Mutch v ISG Management Pty Ltd [2020] FCA 362

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