WANG v Odyssey Trading Pty Ltd (No.3) - [2020] FCCA 3505

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3505
Decision Date: 15 December 2020

CaseChat Overview and Summary

The proceeding involved a dispute between the applicant, Mr. Wang, and the respondent, Odyssey Trading Pty Ltd. The applicant sought to bring proceedings in the Federal Court of Australia, but the respondent raised objections to the form of the applicant's pleading. Judge Burchardt of the Federal Court was tasked with determining these objections.

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