Affinity Health Pty Limited v Keene - [2009] FCA 643

FEDERAL COURT OF AUSTRALIA

Affinity Health Pty Limited v Keene [2009] FCA 643

CORRIGENDUM

AFFINITY HEALTH PTY LIMITED v KAREN KEENE

NSD 2689 of 2008

PERRAM J
15 JUNE 2009 (CORRIGENDUM 17 JUNE 2009)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2689 of 2008

ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATE’S COURT

BETWEEN:
AFFINITY HEALTH PTY LIMITED
Appellant

AND:
KAREN KEENE
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

15 JUNE 2009

WHERE MADE:

SYDNEY

CORRIGENDUM

On the Orders page delete “On Appeal from the Federal Magistrates Court of Australia” and insert “On Appeal from the Chief Industrial Magistrates Court”.
On the Reasons for Judgement page delete “On Appeal from the Federal Magistrates Court of Australia” and insert “On Appeal from the Chief Industrial Magistrates Court”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated: 17 June 2009

FEDERAL COURT OF AUSTRALIA

Affinity Health Pty Limited v Keene [2009] FCA 643

Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (WorkChoices) Act 2005 (Cth)
Industrial Relations Act 1996 (NSW)

Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211
Amcor Ltd v Construction, Forestry, Mining and Engineering Union (2005) 222 CLR 241
Automatic Fire Sprinklers Pty Limited v Watson (1946) 72 CLR 435
Blue Circle Southern Cement Ltd v Warren (1996) 67 IR 225
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Clark v Pittwater RSL Club Ltd (1988) 84 IR 309
Kucks v CSR Ltd (1996) 66 IR 182
Tokyo Network Computing Pty Ltd v Tanaka [2004] NSWCA 263
Termination Change and Redundancy Case (1984) 8 IR 34
Visscher v Australian Industrial Relations Commission [2007] FCAFC 206
Woolworths (South Australia) Pty Ltd v Russian (1996) 66 IR 13

AFFINITY HEALTH PTY LIMITED v KAREN KEENE

NSD 1689 of 2008

PERRAM J
15 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1689 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
AFFINITY HEALTH PTY LIMITED
Appellant

AND:
KAREN KEENE
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

15 JUNE 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1689 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
AFFINITY HEALTH PTY LIMITED
Appellant

AND:
KAREN KEENE
Respondent

JUDGE:

PERRAM J

DATE:

15 JUNE 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

The respondent, Ms Keene, is a nurse. For a number of years she worked at St George’s Private Hospital in the senior nursing position of “Clinical Nurse Consultant – Urology”. There was a practice of urologists at…

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.

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Details

Case: [2009] FCA 643
Decision Date: 15 June 2009

CaseChat Overview and Summary

Affinity Health Pty Limited sought an appeal against a decision of the Federal Circuit Court, which ruled in favour of Ms Keene in a dispute over unpaid wages. The appeal was heard in the Federal Court of Australia, where it was argued that the primary judge erred in his interpretation of the Fair Work Act 2009 and in his assessment of the evidence. The court was required to determine whether the primary judge's interpretation of the Fair Work Act was correct, and whether he had erred in his assessment of the evidence. The court found that the primary judge had not erred in his interpretation of the Act or in his assessment of the evidence. The appeal was dismissed.

The court found that the primary judge had correctly interpreted the Fair Work Act, and that the appellant's arguments were based on a misinterpretation of the Act. The court also found that the primary judge had properly assessed the evidence and had reached a reasonable conclusion based on that evidence. The court held that the primary judge's decision was supported by the evidence and was not open to challenge on the grounds argued by the appellant. The appeal was therefore dismissed, and the decision of the primary judge was upheld.

Orders

Orders of the court

The appeal be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: PERRAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2689 of 2008

BETWEEN:	AFFINITY HEALTH PTY LIMITED Appellant
AND:	KAREN KEENE Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	15 JUNE 2009
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1689 of 2008

JUDGE:	PERRAM J
DATE:	15 JUNE 2009
PLACE:	SYDNEY