Murdoch University v National Tertiary Education Industry Union (No 2) [2017] FCA 1507

Murdoch University v National Tertiary Education Industry Union (No 2) [2017] FCA 1507

Leave to amend the originating application and statement of claim was granted because the respondents failed to demonstrate that the new coercion claim was bound to fail, improperly pleaded, disproportionate in cost/benefit, or unreasonably delayed. Summary judgment and strike out applications by the respondents were dismissed because the impugned claims disclosed arguable causes of action and factual/legal issues were not suitable for summary determination at the interlocutory stage.

Parties
Applicant: Murdoch University; First Respondent: National Tertiary Education Industry Union; Second Respondent: Gabe Gooding; Third Respondent: Alex Cousner
Jurisdiction
Australia
Judgment Date
22 December 2017
Procedural Posture
Civil / Interlocutory Applications (leave to Amend; Summary Judgment/strike Out)
Outcome
Applicant's interlocutory application granted; respondents' interlocutory application dismissed; costs reserved.
Legal Topics
Leave to Amend Originating Process and Statement of Claim, Summary Judgment, Strike Out Application, Coercion Under Fair Work Act S 343, Misrepresentation Under Fair Work Act S 345, Civil Penalty Proceedings
Employment & Industrial Relations Practice and Procedure Leave to Amend Originating Process and Statement of Claim Summary Judgment Strike Out Application Coercion Under Fair Work Act S 343 Misrepresentation Under Fair Work Act S 345 Civil Penalty Proceedings

Case Brief

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Parties

Murdoch University

Applicant

National Tertiary Education Industry Union

First Respondent

Gabe Gooding

Second Respondent

Alex Cousner

Third Respondent

Procedural Posture

Civil / Interlocutory Applications (leave to Amend; Summary Judgment/strike Out)

Legal Issues

  1. 1 Whether leave to amend should be granted to add a coercion claim under s 343(1) of the Fair Work Act 2009 (Cth)
  2. 2 Whether parts of statement of claim should be struck out or summary judgment granted against the applicant under s 31A of the Federal Court of Australia Act and r 26.01
  3. 3 Whether the impugned representations are about exercise/effect of a workplace right under s 345 of the Fair Work Act 2009 (Cth)

Ratio Decidendi

Leave to amend the originating application and statement of claim was granted because the respondents failed to demonstrate that the new coercion claim was bound to fail, improperly pleaded, disproportionate in cost/benefit, or unreasonably delayed. Summary judgment and strike out applications by the respondents were dismissed because the impugned claims disclosed arguable causes of action and factual/legal issues were not suitable for summary determination at the interlocutory stage.

Court Disposition

Applicant's interlocutory application granted; respondents' interlocutory application dismissed; costs reserved.

Orders

  • The respondents' interlocutory application dated 21 April 2017 is dismissed.
  • The applicant has leave to further amend its originating application dated 12 September 2016, substantially in the form provided to the solicitors for the respondents on 20 March 2017.