Rossmick No 1 Pty Ltd v Bank of Queensland Limited [2008] FCAFC 81

Rossmick No 1 Pty Ltd v Bank of Queensland Limited [2008] FCAFC 81

The appeal was allowed in part because, although the primary judge's strike out orders were set aside procedurally, the contentious defence paragraphs identified by the Court were properly struck out: some merely pleaded constructions of agreements, some were unclear or temporally overbroad, and allegations that the Bank was capable of or did mislead the OMB parties were irrelevant to whether they were independent contractors. The Court also held it could not entertain an appeal or make replacement orders concerning the dismissed cross-vesting application because s 13 of the Cross-Vesting Act prevented appellate jurisdiction from being engaged.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Strike Out Orders in Proceedings for Declarations About the Jurisdiction or Power of the Industrial Court of New South Wales Under S 106 of the Industrial Relations Act 1996 (nsw). / Full Court Appeal; Leave to Appeal Was Restricted to Challenging the Strike Out Orders Made on 12 March 2008.
Outcome
Appeal allowed in part.
Legal Topics
['strike Out of Defence Paragraphs' 'leave to Re Plead' 'appealability of Cross Vesting Orders' 'services Contract Under Independent Contractors Act 2006 (cth)' 'independent Contractor Characterisation']
['federal Civil Procedure' 'cross Vesting' 'industrial Relations' 'independent Contractors'] ['strike Out of Defence Paragraphs' 'leave to Re Plead' 'appealability of Cross Vesting Orders' 'services Contract Under Independent Contractors Act 2006 (cth)' 'independent Contractor Characterisation']

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Strike Out Orders in Proceedings for Declarations About the Jurisdiction or Power of the Industrial Court of New South Wales Under S 106 of the Industrial Relations Act 1996 (nsw). / Full Court Appeal; Leave to Appeal Was Restricted to Challenging the Strike Out Orders Made on 12 March 2008.

Legal Issues

  1. 1 ['Whether the Full Court could make or review a cross-vesting order in appellate jurisdiction where s 13 of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) precluded an appeal from dismissal of a cross-vesting application.' "Whether pleaded paragraphs of the OMB parties' defence should be struck out in proceedings concerning whether OMB agreements were services contracts and whether the OMB parties were independent contractors for the purposes of the Independent Contractors Act 2006 (Cth)." 'Whether facts about how the contractual arrangements were carried out could be pleaded as relevant to whether the OMB parties were independent contractors.']

Ratio Decidendi

The appeal was allowed in part because, although the primary judge's strike out orders were set aside procedurally, the contentious defence paragraphs identified by the Court were properly struck out: some merely pleaded constructions of agreements, some were unclear or temporally overbroad, and allegations that the Bank was capable of or did mislead the OMB parties were irrelevant to whether they were independent contractors. The Court also held it could not entertain an appeal or make replacement orders concerning the dismissed cross-vesting application because s 13 of the Cross-Vesting Act prevented appellate jurisdiction from being engaged.

Court Disposition

Appeal allowed in part.

Orders

  • ['The appeal be allowed in part.' 'Orders 3 and 4 made on 12 March 2008 be set aside.' 'Paragraphs 58 to 63, 66, 67 and 85 – 94 of the defence be struck out.' 'The appellants have leave to re-plead generally.' 'The appellants file any amended defence by 20 June 2008 or by such other time as may be ordered by the...