FEDERAL COURT OF AUSTRALIA
Barnes v Hatch Associates Pty Ltd [2017] FCA 434
Appeal from: Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375 File numbers: QUD 60 of 2016
QUD 180 of 2016Judge: LOGAN J Date of judgment: 28 April 2017 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – workplace rights and responsibilities – general protections – adverse action – whether adverse action taken for prohibited reason – prejudicial alteration of position – whether Jones v Dunkel (1959) 101 CLR 298 inference could be drawn in relation to alleged failure of respondent to call certain evidence – relevant decision-makers called by employer – Jones v Dunkel inapplicable
APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – rehearing – trial judge’s assessment of credibility of witnesses – applicable principles in respect of exercise of appellate jurisdiction in relation to credibility assessment
COSTS – procedural fairness – departure by court from understanding engendered in parties by representation of judge’s associate – resultant denial of procedural fairness
Legislation: Fair Work Act 2009 (Cth) ss 340, 342, 361, 570
Federal Court of Australia Act 1976 (Cth) s 24
Federal Circuit Court of Australia Act 1999 (Cth) s 76
Veterans’ Entitlements Act 1986 (Cth)
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
British Aircraft Corporation Ltd v Austin [1978] IRLR 332
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169
Fox v Percy (2003) 214 CLR 118
International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Jones v Australian Competition and Consumer Commission (2010) 189 FCR 390
Jones v Dunkel (1959) 101 CLR 298
Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Shrestha v Migration Review Tribunal (2015) 229 FCR 301
SZRPT v Minister for Immigration and Border Protection [2014] FCA 24
Warren v Coombes (1979) 142 CLR 531
Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666
Date of hearing: 1 - 3 August 2016 Date of last submissions: 6 September 2016 Registry: Queensland Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 142 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr LM Copley Solicitor for the Respondent: Milner Lawyers
Table of Corrections 28 April 2017 In the Appearance on the cover page Counsel for the Respondent has been amended from Mr M Copley to Mr LM Copley ORDERS
QUD 60 of 2016 BETWEEN: ANTHONY JOSEPH BARNES
Appellant
AND: HATCH ASSOCIATES PTY LTD ACN 008 630 500
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
28 APRIL 2017
THE COURT ORDERS THAT:
1.The appeal against the order of 18 December 2015 dismissing the appellant’s…
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- [2017] FCA 434
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CaseChat Overview and Summary
The legal issues addressed by the court included whether the inference under Jones v Dunkel could be drawn in the circumstances of the case, given that the relevant decision-makers were called by the employer. Additionally, the appeal scrutinized the trial judge's assessment of the credibility of witnesses and the exercise of appellate jurisdiction in relation to such assessments. The court also examined the procedural fairness in the handling of the costs issue, particularly whether the court's departure from an understanding engendered by the judge's associate led to a denial of procedural fairness.
In its reasoning, the court determined that the Jones v Dunkel inference was inapplicable as the employer had called the relevant decision-makers. Regarding the trial judge's assessment of credibility, the court noted that appellate courts generally do not interfere with such assessments unless there is a clear error of judgment. However, the court found that the handling of costs was procedurally unfair due to the departure from the understanding provided by the judge's associate. Consequently, the appeal was allowed in respect of the costs order, and the matter was remitted to the Federal Circuit Court for further consideration of the costs application.
The orders of the court included allowing the appeal against the costs order made on 5 February 2016 and setting aside that order. The question of what order, if any, should be made in respect of the respondent's application for costs was remitted to the Federal Circuit Court for hearing and determination according to law, with any necessary interlocutory directions.
Orders
Orders of the court
1. The appeal against the order made on 5 February 2016 in respect of costs be allowed and the order made that day be set aside.
2. The question as to what order as to costs, if any, be made in respect of the respondent’s application for costs be remitted to the Federal Circuit Court for hearing according to law and in accordance with such interlocutory directions as that court may make.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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