FEDERAL COURT OF AUSTRALIA
C v Commonwealth of Australia [2015] FCAFC 113
Citation: C v Commonwealth of Australia [2015] FCAFC 113 Parties: C v COMMONWEALTH OF AUSTRALIA File number: NSD 251 of 2015 Judges: TRACEY, BUCHANAN AND KATZMANN JJ Date of judgment: 21 August 2015 Catchwords: INDUSTRIAL LAW – adverse action – whether members of the Australian Defence Force “employees” within the meaning of the Fair Work Act 2009 (Cth) – consideration of the meaning of “ordinary meaning” of “employee”
PRACTICE AND PROCEDURE – application for summary judgment – whether applicant has no reasonable prospects of success – whether applicant has standing to commence or prosecute proceeding
Legislation: Constitution, ss 51 (xx), 51(xxix)
Defence (Personnel) Regulations 2002 (Cth), regs 8, 87(1), 87(2) 117, 572(1)
Defence Act 1903 (Cth)
Fair Work Act 2009 (Cth), ss 6, 9(5), 12, 13, 14, 30E(1), 30P, 335, 338, 342, 342(1), 351, 351(1), 351(3), 358, 545, 546, 570(1), 574, 596(4), 770, 772(1)(f), 776(1), 776(2), 768AB, 768AD, 776(3)(a), 778; Pts 3–1, 4–1, 5–1, 6–1, 6–3A
Federal Circuit Court of Australia Act 1999 (Cth), ss 17A, 39
Federal Circuit Court Rules 2001 (Cth), rr 8.02, 13.10(a)
Federal Court of Australia Act 1976 (Cth), ss 31A, 37AI, 37M
Federal Court Rules 2011 (Cth), rr 26.01(1)(a), 27.13(4)
Industrial Relations Act 1988 (Cth), ss 170, 170CA(1), 170CB, 170DE(1), 170DF(1)(f)
Police Service Act 1900Cases cited: China Navigation Company Limited v Attorney-General [1932] 2 KB 197 – cited
Commonwealth v Welsh (1947) 74 CLR 245 – cited
Coutts v Commonwealth of Australia (1985) 157 CLR 91 – citedDeyv Victorian Railway Commissioners (1949) 78 CLR 62 – cited
Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 – cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 – cited
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 – cited
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 – cited
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 – cited
Kaye v Attorney-General (Tas) (1956) 94 CLR 193 – cited
Konrad v Victoria (1999) 91 FCR 95 – distinguished
Marks v The Commonwealth (1964) 111 CLR 549 – cited
Millar v Bornholt (2009) 177 FCR 67 – cited
Mitchell v The Queen [1896] 1 QB 121 – cited
New South Wales v Commonwealth (2006) 229 CLR 1 – cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – cited
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 41 – cited
Spencer v The Commonwealth (2010) 241 CLR 118 – cited
White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 – citedDate of hearing: 6 August 2015 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Applicant: Dr C Birch SC and Ms P Lowson Solicitor for the Applicant: HIV/AIDS Legal Centre Counsel for the Respondent: Dr J Renwick…
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- Case
- [2015] FCAFC 113
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether the applicant had standing to bring the claim under the FW Act and whether the claim had any reasonable prospect of success. The Court examined the definition of "employee" under the FW Act and concluded that enlisted members of the Australian Defence Force are not employees within the ordinary meaning of the term, as they do not have employment contracts with the Commonwealth. The Court also considered the power of the Federal Circuit Court and the Federal Court to grant summary judgment if the applicant had no reasonable prospect of successfully prosecuting the proceeding. The Court determined that since the applicant did not have the necessary status or standing to commence or prosecute the proceeding, the application for relief could have no reasonable prospect of success.
The Court granted the Commonwealth's application for summary judgment, finding that the applicant's claim had no reasonable prospect of success as a matter of law. The Court emphasized that the statutory language should be applied as a whole, and expressions such as "untenable" or "groundless" should not be used as substitutes. The Court also noted that the parties should not be required to incur the costs of preparing for and conducting a lengthy trial. The Court rejected the applicant's proposed amendment to his application to bring proceedings under another part of the FW Act, finding it would not have changed the outcome. The Court's final order was to enter judgment for the respondent and make no order as to costs.
Orders
Orders of the court
1. Judgment be entered for the respondent.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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