Brown v Premier Pet

[2012] FMCA 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROWN v PREMIER PET [2012] FMCA 830

INDUSTRIAL LAW – Nature of claim for reinstatement – claim personal to employee and does not vest in trustee in bankruptcy.

BANKRUPTCY – Property – property of the bankrupt – property divisible among the bankrupt’s creditors – whether claim for compensation, pecuniary penalty and reinstatement vests in employee’s trustee in bankruptcy – claim for reinstatement not property divisible among the bankrupt’s creditors.

Bankruptcy Act 1966, ss.5, 58(1)(b), 58(6), 116, 116(2)(g)
Fair Work Act 2009, ss.365, 369

Cox v Journeaux (1935) 52 CLR 713
Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45
Ex parte Vine; Re Wilson (1878) 8 Ch D 364
Fuller v Beach Petroleum NL (1993) 43 FCR 60
Geia v Palm Island Aboriginal Council (1999) 152 FLR 135
Griffiths v Civil Aviation Authority (1995) 137 ALR 521
Leaman v The Salvation Army (Victoria) Property Trust as Trustee for The Salvation Army (Vic) Social Work [2011] FMCA 1037
Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197
Randall v Deputy Commissioner of Taxation (2008) 174 FCR 441
Re Pelechowski, in the matter of Pelechowski v NSW Land & Housing Commission [2000] FCA 233

Applicant: ADAM RICHARD BROWN

Respondent: PREMIER PET T/AS BAY FISH

File Number: BRG 753 of 2011

Judgment of: Jarrett FM

Hearing date: 27 October 2011

Date of Last Submission: 27 October 2011

Delivered at: Brisbane

Delivered on: 13 September 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Pratt

Solicitors for the Respondent: Hopgood Ganim

ORDERS

1. The claims for compensation and pecuniary penalty claimed in Part H of the Form 2 “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” filed on 22 August, 2011 are struck out.

2. Otherwise the application for summary dismissal in the Response filed on 9 September, 2011 is dismissed.

3. The application be listed for further directions in the Federal Magistrates Court of Australia at Brisbane at 9.30am on 20 September, 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 753 of 2011

ADAM RICHARD BROWN

Applicant

And

PREMIER PET T/AS BAY FISH

Respondent

REASONS FOR JUDGMENT

1. This is the hearing of an interlocutory application by the respondent to have Mr Brown’s proceedings dismissed summarily because he does not have the requisite standing to pursue the application.

2. By his application filed on 22 August, 2011 Alan Brown seeks orders against the respondent pursuant to the Fair Work Act 2009 (Cth) for certain contraventions of that Act.

3. Initially the proceedings were commenced in the small claims list of this Court, but Mr Brown confirmed that he made that request by mistake. Accordingly, parties proceeded on the basis the matter was not being dealt with under the Court’s small claims procedures.

4. In these proceedings Mr Brown seeks compensation (unspecified), reinstatement and that a pecuniary penalty be imposed upon the respondent for dismissing him from his employment with the respondent in contravention of certain general…