her pleading, her statement of claim and some of the other documents that she has filed in the case tend toward the former rather than the latter.  But she is representing herself and so the position is not particularly clear.  In any event, she says that if there was an agreement, the agreement is one which is either liable to be set aside or which she has, in fact, rescinded through conduct.  She claims that the agreement is able to be vitiated because it was entered into under duress, the duress being duress exerted by the Fair Work Commissioner on her lawyer and thereby onto her.

16. The argument is a very thin one.  The argument is one which, on its face, does not have very much traction.  But those matters, whether there is an accord and satisfaction, the nature of the agreement that was struck at the conciliation conference and the circumstances which led to the making of the agreement, if one was made, are all matters which are matters of fact.  Some of the facts, indeed many of the facts, are in dispute having regard to the affidavits of the applicant and the affidavit of the solicitor for the respondents that attended the second conciliation conference and so to resolve those issues of fact will be necessary before there can be a resolution of this particular issue.

17. In those circumstances, I intend to make the following directions:

ORDERS DELIVERED

1. It is necessary for the defence of accord and satisfaction to be properly pleaded before there can be a determination at a trial about that issue.  I intend to set the issue of accord and satisfaction and the associated issues about the circumstances in which the agreement was entered into down for separate determination but I do not intend to fix a trial date until the pleadings have closed in the matter.  It may be that the applicant wishes to plead a reply to the defence.  If that is to occur, it should occur no later than 4 pm on 23 March, 2015.  I intend thereafter to conduct a further directions hearing in the matter on Monday 30 March at half past nine for the purposes of fixing a date for the hearing and determination of the separate issue.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 February, 2015.

Associate: 

Date:     9 July 2015