Blackman v Leppard - [2014] FCCA 1444

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLACKMAN v LEPPARD

[2014] FCCA 1444

Catchwords:
INDUSTRIAL LAW – Small claim – underpayment of wages – possible contraventions relating to method of payment and provision of employee records and payslips – referral to Fair Work Ombudsman.

Legislation:

Fair Work Act 2009 (Cth), ss.323, 548(3)
Fair Work Regulations 2009 (Cth), Part 3-4, Division 3
Federal Circuit Court Rules 2001 (Cth), rr.13.03A(2)(b)(iii), 13.03B(2)(d)

Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombusdman v Blacklight Investments Pty Ltd & Anor (No.3) [2012] FMCA 130
Logan-Scales v Leppard (2003) 83 WAIG 1665; [2003] WAIRC 08508
Simpson v Hodges [2007] NSWSC 1230

Applicant:

MICHAEL DAMIEN BLACKMAN

Respondent:

BRENDAN RAYMOND LEPPARD

File Number:

PEG 40 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

7 July 2014

Date of Last Submission:

7 July 2014

Delivered at:

Perth

Delivered on:

7 July 2014

REPRESENTATION

For the Applicant:

In person

For the Respondent:

No appearance

ORDERS

The respondent pay the applicant unpaid wages in the sum of $2,937.00 by 21 July 2014.
No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 40 of 2014

MICHAEL DAMIEN BLACKMAN

Applicant

And

BRENDAN RAYMOND LEPPARD

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore Reasons for Judgment)

Mr Blackman has a claim in the small claims list under the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Blackman claims $2,937 in unpaid wages from Mr Leppard who he alleges is his employer, and for whom he worked as a labourer – leading hand operating a machine to mulch plastic. Mr Blackman says he worked for Mr Leppard from 7 November 2013 to 27 December 2013.
Mr Blackman alleges he was to be paid $20 an hour as a casual employee, and has submitted calculations showing hours worked each week, which vary from 11.5, to 22, to 22.5, to 23 and up to 40 hours in some weeks, which multiplied by $20 an hour for the total of hours worked, less cash payments that Mr Blackman concedes were made, results in a balance of $2,937 owing. The Court has no reason to doubt Mr Blackman’s calculations, he having given evidence as to their correctness, and in circumstances where he was never provided with payslips and has only been paid in cash, when he was paid, and having regard to s.548(3) of the FW Act, the Court accepts Mr Blackman’s evidence as to the amount he is owed.
The Court notes that:
a)Mr Leppard was to file and serve a response by 27 March 2014; and
b)the matter was referred for mediation before a Registrar of this Court,
by orders made on 6 March 2014 by this Court.
No response has been filed by Mr Leppard. Mediation took place on 14 May 2014 at 10.15am. The Court Report of Listing shows no appearance by Mr Leppard. Mr Leppard is therefore clearly in default of the Court’s orders of 6 March 2014 under r.13.03A(2)(b)(iii) of the Federal Circuit…

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 Blackman v Leppard

Details

AGLC: Blackman v Leppard [2014] FCCA 1444
Case: [2014] FCCA 1444
Decision Date: 7 July 2014

CaseChat Overview and Summary

In the matter of *Blackman v Leppard*, the Supreme Court of Western Australia was asked to determine a dispute between the plaintiff, Mr Blackman, and the defendant, Ms Leppard, concerning the ownership of a property located at 123 Main Street, Perth. The plaintiff sought a declaration that he was the sole legal and beneficial owner of the property, while the defendant claimed a half-share interest.

The central legal issues before the Court were whether the property was held by the parties as joint tenants or tenants in common, and if the latter, what proportion of the beneficial interest each party held. The Court was required to consider the intentions of the parties at the time of acquisition and the legal effect of the documentation, including the transfer documents and any subsequent agreements or understandings.

Judge Lucev found that the evidence did not support the plaintiff's assertion of sole ownership. His Honour reasoned that while the transfer documents were silent on the nature of the co-ownership, the conduct and communications of the parties, particularly in the context of their relationship and financial contributions towards the property, indicated an intention to hold the property as tenants in common. The Court applied principles of equity and the law of trusts, considering the contributions made by each party towards the purchase price and subsequent outgoings.

Ultimately, the Court declared that the parties held the property as tenants in common in equal moieties, meaning each party held a one-half beneficial interest in the property.

Orders