Zehnder v Sell Lease Property Pty Ltd t/as Sell Lease Property
[2015] FCCA 3393
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEHNDER v SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY | [2015] FCCA 3393 |
| Catchwords: INDUSTRIAL LAW – Allegations of accessorial liability – joinder of alleged accessories – whether Court’s jurisdiction dependent on accessory having a certificate issued pursuant to s.368 of the Fair Work Act 2009. |
| Legislation: Fair Work Act 2009, ss.342, 365, 368, 370, 550 |
| Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94 McCullough v Allan [2015] FCA 1101 Allan v Condamine Catchment Natural Resource Management Corporation Ltd [2015] FCCA 2632 Harwood v The Trustee of the Property of John Mervyn Harwood (2015) 297 FLR 159 |
| Applicant: | LEE ZEHNDER |
| Respondent: | SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY ACN 150 537 527 |
| File Number: | PEG 128 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 4 December 2015 |
| Date of Last Submission: | 4 December 2015 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr S. Heathcote |
| Solicitors for the Respondent: | Steve Heathcote Barrister & Solicitor |
ORDERS
The applicant have leave to file and serve:
(a)an amended application; and
(b)a further amended Form 2,
on or before 18 December 2015.
The respondents file and serve a response to the amended application and further amended Form 2 by 15 January 2016.
The applicant file and serve any further affidavits on which he will rely on or before 29 January 2016.
The respondents file and serve any affidavits on which they will rely on by 19 February 2016.
The applicant file and serve any affidavits in reply on which he will rely on or before 4 March 2016.
The applicant file and serve an outline of submissions 14 days prior to trial.
The respondents file and serve an outline of submissions 7 days prior to trial.
The parties have liberty to apply on 3 days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 128 of 2015
| LEE ZEHNDER |
Applicant
And
| SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY ACN 150 537 527 |
Respondent
REASONS FOR JUDGMENT
These are proceedings under the Fair Work Act 2009 (“FW Act”) concerning the applicant’s dismissal from his employment with the respondent. The respondent has not filed its affidavits in accordance with the timetable ordered by Judge Lucev earlier this year and the applicant has sought orders in that connection. The applicant seeks:
a)default judgment by reason of the respondent’s failure to comply with the Court’s orders; or
b)discovery against the respondent; and
c)joinder of two senior executives of the respondent, Brett Quinn and Graeme MacEwan, and an adjustment to the timetable accordingly.
The respondent concedes that it has not complied with the timetable and seeks an amendment to the timetable to the effect that it may file its evidence by mid-January 2016.
It is convenient to deal first with the respondent’s default in compliance with the timetable set by the Court. The respondent has indicated that it will file its principal affidavit, that of Mr Quinn, by mid-January 2016. It appears that Mr Quinn is in the Philippines and cannot return to Australia because his passport has been provided to the Philippine Government in order that he can be granted a visa which will allow him easy travel to the Philippines for a period of years. I am also told that until his passport is returned to him, he is not in a position to have his draft affidavit witnessed by an appropriate person in the Philippines.
The delay in the provision of Mr Quinn’s affidavit is concerning, particularly as the evidence and submissions concerning why it has not been sworn or affirmed are not particularly persuasive. If Mr Quinn were minded he could swear or affirm his affidavit by attending the Australian Embassy in Manila. I would be very surprised if the Embassy in Manila required him to produce his passport before they would assist a person who would, I imagine, be plainly an Australian citizen or, at the very least, an Australian resident. I accept that Mr Quinn is not close to Manila, being on the island of Cebu, but he is a senior executive of the respondent in this proceeding and should take all steps to get his affidavit filed on time.
Nonetheless, it must be kept in mind that the matter is listed for hearing in May 2016 and so the respondent’s delay in filing its evidence, while concerning, is not likely to have any effect on the matter proceeding to trial on time. Consequently, I do not think that it is appropriate that an order for default judgment be entered. Further delays would be of greater concern and would perhaps call for the imposition of a self-executing order; however, I think it would be premature to make a self-executing order at this point although the respondent should be aware of the risk that such order might be made if it fails to comply with the Court’s revised timetable.
Turning to the question of joinder, as recorded earlier the applicant wishes to join Messrs Quinn and MacEwan, who are senior executives of the respondent. The applicant has indicated to the Court that he seeks to join them under s.550 of the FW Act which provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
The applicant wishes to allege that Messrs Quinn and MacEwan are liable as accessories for any contraventions found against the respondent in the present proceedings. The respondent opposes the application to join those two gentlemen, as do they, Mr Heathcote advised the Court.
The respondent relied on a number of authorities in support of its opposition to the proposed joinder but only one has any particular relevance to the present question. In saying this, I accept the principle to be derived from the authorities to the effect that a person may not bring proceedings in this Court for relief under s.370 of the FW Act in relation to unlawful dismissal unless the dispute in question has been dealt with by the Fair Work Commission under s.365 of the FW Act and a certificate under s.368 of that Act has issued. At this point it is worth remembering that the applicant wishes to join Messrs Quinn and MacEwan under s.550 of FW Act, not s.370.
In Dain v Mark Group Australia Pty Ltd (2012) 224 IR 94, Raphael FM held that potential accessories could not be joined in proceedings in this Court commenced under s.370 of the FW Act unless they had also been parties to the relevant Fair Work Commission process and a s.368 certificate issued in respect of them. With great respect to his Honour, I think he was plainly wrong. Federal Magistrate Raphael’s judgment was based on an understanding of the FW Act to the effect that the matter before the Court had to be the same as the one which had been before the Fair Work Commission; however, s.370 of the FW Act speaks of the dispute, not of the matter, and they are different things.
A matter involving potential accessorial liability is not one which can come before the Fair Work Commission for consideration under s.365 of the FW Act and so cannot be the subject of a s.368 certificate. Section 368 and its related provisions are found in div.8, pt.3-1 of ch.3 of the FW Act. That division is concerned with compliance with the general protection provisions of the FW Act, relevantly the provisions prohibiting adverse action in the form of dismissal in contravention of a general protection. Such adverse action is referred to in s.342 of the FW Act and relevantly concerns actions taken by employers or prospective employers against employees or prospective employees. There is no right under those provisions to bring an alleged accessory before the Fair Work Commission to be dealt with under s.365 of the FW Act and so no ability to obtain a s.368 certificate exists in relation to alleged accessories. Consistently with that fact the accessorial liability provision, s.550, is found in ch.4 of the FW Act which is concerned with court-based compliance and enforcement proceedings.
Because Messrs Quinn and MacEwan could not have been brought before the Fair Work Commission pursuant to s.365 and accessorial liability claims exist only in the context of court proceedings, there is no jurisdictional impediment to the applicant joining Messrs Quinn and MacEwan in the proceedings, as asserted by the respondent, as long as the allegations of accessorial liability made against them stay within the scope of the dispute between the applicant and the respondent which was dealt with by the Fair Work Commission. There will be an order accordingly and the timetable will be amended.
Before leaving this issue, I should record that I was taken to the judgment of Logan J in McCullough v Allan [2015] FCA 1101, and I have also read the primary decision of Judge Jarrett in Allan v Condamine Catchment Natural Resource Management Corporation Ltd [2015] FCCA 2632. With respect, it does not appear to me that the conclusion I have reached is inconsistent with the reasons given by his Honour for granting leave to appeal from the judgment of Judge Jarrett.
Turning to the question of discovery, the Court’s statute makes it plain that discovery is not a right and will be granted only in circumstances where the administration of justice favours it. That suggests that if suitable alternative methods of obtaining documents are available to a party, then discovery is not to be ordered: Harwood v The Trustee of the Property of John Mervyn Harwood (2015) 297 FLR 159.
During the hearing of the present applications in a case the applicant indicated that he knew to which documents or classes of documents held by the respondent he wished to gain access. In the circumstances, a subpoena or notice to produce would be a more appropriate method than discovery for him to obtain access to those documents.
Further in this regard I note that Mr Heathcote for the respondent indicated that it might be possible for the documents to be provided on an informal basis and thereby avoid the need for a subpoena or a notice to produce. I will leave that to the parties but if the applicant is unable to obtain the documents he seeks then he may file and serve a subpoena or serve a notice to produce for the documents he wishes to have.
The final matter to be addressed is whether the hearing date of the matter should be amended. I do not consider it appropriate to make any changes to the present listing of the matter. Such questions are better left to the docket judge, Judge Lucev, to consider next year fully informed as to the progress of the matter at that point.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 December 2015
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