Mutch v ISG Management Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: BROMBERG J
• Judgment Date: 18 March 2020
• Neutral Citation: [2020] FCA 362
• Date: 18 March 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Mutch v ISG Management Pty Ltd [2020] FCA 362

File numbers:	VID 1492 of 2018 VID 474 of 2019
Judge:	BROMBERG J
Date of judgment:	18 March 2020
Catchwords:	PRACTICE AND PROCEDURE – proceeding commenced as representative proceeding pursuant to Pt IVA Federal Court of Australia Act 1976 (Cth) (“FCA”) – application for declaration that proceeding not properly commenced as representative proceeding pursuant to s 33C FCA – whether claims give rise to substantial common issue of fact or law – claims that group members were employees of respondent – claim that indicia of employment common to group members and that each indicia raised a common issue – whether claim that group members were employees must be determined on individual-by-individual basis and thus no common issue raised – application dismissed ; PRACTICE AND PROCEDURE – application pursuant to s 33N FCA for order that proceeding no longer continue as representative proceeding – whether representative proceeding would provide efficient and effective means of dealing with claims of group members – whether it was otherwise inappropriate that claims be pursued as representative proceeding – where utility in common rather than individual determination of whether particular indicia support characterisation of relationship between group members and respondent as that of employment – application dismissed ; PRACTICE AND PROCEDURE – application for order pursuant to s 33ZF FCA to require group members to elect to remain group members by an opt‑in process which would effectuate class closure – whether class closure orders appropriate or necessary to ensure justice is done in the proceeding – whether compelling reason to order class closure – discussion about difference between opt-in and opt-out processes – statutory preference for opt‑out process not to be undermined by exercise of s 33ZF discretion – application dismissed PRACTICE AND PROCEDURE – application for common fund order under s 33ZF FCA – where High Court found in BMW v Brewster Australia Ltd [2019] HCA 45 that no power for Federal Court to make a common fund order under s 33ZF – application dismissed ; PRACTICE AND PROCEDURE – application under s 31A(2) FCA for summary judgment for respondent’s cross-claim – where summary judgment application made prematurely – application adjourned ; INDUSTRIAL LAW – whether group members employees of respondent or employees or independent contractors of another corporation – for the purpose of the determination of ss 33C and 33N FCA issues, consideration of factors likely to be relevant at trial
Legislation:	Corporations Act 2001 (Cth): s 601AH(2) Fair Work Act 2009 (Cth): s 357(1) Federal Court of Australia Act 1976 (Cth): ss 31A(2), 33C(1)(c), 33N(1), 33ZF
Cases cited:	Ace Insurance Ltd v Trifunovski (2013) 209 FCR 146 ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109 AMP General Insurance Ltd v Victorian Workcover Authority (2006) 15 VR 175 AS (by her litigation guardian Marie Theresa Arthur) v Minister for Immigration and Border Protection [2017] VSC 137 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 BMW Australia Ltd v Brewster [2019] HCA 45 Boys, in the matter of 38 Akuna Pty Ltd (deregistered) v Australian Securities and Investments Commission [2019] FCA 320 Bright v Femcare Ltd [2002] FCAFC 243 Bywater v Appco Group Australia Pty Ltd [2018] FCA 707 Carnie v Esanda Finance Corporation Ltd (1996) 38 NSWLR 465 Curtis v Perth and Freemantle Bottle Exchange Co Ltd (1914) 18 CLR 17 Deputy Commissioner of Taxation v Australian Securities and Investments Commission; in the matter of Civic Finance Pty Ltd (deregistered) [2010] FCA 1411 Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 Dorajay Pty Ltd v Aristocrat Leisure Ltd (2005) 147 FCR 394 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 Garnac Grain Co Inc v H M F Faure and Fairclough Ltd [1968] AC 1130 Gill v Ethicon Sàrl (No 3) [2019] FCA 587 Guglielmin v Trescowthick (No 2) [2005] FCA 138 Hayes (Liquidator) v 5G Developments Pty Ltd, in the matter of 5G Developments Pty Ltd [2019] FCA 1541 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 In the matter of ERB International Pty Ltd (deregistered) [2014] NSWSC 200 In the matter of Likehart Pty Ltd (deregistered) [2017] NSWSC 884 Re James Hardie Australia Finance Pty Ltd (deregistered) (2008) 170 FCR 545 Jenkings v Northern Territory of Australia [2017] FCA 1263 Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 King v GIO Australia Holdings Ltd [2000] FCA 1869 Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 Lopez v Deputy Commissioner of Taxation (2005) 143 FCR 574 Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 Massey v Crown Life Insurance Co [1978] 2 All ER 576 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 Mutiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275 Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 Partners v Sampson [2002] NSWSC 383 Phillips Petroleum Co v Shutts 472 U.S 797 (1985) Re Brockweir Pty Ltd [2012] VSC 225 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2010) 184 FCR 448 Thomas v Powercor Australia Ltd (No 1) [2010] VSC 489 Tropical Shine Holdings Pty Ltd (t/a K C Country) v Lake Gesture Pty Ltd (1993) 45 FCR 457 Winterford v Pfizer Australia Pty Ltd [2012] FCA 1199 Wong v Silkfield Pty Ltd (1999) 199 CLR 255
Date of hearing:	2 and 3 October 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	148
Counsel for the Applicant in VID 1492 of 2018 and the Intervener in VID 474 of 2019:	Mr I Pike SC with Mr J Dooley
Solicitor for the Applicant in VID 1492 of 2018 and the Intervener in VID 474 of 2019:	Shine Lawyers Pty Ltd
Counsel for the Respondent in VID 1492 of 2018 and the Applicant in VID 474 of 2019:	Mr F Parry QC with Dr C Button QC, Mr D Snyder and Mr B Avallone
Solicitor for the Respondent in VID 1492 of 2018 and the Applicant in VID 474 of 2019:	Lander & Rogers
Counsel for the Respondent in VID 474 of 2019:	The Respondent did not appear

ORDERS

		VID 1492 of 2018
BETWEEN:	ROBERT MUTCH Applicant
AND:	ISG MANAGEMENT PTY LTD (ACN 142 916...