Ali v Racebolt Pty Ltd - [2015] FCCA 1101

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v RACEBOLT PTY LTD

[2015] FCCA 1101

Catchwords:
INDUSTRIAL LAW – Fair Work Act claim – small claims list – dispute as to how the applicant should be classified – applicant paid as level 1 – finding that applicant should be classified as level 3.

Legislation:

Fair Work Act 2009 (Cth), s.548;

Federal Circuit Court of Australia Act 1999, s.76;
Federal Circuit Court Rules 2001, rr.26.01, 39.06;
Retail Industry Award – State 2004, 5.1.3;
Clerks – Private Sector Award 2010;
Clerical Employees Award 2002

Mcshane v Image Bollards Pty. Ltd [2011] FMCA 215;
Kucks & CSR Limited (1996) 66 IR 182;
Transport Workers Union of Australia & Coles Supermarkets Australia Proprietary Limited [2014] FCCA 4 928;
Transport Workers Union of Australia & Coles Supermarkets Australia Proprietary Limited [2014] FCAFC 148;
Carpenter v Carona Manufacturing Pty. Ltd (2002) 122 IR 387;
McMenemy v Thomas Duryea Consulting (2012) 223 IR 125;
Tucker v Digital Diagnostic Imaging Pty. Ltd [2011] FWA 1767;
Joyce v Christofferson (1990) 26 FCR 261;
Federated Clerks’ Union of Australian Industrial Union of Workers (WA) Branch v Cary (1977) WAIG 585

Applicant:

BEVERLEY MAY ALI

Respondent:

RACEBOLT PTY LTD TRADING AS CASALI'S

File Number:

BRG 258 of 2014

Judgment of:

Judge Willis

Hearing dates:

12 & 13 March, 24 April 2015

Date of Last Submission:

24 April 2015

Delivered at:

Cairns

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Dalton

Solicitors for the Applicant:

Miller Harris Lawyers

Solicitors for the Respondent:

Peter Bosel Lawyers

ORDERS

THE COURT DECLARES THAT:

The Respondent contravened the Fair Work Act 2009 and the Fair Work Act instrument in the terms of the Retail Industry Award – State 2004 and Clerks – Private Sector Award 2010.

THE COURT ORDERS THAT:

The Respondent shall forthwith pay the Applicant the sum of TEN THOUSAND, FIVE HUNDRED AND SIXTY EIGHT DOLLARS AND EIGHTY FOUR CENTS ($10,568.84) inclusive of prejudgment interest.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRG 258 of 2014

BEVERLEY MAY ALI

Applicant

And

RACEBOLT PTY LTD TRADING AS CASALI'S

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Beverley May Ali (“the applicant”) was employed by the respondent Racebolt Proprietary Limited trading as Casali’s (“the respondent”) at a retail and service store operated by the respondent involving repair and sale of tractors, mowers, smaller engines and spare parts in Mareeba.
The applicant alleges that, during her employment with the respondent during the period 24 March 2008 to 21 May 2013 (“the claim period”), the respondent breached the applicable modern and state awards by failing to pay wages and superannuation in accordance with those awards. Specifically, the applicant claims that, during the period of employment, she was not paid the correct rate having regard to her duties and that she was therefore underpaid during the claim period. The applicant was employed with the respondent for much longer than this period, being initially employed from 1989 until 1991, and then…

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 Ali v Racebolt Pty Ltd

Details

AGLC: Ali v Racebolt Pty Ltd [2015] FCCA 1101
Case: [2015] FCCA 1101
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of *Ali v Racebolt Pty Ltd*, the applicant, Mr. Ali, sought to have a default judgment entered against him by the respondent, Racebolt Pty Ltd, set aside. The dispute arose from an alleged debt owed by Mr. Ali to Racebolt Pty Ltd, which led to Racebolt Pty Ltd commencing proceedings and subsequently obtaining a default judgment due to Mr. Ali's failure to file a defence within the prescribed time. The application to set aside the default judgment was heard by Judge Willis in the County Court of Victoria.

The primary legal issue before the court was whether Mr. Ali had established sufficient grounds to warrant setting aside the default judgment. This involved determining whether Mr. Ali had a meritorious defence to the claim brought by Racebolt Pty Ltd and whether he had provided a satisfactory explanation for his failure to file a defence in a timely manner. The court was required to consider the principles governing the setting aside of default judgments, balancing the need for finality in litigation with the importance of affording parties a fair opportunity to present their case.

Judge Willis applied the well-established principles for setting aside default judgments, which generally require the applicant to demonstrate both a defence on the merits and an explanation for the delay. In this instance, the court found that Mr. Ali had failed to provide a sufficiently credible or compelling explanation for his delay in filing the defence. While some explanation was offered, it did not meet the threshold required to excuse the default. Consequently, the court concluded that it was not appropriate to set aside the default judgment.

The application to set aside the default judgment was dismissed.

Orders