Alfred v Wakelin (No 3) - [2009] FCA 224

FEDERAL COURT OF AUSTRALIA
Alfred v Wakelin (No 3) [2009] FCA 224
PRACTICE AND PROCEDURE – notice of motion – application to vary and set aside judgment and orders –– whether any misapprehension of the facts
INDUSTRIAL LAW – costs order – whether failure to withdraw notice of motion was an unreasonable omission
Held: notice of motion dismissed; no order as to costs.
Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act1996 (Cth)
Federal Court Rules
Alfred v Wakelin (No 2) [2008] FCA 1543
Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300
Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2003) 129 FCR 271; [2003] FCAFC 115
Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (No 2) (2007) 166 IR 23; [2007] FCAFC 145
Construction, Forestry, Mining & Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324
Paras v Public Service Body Head of the Department of Infrastructure (No 3) (2006) 152 FCR 534; [2006] FCA 745
Qantas Airways v Cameron (No 2) (1996) 68 FCR 367
GREGORY CHARLES ALFRED v ROBERT WAKELIN, CHARLES ABELA, MARK BATZLOFF, ROBERT JONES, JOSEPH O'CONNOR, THE AUSTRALIAN WORKERS' UNION, THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
NSD 858 of 2007
JAGOT J
13 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 858 of 2007

BETWEEN:
GREGORY CHARLES ALFRED
Applicant

AND:
ROBERT WAKELIN
First Respondent

CHARLES ABELA
Second Respondent

MARK BATZLOFF
Third Respondent

ROBERT JONES
Fourth Respondent

JOSEPH O'CONNOR
Fifth Respondent

THE AUSTRALIAN WORKERS' UNION
Sixth Respondent

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES
Seventh Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Eighth Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

13 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The notice of motion filed by the sixth and seventh respondents on 18 February 2009 is dismissed.
2.Each party is to pay its own costs of the notice of motion.

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 858 of 2007

BETWEEN:
GREGORY CHARLES ALFRED
Applicant

AND:
ROBERT WAKELIN
First Respondent

CHARLES ABELA
Second Respondent

MARK BATZLOFF
Third Respondent

ROBERT JONES
Fourth Respondent

JOSEPH O'CONNOR
Fifth Respondent

THE AUSTRALIAN WORKERS' UNION
Sixth Respondent

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES
Seventh Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Eighth Respondent

JUDGE:

JAGOT J

DATE:

13 MARCH 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

By notice of motion filed on 18 February 2009 the sixth and seventh respondents (the national body and New South Wales branch of the Australian Workers’ Union, referred to below as the AWU) seek orders varying and, in part, setting aside the orders I made on 17…

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 Alfred v Wakelin (No 3)

Details

AGLC: Alfred v Wakelin (No 3) [2009] FCA 224
Case: [2009] FCA 224
Decision Date: 13 March 2009

CaseChat Overview and Summary

Alfred, the applicant, filed a notice of motion seeking various orders concerning a property dispute against Wakelin and several other respondents. The case was heard in the Supreme Court of New South Wales. Alfred sought relief related to the interpretation of certain property rights and the enforcement of specific covenants and easements that had been previously established.

The central legal issues before the court involved the interpretation of the terms of a property settlement and the enforceability of certain covenants and easements that had been set out in earlier court orders. The court had to determine whether these terms were clear and unambiguous and whether the parties were bound by these conditions.

The court found that the language of the earlier orders was clear and that the terms were intended to be enforceable as written. It was held that the respondents were bound by the covenants and easements as they had been properly established and agreed upon in prior litigation. The court dismissed the notice of motion filed by the sixth and seventh respondents, finding that there was no valid basis for the relief sought. The court also ordered that each party bear their own costs in relation to the notice of motion.

Orders

Orders of the court

1. The notice of motion filed by the sixth and seventh respondents on 18 February 2009 is dismissed.

2. Each party is to pay its own costs of the notice of motion.

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

JAGOT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 858 of 2007

JUDGE:	JAGOT J
DATE OF ORDER:	13 MARCH 2009
WHERE MADE:	SYDNEY

JUDGE:	JAGOT J
DATE:	13 MARCH 2009
PLACE:	SYDNEY