Carr v Empirical Works Pty Ltd - [2017] FCCA 1813

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARR v EMPIRICAL WORKS PTY LTD & ANOR

[2017] FCCA 1813

Catchwords:
INDUSTRIAL LAW – Alleged dismissal from employment in contravention of general protections.

PRACTICE & PROCEDURE – Application in a Case to amend Response and cross-claim – Application in a Case for strike out of cross-claim – sequence in which the applications should be considered.

Legislation:

Competition and Consumer Act 2010 (Cth), s.18 of sch.2

Fair Work Act 2009 (Cth), s.340

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 7.01, 16.01
Federal Circuit Court of Australia Act 1999 (Cth), ss.3,42, 82
Federal Court Rules 2011 (Cth), r.16.21
Trade Practices Act 1974 (Cth), s.52

Cases cited:

Cai v Tiy Loy & Co Ltd (No.2) [2015] FCCA 2924
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494

Goodall v Nationwide News Pty Ltd [2007] FCMA 218
The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 3) [2013] FMCA 165
Casson Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 2) [2011] FCA 731
Morton v Mitchell Products [1996] FCA 828; (1996) 21 ACSR 497
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Stoelwinder v Southern Health Care Network [2000] FCA 444; (2000) 177 ALR 501
David Walker v Salomon Smith Barney SecurityPty Ltd & Anor [2003] FCA 1099
Re Raymond Leroy Barto v GPR Management Services Pty Ltd and Eckard Solbrandt [1991] FCA 659; (1991) FCR 389
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553
TCN Channel Nine Pty Ltd v Ilvarity Pty Ltd [2008] NSWCA 9; (2008) 71 NSWLR 323
Astra Resources Plc v Full Exposure Pty Ltd [2012] FCA 1061

Applicant:

PETER CARR

First Respondent:

EMPIRICAL WORKS PTY LTD

Second Respondent:

PAUL LIN

File Number:

SYG 549 of 2016

Judgment of:

Judge Nicholls

Hearing date:

12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Sydney

Delivered on:

4 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Solicitors for the Applicant:

Duc Legal

Counsel for the Respondents:

Ms K Jones

Solicitors for the Respondents:

PCC Lawyers

ORDERS

The respondents’ (in the substantive proceedings) Application in a Case made on 7 December 2016 is allowed.
The applicant’s (in the substantive proceedings) Application in a Case made on 13 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 549 of 2016

PETER CARR

Applicant

And

EMPIRICAL WORKS PTY LTD

First Respondent

PAUL LIN

Second Respondent

REASONS FOR JUDGMENT

On 9 March 2016 Mr Peter Carr made an application to this Court seeking an extension of time within which to make a competent…

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: [2017] FCCA 1813
Decision Date: 4 August 2017

CaseChat Overview and Summary

In *Carr v Empirical Works Pty Ltd*, the applicant, Mr Carr, alleged that he had been dismissed from his employment in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). Empirical Works Pty Ltd was the respondent employer. The proceedings were before Judge Nicholls in the Federal Court of Australia.

The court was required to determine two principal applications. First, Empirical Works sought leave to amend its Response and to file a cross-claim. Second, Mr Carr sought to strike out that proposed cross-claim. A key procedural issue was the sequence in which these applications should be considered.

Judge Nicholls determined that the application to strike out the cross-claim should be considered first. His Honour reasoned that if the cross-claim was to be struck out, there would be no need to consider the application to amend it. The principles applied concerned the court's power to manage its own proceedings and the proper approach to applications for strike out, which require the court to assume the truth of the material facts pleaded in the cross-claim and determine if, as a matter of law, it discloses a cause of action.

The court ordered that the application to strike out the cross-claim be heard and determined before the application for leave to amend the Response and file the cross-claim.

Orders