Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135

Summary judgment was refused because, although the pleadings concerning the third respondent's accessorial liability and the alleged arrangement were deficient, the deficiencies were capable of amendment and the questions of knowledge, conspiracy and evidentiary sufficiency were not suitable for determination summarily before trial, particularly where the third respondent was one of several respondents and further evidence might be elicited. Paragraphs 63.9, 64 and 65 were struck out because they failed to plead with sufficient clarity the conduct constituting aiding, abetting or knowing concern and did not adequately particularise the alleged arrangement. The Court declined to determine...

Jurisdiction
Australia
Judgment Date
04 November 2013
Procedural Posture
Fair Work Civil Penalty Proceeding With Interlocutory Application for Summary Judgment or Strike Out / Ruling on Third Respondent's Application Under S 31 a of the Federal Court of Australia Act 1976 (cth), Alternative Strike Out Application, and Respondents' Costs Application
Outcome
Summary judgment application dismissed; strike out application allowed in part with leave to re-plead; respondents' application for this Court to determine reserved Federal Circuit Court costs declined.
Legal Topics
['summary Judgment' 'strike Out of Pleadings' 'accessorial Liability Under S 550 of the Fair Work Act 2009 (cth)' 'modern Award Contraventions' 'civil Penalties' 'costs Under S 570 of the Fair Work Act 2009 (cth)']
['practice and Procedure' 'employment Law' 'fair Work'] ['summary Judgment' 'strike Out of Pleadings' 'accessorial Liability Under S 550 of the Fair Work Act 2009 (cth)' 'modern Award Contraventions' 'civil Penalties' 'costs Under S 570 of the Fair Work Act 2009 (cth)']

Case Brief

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Procedural Posture

Fair Work Civil Penalty Proceeding With Interlocutory Application for Summary Judgment or Strike Out / Ruling on Third Respondent's Application Under S 31 a of the Federal Court of Australia Act 1976 (cth), Alternative Strike Out Application, and Respondents' Costs Application

Legal Issues

  1. 1 ["Whether the Fair Work Ombudsman's claims against the third respondent had no reasonable prospect of success under s 31A of the Federal Court of Australia Act 1976 (Cth)." 'Whether paragraphs 63.9, 64 and 65 of the amended statement of claim adequately pleaded material facts for accessorial liability and conspiracy under s 550 of the Fair Work Act 2009 (Cth).' 'What degree of knowledge must be pleaded or proved to establish accessorial liability under s 550 of the Fair Work Act 2009 (Cth).' 'Whether it was appropriate to grant summary judgment for one of several respondents before trial where further evidence might implicate that respondent.' 'Whether this Court should determine costs reserved in the Federal Circuit Court concerning an unsuccessful discovery application.']

Ratio Decidendi

Summary judgment was refused because, although the pleadings concerning the third respondent's accessorial liability and the alleged arrangement were deficient, the deficiencies were capable of amendment and the questions of knowledge, conspiracy and evidentiary sufficiency were not suitable for determination summarily before trial, particularly where the third respondent was one of several respondents and further evidence might be elicited. Paragraphs 63.9, 64 and 65 were struck out because they failed to plead with sufficient clarity the conduct constituting aiding, abetting or knowing concern and did not adequately particularise the alleged arrangement. The Court declined to determine...

Court Disposition

Summary judgment application dismissed; strike out application allowed in part with leave to re-plead; respondents' application for this Court to determine reserved Federal Circuit Court costs declined.

Orders

  • ['Paragraphs 63.9, 64 and 65 of the amended statement of claim be struck out.' 'The applicant has leave to file and serve a further amended statement of claim, re-pleading in an appropriate manner the allegations presently in paragraphs 63.9, 64 and 65.' 'The leave granted by Order 2 is to be exercised by 4.00pm on...