Cameron v Goldwind Australia Pty Ltd - [2019] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMERON v GOLDWIND AUSTRALIA PTY LTD

[2019] FCCA 1541

Catchwords:
INDUSTRIAL LAW – PRACTICE & PROCEDURE – Application for interlocutory injunction to restrain respondent employer from proceeding with termination of applicant’s employment – whether applicant has reasonably arguable case that she has a cause of action based on respondent’s alleged contravention of s.351(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant has a reasonably arguable case that claim based on contravention of s.351(1) of the FW Act is barred by s.351(2)(a) in combination with the Anti-Discrimination Act 1977 (NSW) – whether applicant will suffer irreparable injury if interlocutory injunction is not granted but applicant succeeds at final hearing – interlocutory injunction not granted because applicant will not suffer irreparable injury assuming final hearing is heard on an expedited basis.

Legislation:

Age Discrimination Act 2004 (Cth), Division 4 of Part 4
Anti-Discrimination Act 1977 (NSW), s.126(1)
Disability Discrimination Act 1992 (Cth) ss.45, 46, 47, 48, 53, 54, 55, 58
Fair Work Act 2009 (Cth), ss.153, 195, 340, 342(1), 351, 360, 361, 365, 545(2)(a), 578, 772(f)
Racial Discrimination Act 1975 (Cth), s.18D
Sex Discrimination Act 1984 (Cth), Division 4 of Part II

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148
Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923

Applicant:

GAYE CAMERON

Respondent:

GOLDWIND AUSTRALIA PTY LTD
(ABN 32 140 108 390)

File Number:

SYG 1240 of 2019

Judgment of:

Judge Manousaridis

Hearing date:

5 June 2019

Date of Last Submission:

5 June 2019

Delivered at:

Sydney

Delivered on:

6 June 2019

REPRESENTATION

Counsel for the Applicant:

Ms P Lowson

Solicitors for the Applicant:

Holman Webb Lawyers

Counsel for the Respondent:

Mr Y Shariff and Mr B Rauf

Solicitors for the Respondent:

K & L Gates

ORDERS

The applicant’s application for an interlocutory injunction heard on 5 June 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1240 of 2019

GAYE CAMERON

Applicant

And

GOLDWIND AUSTRALIA PTY LTD (ABN 32 140 108 390)

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application by the applicant, Ms Cameron, for an interlocutory injunction to restrain the respondent (Goldwind) from terminating her employment or, at least, from acting on a decision it has made to terminate Ms Cameron’s employment.
Ms Cameron seeks the interlocutory injunction…

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.

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Details

Case: [2019] FCCA 1541
Decision Date: 6 June 2019

CaseChat Overview and Summary

In *Cameron v Goldwind Australia Pty Ltd*, the applicant sought an interlocutory injunction to prevent the respondent employer from terminating her employment. The applicant alleged that the proposed termination would contravene section 351(1) of the *Fair Work Act 2009* (Cth) and that her claim was not barred by section 351(2)(a) of the *Fair Work Act* in conjunction with the *Anti-Discrimination Act 1977* (NSW). The application was heard by Judge Manousaridis in the NSW District Court.

The central legal issues before the court were whether the applicant had a reasonably arguable case that her employer had contravened section 351(1) of the *Fair Work Act*, and whether her claim was barred by section 351(2)(a) of the *Fair Work Act* read with the NSW *Anti-Discrimination Act*. Additionally, the court had to determine whether the applicant would suffer irreparable injury if the interlocutory injunction was not granted, assuming she succeeded at a final hearing.

Judge Manousaridis found that while the applicant had an arguable case regarding the contravention of section 351(1) of the *Fair Work Act*, the critical factor for granting an interlocutory injunction was the presence of irreparable injury. The court determined that the applicant would not suffer irreparable injury if the interlocutory injunction was not granted, primarily because the final hearing could be expedited. Consequently, the application for an interlocutory injunction was refused.

Orders