Buchanan v Kontractor Pty Ltd - [2020] FCCA 3331

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUCHANAN v KONTRACTOR PTY LTD

[2020] FCCA 3331

Catchwords:
INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – workplace rights – adverse action – dismissal – application for summary dismissal of proceedings.

STATUTES – Acts of parliament – interpretation – particular words and phrases – specific interpretations – law of the Commonwealth.

Legislation:

Fair Work Act 2009 (Cth), ss. 11, 12, 340, 341, 342(1), 343, 351

Federal Court of Australia Act 1976 (Cth) ss. 17A, 31A

Sex Discrimination Act 1984 (Cth), ss. 4, 28B(1), 28B(2), 28B(3), 28B(6)

Federal Circuit Court Rules 2004 (Cth) r. 13.10(b)

Cases cited:

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Paramasivam v University of New South Wales [2007] FCAFC 176
Prior v Wood [2017] FCA 193
PZ Cussons (International) Limited v Rosa Dora Imports Pty Ltd [2007] FCA 1642
Rana v Commonwealth [2013] FCA 189
Tattsbet Ltd v Morrow (2015) 233 FCR 46

Applicant:

ALICIA JANE BUCHANAN

Respondent:

KONTRACTOR PTY LTD

File Number:

BRG 840 of 2019

Judgment of:

Judge Jarrett

Hearing date:

19 June 2020

Date of Last Submission:

19 June 2020

Delivered at:

Brisbane

Delivered on:

8 December 2020

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Mr Ritchie

Solicitors for the Respondent:

New Era Lawyers

ORDERS

The application filed on 26 September, 2019 and the amended application (form 4) filed on 21 February, 2020 be dismissed.

These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 840 of 2019

ALICIA JANE BUCHANAN

Applicant

And

KONTRACTOR PTY LTD

Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application by the respondent for an order that the amended application filed 21 February, 2020 be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) or alternatively, that each of the claims for relief in the proceeding be dismissed pursuant to that rule. The respondent argues that “the applicant has no reasonable prospect of successfully prosecuting the proceeding on the facts and causes of action pleaded and it is, therefore, vexatious and an abuse of process”.
The issues disclosed by the submission of each of the parties is whether, in circumstances where the applicant was not ever an employee of the respondent, the Sex Discrimination Act 1984 (Cth) is a workplace law for the purposes of the Fair Work Act 2009 (Cth). I have concluded tha it is not. For the following reasons the application for summary dismissal succeeds and the applicant’s principal application must be dismissed.

The claim

In the proceedings, the applicant claims compensation for breaches of the Fair Work Act 2009 (Cth). She claims that the respondent took adverse action against her by terminating a services contract between she and the respondent…

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 Buchanan v Kontractor Pty Ltd

Details

AGLC: Buchanan v Kontractor Pty Ltd [2020] FCCA 3331
Case: [2020] FCCA 3331
Decision Date: 8 December 2020

CaseChat Overview and Summary

In *Buchanan v Kontractor Pty Ltd*, heard by Judge Jarrett in the Federal Circuit Court of Australia, the applicant, Mr. Buchanan, brought proceedings against his former employer, Kontractor Pty Ltd, alleging adverse action in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). The employer sought summary dismissal of these proceedings.

The central legal issue before the Court was whether Mr. Buchanan's application disclosed a cause of action that had a real prospect of success, or alternatively, whether it was an abuse of process. Specifically, the Court had to determine if the factual allegations pleaded by Mr. Buchanan, when viewed in the most favourable light, could establish a contravention of the *Fair Work Act*.

Judge Jarrett reasoned that the applicant's claim was fundamentally based on a misunderstanding of his employment status and the nature of the alleged adverse action. The Court found that the pleaded facts did not support a claim that Mr. Buchanan had been dismissed or subjected to any adverse action for a prohibited reason under the *Fair Work Act*. The application was therefore considered to be without merit and an abuse of process.

Consequently, the Court ordered the dismissal of the application filed on 26 September 2019 and the amended application filed on 21 February 2020.

Orders

Orders of the court

ORDERS

1. The application filed on 26 September, 2019 and the amended application (form 4) filed on 21 February, 2020 be dismissed.

These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001

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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