FEDERAL COURT OF AUSTRALIA
White v UGL Operations and Maintenance Pty Ltd [2021] FCA 587
File number: WAD 41 of 2021 Judgment of: COLVIN J Date of judgment: 2 June 2021 Catchwords: PRACTICE AND PROCEDURE - representative proceeding - where unions entered into litigation funding agreement for representative proceedings - where litigation funding agreement provided to respondent - where respondent foreshadows an application against unions under s 1324 of Corporations Act 2001 (Cth) - whether respondent be released from implied undertaking not to use litigation funding agreement other than for purposes of this proceeding - whether good reason demonstrated Legislation: Corporations Act 2001 (Cth) s 1324
Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) Part VIA
Federal Court Rules 2011 (Cth)
Cases cited: Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202
Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; (2009) 180 FCR 11
Carna Group Pty Ltd v Griffin Coal Mining Company [2019] FCA 1276
Frigger v Trenfield (No 5) [2020] FCA 827
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
McDonnell and East Ltd v McGregor (1936) 56 CLR 50
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 18 Date of hearing: 1 June 2021 Counsel for the Applicant: Ms L Saunders Solicitor for the Applicant: Eureka Lawyers Counsel for the Respondent: Mr Y Sharriff SC with Ms C Trahanas Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS
WAD 41 of 2021 BETWEEN: BRAD MATTHEW WHITE
Applicant
AND: UGL OPERATIONS AND MAINTENANCE PTY LTD (ACN 114 888 201)
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
2 JUNE 2021
THE COURT ORDERS THAT:
1.In respect of the 'UGL (Alcoa) Class Action Funding Agreement' dated 21 December 2020 and disclosed by the applicant on 6 April 2021 in accordance with the Class Actions Practice Note (GPN-CA) dated 20 December 2019, the respondent be released from the implied undertaking that this document only be used for the purpose for which it was disclosed such that the respondent is permitted to use the document to commence and conduct proceedings under s 1324 of the Corporations Act 2001 (Cth) in the terms set out in its interlocutory application dated 6 May 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Mr Brad White claims to have been a casual employee of UGL Operations and Maintenance Pty Ltd (UGL) between November 2016 and March 2019. He says that he worked at the Wagerup operations of Alcoa of Australia Ltd as a welder. He claims that under the applicable enterprise agreement he was entitled to payment at rates above his ordinary rate of pay when working overtime. He says that the pay slips provided to him should…
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- Case
- [2021] FCA 587
- Decision Date
CaseChat Overview and Summary
The court was required to determine if there was good reason for UGL to use the litigation funding agreement for purposes other than the representative proceeding. The court considered the terms of the funding agreement, the purpose for which it was disclosed, and the potential impact on the proceeding and the parties involved. The court had to weigh the interests of the unions, UGL, and the broader public interest in the administration of justice.
The court concluded that UGL should be released from the implied undertaking that the funding agreement be used solely for the representative proceeding. The court found that UGL had demonstrated good reason to use the funding agreement for other proceedings. The court noted that allowing UGL to use the funding agreement for other proceedings would not prejudice the unions or the proceeding. The court considered the potential benefits of UGL using the funding agreement for other proceedings, such as resolving disputes and promoting efficient use of resources.
The court ordered that UGL be released from the implied undertaking that the 'UGL (Alcoa) Class Action Funding Agreement' be used solely for the purpose of the representative proceeding. UGL was permitted to use the funding agreement to commence and conduct proceedings under section 1324 of the Corporations Act 2001 (Cth) in the terms set out in its interlocutory application dated 6 May 2021. The court's decision was based on the specific circumstances of the case and the balance of interests of the parties involved.
Orders
Orders of the court
1. In respect of the 'UGL (Alcoa) Class Action Funding Agreement' dated 21 December 2020 and disclosed by the applicant on 6 April 2021 in accordance with the Class Actions Practice Note (GPN-CA) dated 20 December 2019, the respondent be released from the implied undertaking that this document only be used for the purpose for which it was disclosed such that the respondent is permitted to use the document to commence and conduct proceedings under s 1324 of the Corporations Act 2001 (Cth) in the terms set out in its interlocutory application dated 6 May 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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