Legal Research
Cases
Adidem Pty Ltd v Cowdery

Adidem Pty Ltd v Cowdery

Case [2014] VSC 533 28 October 2014

Appeal

Limitation Periods

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 5423

ADIDEM PTY LTD TRADING AS THE BODY SHOP (ACN 006 122 872)	Appellant
v
NIGEL COWDERY	Respondent

---

JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2014
DATE OF JUDGMENT:	28 October 2014
CASE MAY BE CITED AS:	Adidem Pty Ltd v Cowdery
MEDIUM NEUTRAL CITATION:	[2014] VSC 533

---

Appeal — Leave to appeal from order of Magistrates’ Court — Appeal from order of Associate Judge granting leave to appeal — Failure to appeal within prescribed 30 day period not due to exceptional circumstances — Magistrates’ Court Act 1989 s 109(4), (5) —Supreme Court (General Civil Procedure) Rules 2005, r 77.06

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Galbraith	Nevett Ford Melbourne Lawyers
For the Respondent	Ms G Jardine	McDonald Murholme Barristers and Solicitors

HIS HONOUR:

Introduction

Following the termination of the respondent’s employment by the appellant, the respondent (‘Mr Cowdery’) commenced proceedings in the Magistrates’ Court of Victoria alleging breach of contract and a failure by the appellant (‘the Body Shop’) to make redundancy payments in accordance with s 119 of the Fair Work Act 2009 (Cth) (‘Fair Work Act’). Mr Cowdery also sought the imposition of a penalty against the Body Shop pursuant to s 545 of the Fair Work Act in respect of the alleged non-compliance with s 119. Mr Cowdery succeeded in his claim for redundancy payments under s 119. The Magistrates’ Court rejected his claims for breach of contract and for the imposition of a penalty for non-compliance with s 119.

Mr Cowdery filed a notice of appeal on 18 October 2013 challenging the dismissal of the contract claim and the non-imposition of a penalty. The Body Shop challenged the validity of the notice of appeal on the ground that it had been filed outside the 30 day period prescribed by s 109(2)(a) of the Magistrates’ Court Act 1989 (‘Magistrates’ Court Act’).

In light of the issues which fall for determination in the present proceedings, it is important to set out in some detail the history of the proceedings in the Magistrates’ Court. Mr Cowdery commenced his claim in the Magistrates’ Court by complaint and statement of claim filed 1 May 2012. The claim was heard before Ginnane M on 18 and 19 February 2013. On 2 May 2013, his Honour handed down a document entitled ‘Reasons for Decision’. The reasons set out the basis upon which his Honour rejected the claim for breach of contract, and upheld the claim for redundancy payments under s 119 of the Fair Work Act.

Paragraph 50 of the decision includes the following:

As the plaintiff advanced no submissions in support of the imposition of a penalty, I therefore order than (sic) otherwise than for the relief granted the claim is dismissed.

Following the 2 May 2013 decision, Mr Cowdery’s solicitors made representations to the solicitors for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adidem Pty Ltd v Cowdery

Details

AGLC: Adidem Pty Ltd v Cowdery [2014] VSC 533
Case: [2014] VSC 533
Decision Date: 28 October 2014

CaseChat Overview and Summary

Adidem Pty Ltd, the appellant, sought leave to appeal from a decision of the Magistrates’ Court of Victoria, which had dismissed their claim for an injunction. The respondents, Cowdery, sought to prevent the appeal on the basis that the appellant had failed to comply with the 30-day period within which to lodge an appeal, as prescribed by statute. The case was heard by an Associate Judge who granted the appellant leave to appeal. The respondents then sought leave to appeal the Associate Judge’s decision. The Supreme Court of Victoria was required to determine whether the appellant’s failure to appeal within the prescribed period was due to exceptional circumstances, as provided for by the relevant statute and rules.

The court examined the statutory provision and rules that applied to the appellant’s failure to lodge an appeal within the prescribed time. It found that the appellant had not demonstrated any exceptional circumstances that would warrant an extension of the appeal period. The court also considered the purpose of the statutory provisions and rules, which was to ensure that appeals were dealt with promptly and efficiently. The court held that the appellant’s failure to comply with the prescribed period was not due to exceptional circumstances, and therefore, the appeal was not permitted.

The court dismissed the respondents’ application for leave to appeal the Associate Judge’s decision. The court found that the Associate Judge had not erred in granting leave to appeal, as the appellant had demonstrated that there were arguable grounds for appeal. The court held that the appellant’s failure to appeal within the prescribed period was not a sufficient ground to prevent the appeal. The court emphasised the importance of ensuring that appeals were dealt with promptly and efficiently, but also recognised that there may be circumstances where an extension of time may be appropriate.

No further orders were made by the court. The respondents’ application for leave to appeal the Associate Judge’s decision was dismissed. The appellant’s appeal to the Supreme Court of Victoria would proceed as scheduled.

Orders