Olson v Keefe

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: LEE J
• Judgment Date: 13 March 2019
• Neutral Citation: [2019] FCA 339
• Date: 13 March 2019

FEDERAL COURT OF AUSTRALIA

Olson v Keefe [2019] FCA 339

Appeal from:	Application for extension of time and application for leave to appeal: Olson v Keefe (No 2) [2017] FCA 1168 Application for leave to appeal: Olson v Keefe (No 3) [2018] FCA 2001
File numbers:	NSD 27 of 2019NSD 29 of 2019
Judge:	LEE J
Date of judgment:	13 March 2019
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time – application for leave to appeal from interlocutory judgments – whether sufficiently arguable – summary dismissal of claim against one respondent – strike out – failure to disclose comprehensible pleaded basis for claims – failure to attempt to identify House v King error in determination of primary judge not to allow repleading of part of claim – Decor test not satisfied and applications dismissed
Legislation:	Australian Consumer Law ss 2, 20, 21 Corporations Act 2001 (Cth) s 1317AC Federal Court Rules 2011 (Cth) 16.42
Cases cited:	Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2017) 272 IR 151 Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 472; (2006) 230 ALR 437 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 House v King (1936) 55 CLR 499 In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 John Alexander’s Clubs Pty Limited v White City Tennis Club Limited [2010] HCA19; (2010) 241 CLR 1 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 Nationwide News Pty Limited v Rush [2018] FCAFC 70 Olson v Keefe [2017] FCA 101 Olson v Keefe (No 2) [2017] FCA 1168; (2017) 122 ACSR 395 Olson v Keefe (No 3) [2018] FCA 2001 Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317 Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Date of hearing:	6 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	Mr G Hatcher SC with Mr H W M Stitt
Solicitor for the Applicant:	Mills Oakley
Counsel for the Respondents:	Mr Y Shariff SC with Mr N Condylis
Solicitor for the Respondents:	King & Wood Mallesons

ORDERS

		NSD 27 of 2019 NSD 29 of 2019
BETWEEN:	KEVIN OLSON Applicant
AND:	MICHAEL THOMAS KEEFE First Respondent ; CORY LIPOFF Second Respondent ; HILCO MERCHANT RESOURCES LLC (and another named in the Schedule) Third Respondent

JUDGE:	LEE J
DATE OF ORDER:	13 March 2019

THE COURT ORDERS THAT:

1. The application for extension of time to seek leave to appeal from Orders 1-3 and 6 of the orders made by the primary judge on 16 October 2017 be granted, but the application for leave to appeal be dismissed.

2. The application for leave to appeal from the orders made by the primary judge on 18 December 2018 be dismissed.

3. The applicant pay the respondents’ costs of the applications.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

A Introduction & The Proceedings

1. Before the Court is an application for an extension of time to bring an application for leave to appeal from an interlocutory decision of the primary judge, which had the effect of summarily dismissing and striking out parts of the applicant’s amended statement of claim (2017 application). A further application is made for leave to appeal from orders of the primary judge made following a further interlocutory application, which resulted in a refusal of leave to file a further amended statement of claim (FASOC) (2018 application).

2. At the commencement of argument, the respondents agreed that the question of the substantive merits of the proposed appeal in relation to the 2017 interlocutory judgment was likely to be determinative of any application for extension of time. In these circumstances, I indicated that I would grant the extension of time. It followed that both applications for leave to appeal can be determined on what might broadly be described as their merits.

3. There were eight grounds of appeal identified in the draft notice of appeal in the 2017 application, and 11 grounds of appeal in the draft notice of appeal in the 2018 application. Some of these are not in fact, grounds of appeal at all; some overlap or express the same concept in different ways or at different levels of abstraction; and most were undeveloped in written and oral submissions. Unsurprisingly, the submissions before me focussed generally on whether the orders of the primary judge in summarily dismissing and striking out aspects of the claims as discussed below were arguably wrong, hence justifying a grant of leave and also whether a failure to grant leave would occasion an injustice. It is appropriate for me to deal with the applications in a manner consistent with the way in which they were presented in argument.

4. There is no need for me to tarry in setting out the relevant factual background in any detail. In an earlier interlocutory judgment, the primary judge outlined the nature of the proceedings and the matters in dispute: see Olson v Keefe [2017] FCA 101 at [6]-[18], [22].

5. It suffices to note that in very general terms the proceeding arises out of the employment relationship between the applicant, Mr Olson, and the third respondent, Hilco Merchant Resources LLC (Hilco USA) and/or the fourth respondent, Hilco Merchant Australia Pty Ltd (Hilco Australia), its wholly owned subsidiary. The other relevant actors in the proceedings are the first respondent, Mr Michael Keefe, who at relevant times was the chief executive officer of Hilco USA and a director of Hilco Australia and the second respondent, Mr Lipoff, who was the “executive vice president” of Hilco USA, and was also a director of Hilco Australia.

6. Mr Olson’s case, in essence, is that he was not paid certain entitlements owing under a contract of employment with either Hilco USA or Hilco Australia. Apart from a case claiming damages for breach of contract, Mr Olson also brings a case for statutory compensation arising from alleged breaches of the misleading and deceptive conduct norms contained in the Australian Consumer Law (ACL), and a “victimisation” case under s 1317AC of the Corporations Act 2001 (Cth) (Act). In addition to these cases, four additional causes of action have...