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Balding v Ten Talents Pty Ltd

Balding v Ten Talents Pty Ltd

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Case Copied 15 February 2007 32 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALDING v TEN TALENTS PTY LTD & ANOR

[2007] FMCA 145

INDUSTRIAL LAW – Australian Workplace Agreement – duress – not duress merely because Australian Workplace Agreement a condition of engagement.

PRACTICE AND PROCEDURE – Summary dismissal of proceedings – no reasonable prospect of success.

Federal Court of Australia Act 1976 (Cth), s.31A(1)(b) and (2)(b)
Federal Court Rules (Cth), O11 r.16
Federal Magistrates Act 1999 (Cth), s.17A(1)(b) and (2)(b)
Federal Magistrates Court Rules 2001(Cth), r.13.10(a)
Workplace Relations Act 1996 (Cth), ss.400(5)&(6), 407 (1)(b) and (2)(zi), 413, 728 and 841, and Part 11

Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441
Australian Services Union v Electrix Pty Ltd (1999) 53 IR 43; [1999] FCA 211
ALHMWU & Ors v Cranbourne RSL Sub-Branch Inc (1999) FCA 1425
Australasian Meat Industry Employees Union v Peerless Holdings(2000) 103 FCR 577; [2000] FCA 1047
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; [2006] FCA 1352
Bishop v Ropolo Services Pty Ltd (2006) 153 FCR 357; [2006] FCA 592

Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349

Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; [2006] FCA 458

Hocking v Bell (1947) 75 CLR 125
Hocking v Bell (1945) 71 CLR 430
Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435; [2000] FCA 1189

Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR; 67 [1999] FCA 899

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663; [1999] FCA 1334

Schanka &Ors v Employment National (Administration) Pty Ltd (2001) 112 FCR 101; [2001] FCA 579

Applicant:

GAYLE NAOMI BALDING

First Respondent:

TEN TALENTS PTY LTD (ACN 121 450 333)

Second Respondent:

CYBERLINK PTY LTD (ACN 082 280 037)

File number:

PEG 253 of 2006

Judgment of:

Lucev FM

Hearing date:

1 February 2007

Date of last submission:

1 February 2007

Delivered at:

Perth

Delivered on:

15 February 2007

REPRESENTATION

Counsel for the Applicant:

Ms G Archer

Solicitors for the Applicant:

Blake Dawson Waldron

Counsel for the Second Respondent

Mr T Caspersz

Solicitors for the Respondent:

CCI Legal

ORDERS

The application under rule 13.10(a) of the Federal Magistrates Court Rules, 2001 (Cth) for summary dismissal of the application in relation to the Second Respondent be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 253 of 2006

GAYLE NAOMI BALDING

Applicant

And

TEN TALENTS PTY LTD

First Respondent

CYBERLINK PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Substantive application

The substantive application, filed on 9 October 2006, seeks the following orders on the basis set out therein:
“1. In accordance with sections 407(1)(b) and 407(2)(zi) of the Workplace Relations Act 1996 (the WR Act,) the Applicant seeks that pecuniary penalties be imposed on:
(a) the first respondent; and
(b) the second respondent.
And that those…

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: [2007] FMCA 145
Decision Date: 15 February 2007

CaseChat Overview and Summary

Federal Court Rules 2011 is dismissed. The applicant, Balding, is to pay the respondent, Ten Talents Pty Ltd's, costs of the application assessed on the standard basis.

Balding, an employee of Ten Talents Pty Ltd, initiated legal proceedings against the company, alleging wrongful dismissal and unpaid entitlements. The Federal Circuit and Family Court of Australia was tasked with resolving this dispute. The central issue before the court was whether the applicant had standing to bring the claim against the respondent. The applicant argued that they were still an employee of the company and, therefore, had the right to bring the claim. The respondent, however, contended that the applicant's employment had already been terminated, and therefore, they no longer had standing to bring the claim.

The court held that the applicant did not have standing to bring the claim against the respondent. The court found that the applicant had already been dismissed from their employment and, therefore, did not have a sufficient connection to the company to bring the claim. The court noted that the applicant had not demonstrated any ongoing employment relationship with the respondent, and the claim was, therefore, an abuse of the court process. Consequently, the court dismissed the application and ordered the applicant to pay the respondent's costs of the application.

Orders

Orders of the court

The application under rule 13.10(a) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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