Belcher v Scruton Property Pty Ltd (No 3) - [2023] FedCFamC2G 10

Federal Circuit and Family Court of Australia
(DIVISION 2)
Belcher v Scruton Property Pty Ltd (No 3) [2023] FedCFamC2G 10

File number(s): BRG 222 of 2020

Judgment of: JUDGE TONKIN

Date of judgment: 18 January 2023

Catchwords: INDUSTRIAL LAW – Application in a proceeding (Fair Work Div 2.4 Exemption) – whether order 1 of the Orders made on 18 August 2022 should be varied or set aside – application adjourned – costs to be assessed

Legislation:
Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Federal Circuit Court Rules 2001

Cases cited:
Belcher v Scruton Property Pty Ltd [2022] FedCFamC2G 67

Massalski & Riley [2022] FedCFamC1A 128

Division: Division 2 General Federal Law

Number of paragraphs: 14

Date of last submission/s: 16 December 2022

Date of hearing: 14 June 2022

Place: Brisbane

Counsel for the Applicant: Mr Amerena

Solicitor for the Applicant: Workplace Law Group

Counsel for the Respondent: Mr Hogg

Solicitor for the Respondent: McInnes Wilson Lawyers
ORDERS

BRG 222 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GUY ANDREW BELCHER

Applicant

AND:
SCRUTON PROPERTY PTY LTD

Respondent

order made by:

JUDGE TONKIN

DATE OF ORDER:

18 January 2023

THE COURT ORDERS THAT:
1.The matter is listed for hearing on 6 February 2023 for assessment of costs.
2.In the event that the parties reach agreement as to quantum of costs prior to 6 February 2023 the parties shall advise the Court and the hearing shall be vacated.
3.Costs are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN

The applicant in these proceedings filed an originating application on 16 April 2020 seeking declarations alleging that the respondent Scruton Property Group Pty Ltd (“Scruton Property”) contravened the Fair Work Act 2009 (Cth) (“FWA”) in failing to pay the applicant for work performed between June 2017 and 29 June 2018 and additional entitlements. He sought to recover all accrued salary and bonuses in accordance with section 323 (1) of the FWA $80,769 plus interest, his leave entitlements of $5769.23 plus interest, payment in lieu of notice of $2884.61 plus interest and superannuation contributions of $7673.
The respondent Scruton Property filed its response on 20 May 2020 seeking the application be dismissed pursuant to rule 4.03 (1) (c) of the Federal Circuit Court Rules 2001 as to the whole of the relief claimed by the applicant on the basis that the application was without reasonable cause. The respondent asserted that the applicant was not an employee and had never been an…

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: [2023] FedCFamC2G 10
Decision Date

CaseChat Overview and Summary

The applicant Guy Andrew Belcher filed an originating application on 16 April 2020 seeking declarations alleging that the respondent Scruton Property Group Pty Ltd contravened the Fair Work Act 2009 (Cth) in failing to pay him for work performed between June 2017 and 29 June 2018 and additional entitlements. Belcher sought recovery of accrued salary and bonuses, leave entitlements, payment in lieu of notice, and superannuation contributions. Scruton Property responded by seeking dismissal of the application, asserting that Belcher was not an employee. After a trial, judgment was delivered on 19 April 2022 dismissing Belcher’s application. Belcher subsequently filed an application in a proceeding seeking to vary an order regarding costs. Belcher argued that the Court should set aside or vary the order to replace the word “taxed” with the words “as otherwise required” and that the respondent should pay the applicant’s costs on an indemnity basis or a “standard basis.” The legal issues before the Court were whether the expression “costs as agreed or taxed” requires an assessment of costs and whether the Court should vary the order to reflect the correct date for the commencement of costs. The Court found that “costs taxed” requires an assessment of costs, and some evidence is required regarding costs incurred. The Court noted that the respondent did not provide any itemised bill of costs on the costs application nor any evidence to assist in assessing costs. The Court also found that the order made by the Court anticipated that the parties would reach agreement to save spending more money on litigation. However, the parties had not reached an agreement. Therefore, the Court ordered that the matter is listed for hearing on 6 February 2023 for assessment of costs by the Court. In the event that the parties reach an agreement prior to that date, the parties shall advise the Court, and the hearing date shall be vacated. The costs of this application are reserved.

The Federal Circuit and Family Court of Australia (Division 2) ordered that the matter is listed for hearing on 6 February 2023 for assessment of costs. In the event that the parties reach an agreement prior to that date, the parties shall advise the Court, and the hearing date shall be vacated. The costs of this application are reserved.

Orders