Watson v Greenwoods & Herbert Smith Freehills Pty Ltd (No 2)

[2023] FCAFC 169

FEDERAL COURT OF AUSTRALIA

Watson v Greenwoods & Herbert Smith Freehills Pty Ltd (No 2) [2023] FCAFC 169

File number:

NSD 288 of 2022

Judgment of:

MOSHINSKY, ABRAHAM AND RAPER JJ

Date of judgment:

18 October 2023

Catchwords:

PRACTICE AND PROCEDURE – form of orders to be made following judgment of the Full Court

Legislation:

Corporations Act 2001 (Cth)

Taxation Administration Act 1953 (Cth)

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

6

Date of last submissions:

13 September 2023

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mr M Darke SC with Ms Z Heger

Solicitor for the Applicant:

Assured Legal Solutions

Counsel for the First Respondent:

Mr M Hodge KC with Ms JE McKenzie

Solicitor for the First Respondent:

Kennedys (Australasia) Partnership

Counsel for the Second Respondent:

Ms E Collins SC with Mr B Lim

Solicitor for the Second Respondent:

King & Wood Mallesons

ORDERS

NSD 288 of 2022

BETWEEN:

ANTHONY JOHN WATSON
Applicant

AND:

GREENWOODS & HERBERT SMITH FREEHILLS PTY LTD
First Respondent

LENDLEASE CORPORATION LTD
Second Respondent

ORDER MADE BY:	MOSHINSKY, ABRAHAM AND RAPER JJ
DATE OF ORDER:	18 OCTOBER 2023

THE COURT ORDERS THAT:

1.The following paragraphs of the amended statement of claim filed on 25 July 2022, be struck out:

(a)57A-57U;

(b)57V;

(c)71-77;

(d)78-81;

(e)82-86;

(f)86A to 86L;

(g)91(b) and (c) (as against each respondent); and

(h)91(ea), 91(eb) and 91(ec) (as against each respondent).

2.There be judgment for the respondents in respect of the applicant’s claim insofar as it is based on Pt 9.4AAA of the Corporations Act 2001 (Cth) as in force on and after 1 July 2019 or Pt IVD of the Taxation Administration Act 1953 (Cth) and that the following paragraphs of the amended originating application filed on 25 July 2022 be dismissed:

(a)2 and 3;

(b)5B and 5C;

(c)10 and 11; and

(d)13B and 13C.

3.The proceeding be listed for a case management hearing before the docket judge on a date to be fixed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. These reasons for judgment deal with consequential orders to be made following the judgment of the Full Court delivered on 30 August 2023: Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132. These reasons should be read together with those reasons.

2. Pursuant to paragraph 3 of the orders made on 30 August 2023, the parties have filed proposed minutes of orders and short outlines of submissions.  The respondents have filed a joint submission.

3. There is a large measure of agreement between the parties.  It is agreed that the following consequential orders should be made to give effect to the Full Court’s reasons:

   (a)that the following paragraphs of the amended statement of claim be struck out: paragraphs 57A-57U; 71-77; 78-81; 82-86; 86A-86L; 91(b) and (c) (as against each respondent); 91(ea), 91(eb) and 91(ec) (as against each respondent);

   (b)that there be judgment for the respondents in respect of the applicant’s claim insofar as it is based on Pt 9.4AAA of the Corporations Act 2001 (Cth) as in force on and after 1 July 2019 or Pt IVD of the Taxation Administration Act 1953 (Cth) and that the following paragraphs of the amended originating application filed on 25 July 2022 be dismissed: 2 and 3; 5B and 5C; 10 and 11; and 13B and 13C; and

   (c)that the proceeding be listed for a case management hearing before the docket judge.

4. A number of matters were not agreed between the parties.  Those matters, and our resolution of them, are as follows:

   (a)Paragraph 57V of the amended statement of claim – the respondents’ proposed orders have this paragraph struck out, but the applicant’s proposed orders do not.  The applicant does not make any submissions about this.  It appears to be of the same character as paragraphs 57A to 57U, which it is agreed should be struck out.  Hence, we consider that this paragraph should be struck out.

   (b)Paragraph 92 of the amended statement of claim – the applicant submits that this should not be struck out as he wants to preserve the ability to argue that the costs provisions of the new legislation have application (eg, to the costs of the proceedings to date).  We consider that these paragraphs should not be struck out.  This will preserve the applicant’s ability to make that argument later in the proceeding.

   (c)The “Note” proposed by the applicant – the applicant proposes that the orders contain a Note stating that the striking out of paragraphs 57A to 57U is without prejudice to his ability to rely on the same matters in support of a new pleading that would be based on the former provisions.  We do not consider that the Note should be included.  This is a matter that can be addressed in due course if the applicant makes an application for leave to amend his pleading to include such a claim.  The Note might suggest that he should be given leave to make such a claim.  In other words, it may pre-empt the application for leave to amend.  It is sufficient that we note in these reasons that, although paragraphs 57A to 57U are to be struck out, the applicant has foreshadowed that he may seek leave to amend to include a claim based on the former provisions that relies on the facts and matters that are the subject of those paragraphs.  It will be a matter for the docket judge to decide in due course whether leave to amend should be granted (if such an application is made).

5. We will make orders reflecting the parties’ agreement as set out in [3] above and reflecting the resolution of the points of disagreement as set out in [4] above.

6. Although the parties both proposed that orders be made for the filing of a further amended originating application and a further amended statement of claim to reflect the dismissal of certain claims and the striking-out of certain paragraphs, we consider it preferable for these matters to be dealt with by the docket judge in due course, given that the applicant has foreshadowed an application for leave to amend.  It is sufficient to make an order that the proceeding be listed for a case management hearing before the docket judge on a date to be fixed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Abraham and Raper.

Associate:

Dated:       18 October 2023