Federal Court of Australia

Waterproofing Technologies Pty Limited v Perri (No 4) [2025] FCA 985

ORDERS

THE COURT ORDERS THAT:

1.    The ninth respondent have leave to join the following persons as cross-respondents to his cross-claim:

(a)    Ms Betty Augerinos as tenth cross-respondent;

(b)    Mr Graham Athanaseris as eleventh cross-respondent; and

(c)    Mr Arthur Balayannis as twelfth cross-respondent.

2.    The ninth respondent have leave to file and serve an amended notice of cross-claim and amended statement of cross-claim in the form annexed to his interlocutory application dated 28 March 2025, but with sub-paragraphs 153(b) and 153(d) removed.

3.    There be no order as to costs of the ninth respondent’s interlocutory application dated 28 March 2025.

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

REASONS FOR JUDGMENT

MOORE J:

1    These reasons follow on from, and are to be read with, Waterproofing Technologies Pty Limited v Perri (No 3) [2025] FCA 934 (Waterproofing No 3). They concern what was defined in Waterproofing No 3 as the second interlocutory application, which is brought by the ninth respondent, Mr Ilic, and which seeks orders joining three cross-respondents to the cross-claim (Ms Betty Augerinos, Mr Graham Athanaseris and Mr Arthur Balayannis) and granting leave to file an amended notice of cross-claim and amended statement of cross-claim with amendments relating to the joinder.

2    As described in Waterproofing No 3, there have been many interlocutory applications in these proceedings. The proceedings are set down for final hearing before me commencing on 13 October 2025. A set of interlocutory applications was heard by me in an omnibus hearing. Waterproofing No 3 was the first judgment dealing with the issues raised at that hearing, and these reasons comprise the second judgment.

3    Mr Ilic also foreshadows other relief in a contingent sense, being contingent upon what happens to the application by other respondents for security for costs. I will deal with that in due course when (and if) any relevant interlocutory application is pursued.

4    The applicants in the proceedings oppose the relief sought in the second interlocutory application.

Standing

5    As a preliminary point, Mr Ilic contends that the applicants have no standing to object to the relief sought in the second interlocutory application. Counsel for Mr Ilic, Mr Magowan, complained that counsel and solicitors acting for the applicants did not appear for the putative cross-respondents and had no standing to object to the relief sought by Mr Ilic.

6    I do not accept this contention. Mr Ilic’s application seeks to join new parties as cross-respondents to the cross-claim and seeks to add new causes of action. That has the potential to add to the complexity of the proceedings which are currently listed for hearing commencing on 13 October 2025, and has the potential to disrupt that hearing. This would particularly be so if the claims were unclear or poorly framed, or if the addition of the claims or the parties raised significant factual issues that might delay or prolong the hearing. These proceedings have been on foot for more than four years. They have been delayed by interlocutory disputation. A previous hearing was vacated. It is clear that the applicants have standing to raise issues about matters that may affect the efficient conduct of the hearing.

Complaints raised by the applicants

7    The existing cross-claim contains a claim by Mr Ilic about his leave entitlements. Mr Ilic says that he was an employee who was wrongfully deprived of his annual leave entitlements and long service leave entitlements when he was terminated by the first cross-respondent (Polyseal Victoria). Mr Ilic pleads that this was a breach of various provisions of the Fair Work Act 2009 (Cth) and s 9(2) of the Long Service Leave Act 2018 (Vic). Mr Ilic also claims loss of income, being the loss of wages from employment over the four weeks of notice that he says should have been provided to him.

8    The new claim that Mr Ilic wishes to bring is a claim for accessorial liability against the three cross-respondents for the conduct of Polyseal Victoria. Mr Ilic pleads, inter alia, that the decisions to summarily terminate him and not pay his entitlements were made by or with the knowledge of each of Ms Augerinos, Mr Athanaseris and Mr Balayannis. Paragraph 153 of the proposed pleading then provides that each of Ms Augerinos, Mr Athanaseris and Mr Balayannis have:

(a)    aided, abetted, counselled or procured Polyseal Victoria’s contravention;

(b)    induced Polyseal Victoria’s contravention whether by threats or promises or otherwise;

(c)    been by, an act or omission, directly or indirectly knowingly concerned in or part of Polyseal Victoria’s contravention; or

(d)    conspired with others to effect Polyseal Victoria’s contraventions,

such that Augerinos, Athanaseris and Balayannis are “involved persons” within the meaning of s550 of the Fair Work Act 2019 (Cth) and are taken to have contravened the relevant civil penalty provision.

9    The applicants complain about (b) and (d). They say that the “threats” or “promises” have not been identified. They say that the conspiracy has not been identified, and nor have the “others”.

10    I agree with these complaints. However, I do not need to say anything more about it because Mr Magowan has conceded that he does not need (b) or (d). Therefore, the leave to file the proposed amended cross-claim will not include leave to file a pleading that includes sub-paragraphs 153(b) or (d).

11    Counsel for the applicants, Mr Simpkins, made a generalised complaint about the pleading of knowledge. I do not agree that there is any difficulty in that regard. The basis of the claim and the basis of the alleged attribution of knowledge is clear enough for pleading purposes, particularly given the size of Polyseal Victoria, as Mr Simpkins ultimately appeared to concede.

12    Mr Simpkins also complained about the claim for “loss and damage”. However, I think this is tolerably clear. The existing statement of cross-claim alleges that Polyseal Victoria failed to pay Mr Ilic his Annual Leave Entitlements and his Long Service Leave Entitlements (which together are defined as Mr Ilic’s “Statutory Entitlements” in proposed sub-paragraph 148(c)). In proposed paragraph 154, it is pleaded as follows:

In the circumstances:

(a)    each of Augerinos, Athanaseris and Balayannis ought be personally liable for the Statutory Entitlements alternatively Annual Leave Entitlements pursuant to s550 of the Fair Work Act 2019 (Cth) and are indebted to Ben for that loss and damage; and

(b)    this Honourable Court ought to impose penalties as against each of Polyseal Victoria, Augerinos, Athanaseris and Balayannis.

13    The reference to loss and damage is simply a reference to the alleged Statutory Entitlements, being the Annual Leave Entitlement and the Long Service Leave Entitlements, which Mr Ilic asserts he can recover from the proposed additional cross-respondents. What is claimed is clear enough.

14    I note for completeness that Mr Ilic pleads a different form of loss in proposed paragraph 142, being the loss alleged to flow from the alleged unfair dismissal. That is not referred to in proposed paragraph 154, and therefore does not appear to be sought to be recovered from the proposed additional cross-respondents.

Conclusion

15    I will give leave to Mr Ilic to join the proposed additional cross-respondents to the cross-claim. I will also give leave to Mr Ilic to file the proposed Amended Notice of Cross-Claim and the proposed Amended Statement of Cross-Claim in the form annexed to the second interlocutory application, but with sub-paragraphs 153(b) and (d) of the proposed Amended Statement of Cross-Claim removed.

16    As each party has had a measure of success on the second interlocutory application, I will order that there be no order as to costs of the ninth respondent’s interlocutory application.

Associate:

Dated:    20 August 2025

SCHEDULE OF PARTIES