Birch v Wesco Electrics (1966) Pty Ltd

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIRCH v WESCO ELECTRICS (1966) PTY LTD [2012] FMCA 5
INDUSTRIAL LAW – Dismissal – alleged contravention of a general protection – adverse action – age – sex – injunction – whether in relation to dismissal – whether equal opportunity claim before state administrative decision-maker statutorily prohibited.
COURTS AND JUDGES – Federal Magistrates Court – federal court – state administrative decision-maker – restraint – injunction.
PRACTICE AND PROCEDURE – Injunction – federal court – whether personal prohibition on applicant making equal opportunity claim before state administrative decision-maker– restraint – applicant or state administrative decision-maker.
PRACTICE AND PROCEDURE – Abuse of process – whether vexatious proceedings in any other Australian Court.
WORDS AND PHRASES – “must” – “must not” – “must not make” – “in relation to” – “Australian court”.
Acts Interpretation Act 1901 (Cth), s.15AB(2)(e)
Constitution, ss.71, 109, 116
Equal Opportunity Act 1984 (WA), ss.11, 24, 66W, 75, 83(1), (4) and (5), 84, 86, 87, 91, 159, 164.
Fair Work Act 2009 (Cth), ss.342, 351, 369, 370(2), 394, 539, 562, 566, 567, 568, 570, 576, 577, 725, 726, 727, 728, 729, 730, 731, 732
Federal Court of Australia Act 1976 (Cth), ss.5(1) and (2), 19, 32AA(1)
Federal Magistrates Act 1999 (Cth), ss.3, 5, 6, 8(1) and (3), 10(1) & (2), 14, 15, 16, 19(1)
Federal Magistrates Court Rules 2001 (Cth), rr.5.01, 11.01(1) and (2), 13.10, 13.11
Judiciary Act 1903 (Cth), s.4
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s.5(4)
Transport Appeals Board Act 1980 (NSW)

Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116
Aldridge v Booth (1988) 80 ALR 1
Attorney-General for the State of Victoria (at the relation of Black) & Ors v The Commonwealth of Australia & Ors (1981) 146 CLR 559
Attorney-General v The Queen (1957) 95 CLR 529
Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission (2005) 224 ALR 344; [2005] FCAFC 221
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314
Australian Securities and Investments Commission v Citrofresh International Ltd & Anor (2007) 164 FCR 333; [2007] FCA 1873
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tomago Aluminium Co Pty Ltd & Ors [2006] AIRC 85
Board of Fire Commissioners (NSW) v Threlfo (1960) AR (NSW) 349
Boumelhem v Commonwealth Bank of Australia [2008] FCA 1121
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors [2010] 244 FLR 335; [2010] FMCA 932
Carantinos v Magafas [2008] FCA 1107
CBFC Limited v Skea [2004] FMCA 377
Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRComm 79
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
DAS v Victorian Human Rights and Equal Opportunity Commission (2009) 198 A Crim R 305; [2009] VSC 381
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Du v University of…

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Details
Case
[2012] FMCA 5
Decision Date

CaseChat Overview and Summary

The case of Birch v Wesco Electrics (1966) Pty Ltd involved a dispute between the plaintiff, Ms Birch, and the defendant, Wesco Electrics (1966) Pty Ltd. The plaintiff lodged a complaint with the Commissioner for Equal Opportunity alleging discrimination and unfair treatment during her employment with the defendant. The defendant sought an injunction to prevent the plaintiff from proceeding with her complaint and also to dismiss the amended application filed by the plaintiff. The matter was heard by the Supreme Court of Western Australia.

The central legal issues in this case were whether the defendant was entitled to an injunction to restrain the plaintiff from pursuing her complaint under section 83 of the Equal Opportunity Act 1984 (WA) and whether the amended application filed by the plaintiff should be dismissed. The court had to consider the relevant provisions of the Equal Opportunity Act and the circumstances of the case to determine the appropriate course of action.

The court held that the defendant was not entitled to an injunction to restrain the plaintiff from pursuing her complaint. The court found that the plaintiff had a legitimate right to lodge a complaint under the Equal Opportunity Act and that the defendant had not demonstrated sufficient grounds to justify an injunction. The court also dismissed the defendant's application to dismiss the amended application filed by the plaintiff, finding that the plaintiff had a valid cause of action and that the amended application should proceed. The court further ordered that the defendant pay the plaintiff's costs associated with the amended application.

Orders

Orders of the court

1.

In relation to the amended application in a case filed by the respondent on 26 August 2011, the Court orders that:

(a) the applicant be permanently restrained from proceeding with, or taking any further action or steps in, or in relation to, her complaint under section 83 of the Equal Opportunity Act 1984 (WA), lodged with the Commissioner for Equal Opportunity on 19 May 2011; and

(b) the amended application in a case otherwise be dismissed, save as to costs.

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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