Dove v Xmeta Pty Ltd (formerly known as Everforex Financial Pty Ltd) (No 3) [2023] FCA 1320

Dove v Xmeta Pty Ltd (formerly known as Everforex Financial Pty Ltd) (No 3) [2023] FCA 1320

The cross-claim is not an abuse of process even if the conduct of the proceeding benefits a third party who controls it; such motive does not make ordinary pursuit of remedies via the Court illegitimate. The allegations that pre-contractual representations by a prospective employee could not, as a matter of law, be 'in trade or commerce' for s 18 ACL should not be decided on a summary basis; existing authorities support the viability of such claims and it is not clearly untenable. Paragraphs of the cross-claim concerning the Starkey representations, which lacked essential allegations of conduct 'in trade or commerce', must be struck out but leave to replead is appropriate. Security for...

Jurisdiction
Australia
Judgment Date
02 November 2023
Procedural Posture
Interlocutory Application (cross Claim Under the Fair Work Act and Australian Consumer Law) / Rulings on Applications to Strike Out, Security for Costs, Separate Questions, and to Re Open Evidence
Outcome
Interlocutory applications resolved as follows: strike out application partly allowed, security for costs application and separate question application dismissed, leave granted to replead, costs reserved.
Legal Topics
['strike Out of Pleadings' 'security for Costs' 'misleading or Deceptive Conduct' 'employment Contracts' 'fair Work Act Costs Provisions' 'separate Determination of Questions']
['practice and Procedure' 'employment Law' 'consumer Law'] ['strike Out of Pleadings' 'security for Costs' 'misleading or Deceptive Conduct' 'employment Contracts' 'fair Work Act Costs Provisions' 'separate Determination of Questions']

Case Brief

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Procedural Posture

Interlocutory Application (cross Claim Under the Fair Work Act and Australian Consumer Law) / Rulings on Applications to Strike Out, Security for Costs, Separate Questions, and to Re Open Evidence

Legal Issues

  1. 1 ["Whether Xmeta's cross-claim is an abuse of process" 'Whether parts of the Further Amended Statement of Cross-Claim (FASCC) should be struck out' "Whether alleged pre-employment representations were conduct 'in trade or commerce' for the purposes of s 18 ACL" 'Whether security for costs should be ordered against Xmeta, given s 570 Fair Work Act' 'Whether to permit repleading of struck out paragraphs' 'Whether to re-open case for further evidence' 'Whether to determine liability separate from damages']

Ratio Decidendi

The cross-claim is not an abuse of process even if the conduct of the proceeding benefits a third party who controls it; such motive does not make ordinary pursuit of remedies via the Court illegitimate. The allegations that pre-contractual representations by a prospective employee could not, as a matter of law, be 'in trade or commerce' for s 18 ACL should not be decided on a summary basis; existing authorities support the viability of such claims and it is not clearly untenable. Paragraphs of the cross-claim concerning the Starkey representations, which lacked essential allegations of conduct 'in trade or commerce', must be struck out but leave to replead is appropriate. Security for...

Court Disposition

Interlocutory applications resolved as follows: strike out application partly allowed, security for costs application and separate question application dismissed, leave granted to replead, costs reserved.

Orders

  • ["The cross-respondents' interlocutory application to re-open (27 October 2023) dismissed." 'Paragraphs 198 to 206 and 263 to 273 of the Further Amended Statement of Cross-Claim struck out.' "The cross-respondents' strike out application otherwise dismissed." 'Leave to replead the cause of action in paragraphs 263...