FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v ODYSSEY TRADING PTY LTD (No.3) | [2020] FCCA 3505 |
| Catchwords: INDUSTRIAL LAW – Ruling on pleading objections. |
| Cases cited: Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499 Beach Petroleum Nl & Anor v Johnson [1993] FCA 392 McKellar v Container Terminal Management Services Limited (1999) FCA 1101 |
| Applicant: | JIMEI WANG |
| Respondent: | ODYSSEY TRADING PTY LTD |
| File Number: | MLG 2554 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 15 December 2020 |
| Date of Last Submission: | 15 December 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 15 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Esser |
| Solicitors for the Applicant: | Esser Legal |
| Counsel for the Respondent: | Mr Levine |
| Solicitors for the Respondent: | Maciel Pizzorno & Co Lawyers And Consultants |
ORDERS
The Respondent shall file and serve a defence on or before 8 February 2021.
The Applicant shall file and serve any affidavits on or before 18 March 2021.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
The Application is listed for hearing as fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLG 2554 of 2019
| JIMEI WANG |
Applicant
And
| ODYSSEY TRADING PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This latest tranche of interlocutory disputation follows from a judgment I gave on 27 November 2020. At paragraph 18 I noted that the application to join Ms Shang shall be granted.
At paragraph 32-33 I said and I read:
It is sufficient, in my view, to say that with the exception of the matters relating to the theft charge (and the claim for $12,000 damages) the issues are delineated with sufficient clarity for the respondent to know the case it has to meet, save that the particularisation of the alleged underpayments is plainly insufficient.
Otherwise, I would, in principle, be minded to grant the application for leave to amend.
At paragraphs 37-38 I have said:
I have already referred to the fact that the applicant’s statement of claim does not particularise the underpayments in a satisfactory way. Nonetheless, the gravamen of the claim is relatively straightforward. I am going to order the applicant to prepare prior to trial a detailed schedule showing each day that the applicant said that she worked and the hours that she says that she worked. That will put the quantum issues into proper perspective.
It is apparent that the provision of the original documents is likely to give rise, given the way the parties are conducting this litigation, to enormous ancillary disputation. The provision or otherwise of these documents at this stage is not as vital as the respondents assert. It only comes into play after all of their primary arguments fail. This is at least the case for all matters on or after February 2017. I will review the question once the pleadings are formally closed and once the affidavit material that the applicant wishes to rely upon is complete.
I went on to order a repleading of the statement…
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- Case
- [2020] FCCA 3505
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant's statement of claim adequately particularised the allegations of contravention of the *Fair Work Act 2009* (Cth) and the *National Employment Standards*. Specifically, the court had to consider whether the pleading provided sufficient detail to enable the respondent to understand the case it had to meet and to respond appropriately.
Judge Burchardt applied the principles of pleading that require a party to set out material facts that constitute the cause of action. The court found that the statement of claim lacked the necessary particularity regarding the alleged contraventions, particularly concerning the specific nature of the breaches and the periods over which they allegedly occurred. Consequently, the court upheld the respondent's objections to the pleading.
Orders
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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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