Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191

Federal Court of Australia

Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 File number(s): VID 798 of 2020

Judgment of: MORTIMER J

Date of judgment: 7 October 2022.

Catchwords: INDUSTRIAL LAW – employment – identity of employer – whether corporation named in employment contract was applicant's employer – whether written contract of employment had any features of a sham transaction – both respondent corporation and putative employer in liquidation – primary and accessorial liability of second respondent as director of both corporations – where second respondent ceased to be a director of putative employer corporation during applicant's employment – causes of action in contract and equity – statutory causes of action under Fair Work Act 2009 (Cth) and Competition and Consumer Act 2010 (Cth) – application dismissed PRACTICE AND PROCEDURE – interlocutory application after close of evidence for leave to amend statement of claim to identify a non-party as the applicant's employer –where the applicant had not availed himself of earlier opportunities to make that amendment – consideration of prejudice to the respondents – interlocutory application dismissed

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), ss 2, 18, 31, 236-239, 248 Fair Work Act 2009 (Cth) ss 44(1), 90, 117, 323, 340, 341, 342, 500(2), 550

Cases cited: 133 Walsh Street Pty Ltd v BMF Pty Ltd [2020] VSC 650 Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1043 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 96 ALJR 89 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Coote v Mainline Access Pty Ltd & Anor (No 3) [2019] FCCA 383; 344 FLR 1 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176; 198 FCR 174 Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391; 99 SASR 461 Gothard, in the matter of AFG Pty Limited (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163; 80 ACSR 56 Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd (In Liquidation) (Controller Appointed) [2004] FCA 1148 JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 McCardle v Johnson (No 2) [2022] FCA 168 Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 Murphy v Chapple [2022] FCAFC 165 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 Pitcher v Langford (1991) 23 NSWLR 142 Robinson v BMF Pty Ltd (in liq) [2021] FCA 1064 Rumble v The Partnership (T/as HWL Ebsworth Lawyers) [2020] FCAFC 37; 275 FCR 423 Tamu v World Vision Australia [2021] FCA 333 Textile Footwear & Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465 WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456 Yorke v Lucas [1985] HCA 65; 158 CLR 661 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144 Allsop CJ, "Piercing the Corporate Veil: Recent International Developments" (Paper presented to the 38th Annual Conference of the Banking & Financial Services Law Association, 26 August 2022)