Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v John Holland Pty Limited ACN 004 282 268 [2009] FCA 274

The accessorial liability paragraphs did not plead that Mr Sasse actually knew and understood that the permit holders were entitled to enter the premises or that they were exercising rights under s 760, and nevertheless chose to write letters or issue instructions causing refusal, undue delay, hindrance or obstruction. Because actual knowledge of the essential elements of John Holland's alleged contraventions was required for accessorial liability, the pleaded claim against Mr Sasse had no reasonable prospects in its present form. However, the appropriate course was to strike out the relevant paragraphs with leave to amend, not to enter summary judgment.

Jurisdiction
Australia
Judgment Date
27 March 2009
Procedural Posture
Application by Notice of Motion for Dismissal or Summary Judgment Against the Second Respondent, Alternatively Challenging the Adequacy of the Pleading of Accessorial Liability / Interlocutory Application Concerning an Amended Statement of Claim Filed on 23 March 2009
Outcome
Relevant paragraphs of the Amended Statement of Claim alleging accessorial liability against the Second Respondent were struck out, the applicants were given leave to file and serve a further Amended Statement of Claim, and costs of the notice of motion were reserved.
Legal Topics
['summary Judgment Under S 31 a of the Federal Court of Australia Act 1976' 'strike Out of Pleading' 'accessorial Liability Under S 728 of the Workplace Relations Act 1996 (cth)' 'right of Entry Under Part 15 of the Workplace Relations Act 1996 (cth)' 'civil Remedy Provisions for Refusing or Delaying Entry and Hindering or Obstructing Permit Holders']
['practice and Procedure' 'employment Law' 'workplace Relations'] ['summary Judgment Under S 31 a of the Federal Court of Australia Act 1976' 'strike Out of Pleading' 'accessorial Liability Under S 728 of the Workplace Relations Act 1996 (cth)' 'right of Entry Under Part 15 of the Workplace Relations Act 1996 (cth)' 'civil Remedy Provisions for Refusing or Delaying Entry and Hindering or Obstructing Permit Holders']

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Procedural Posture

Application by Notice of Motion for Dismissal or Summary Judgment Against the Second Respondent, Alternatively Challenging the Adequacy of the Pleading of Accessorial Liability / Interlocutory Application Concerning an Amended Statement of Claim Filed on 23 March 2009

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim pleaded material facts disclosing a cause of action in accessorial liability against Mr Sasse under s 728 of the Workplace Relations Act 1996 (Cth).' 'Whether the applicants had no reasonable prospect of successfully prosecuting the claim against the Second Respondent so as to justify dismissal or summary judgment under s 31A of the Federal Court of Australia Act 1976.' "Whether the pleading alleged actual knowledge by Mr Sasse of the essential matters constituting John Holland's alleged contraventions of ss 767(3) and 767(7) of the Workplace Relations Act 1996 (Cth)."]

Ratio Decidendi

The accessorial liability paragraphs did not plead that Mr Sasse actually knew and understood that the permit holders were entitled to enter the premises or that they were exercising rights under s 760, and nevertheless chose to write letters or issue instructions causing refusal, undue delay, hindrance or obstruction. Because actual knowledge of the essential elements of John Holland's alleged contraventions was required for accessorial liability, the pleaded claim against Mr Sasse had no reasonable prospects in its present form. However, the appropriate course was to strike out the relevant paragraphs with leave to amend, not to enter summary judgment.

Court Disposition

Relevant paragraphs of the Amended Statement of Claim alleging accessorial liability against the Second Respondent were struck out, the applicants were given leave to file and serve a further Amended Statement of Claim, and costs of the notice of motion were reserved.

Orders

  • ['Paragraphs 44, 45, 46, 47, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 100 and 102 to 106 of the Amended Statement of Claim in the proceeding filed on 23 March 2009 are struck out.' 'The applicants are given leave to file and serve a further Amended Statement of Claim by 4.00pm, Thursday, 2 April 2009.'...