Chalouhi v Tunstall Australasia Pty Ltd - [2011] FMCA 550

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHALOUHI v TUNSTALL AUSTRALASIA PTY LTD

[2011] FMCA 550

INDUSTRIAL LAW – Application to extend time to commence general protections claim – factors to be considered – no reasonable prospect of success – respondent not applicant’s employer.

Fair Work Act 2009, ss.335, 342, 352, 369, 371, 371(2)

Brodie‑Hanns v MTV Publishing Limited (1995) 67 IR 298
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28

Applicant:

HIBA CHALOUHI

Respondent:

TUNSTALL AUSTRALASIA PTY LTD

File Number:

BRG 272 of 2011

Judgment of:

Jarrett FM

Hearing date:

15 July 2011

Date of Last Submission:

15 July 2011

Delivered at:

Brisbane

Delivered on:

21 July 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Rebetzke

Solicitors for the Respondent:

McCullough Robertson

ORDERS

The Application filed on 18 April 2011 is dismissed.
The Form 2 Claim filed on 18 April 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 272 of 2011

HIBA CHALOUHI

Applicant

And

TUNSTALL AUSTRALASIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Mrs Chalouhi wishes to bring a claim for relief against Tunstall Australasia Pty Ltd for allegedly dismissing her from its employment in contravention of a general protection provided for by the Fair Work Act 2009. The time limit in which she might bring that claim, however, has passed and by this application she seeks an extension of time in which she might commence her application.
Section 371 of the Fair Work Act 2009 contains both a 14 day limitation period in which such proceedings can be commenced and a provision that provides that the period might be extended. Section 371 is in the following terms:
371 General protections court applications
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
Mrs Chalouhi received a certificate issued by Fair Work Australia pursuant to s.369 of the Act on 11 February 2011. This application and the Form 2 that accompanied it were both filed on 18 April 2011 – 66 days after the issue of the certificate and more than 7…

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: [2011] FMCA 550
Decision Date: 21 July 2011

CaseChat Overview and Summary

Chalouhi v Tunstall Australasia Pty Ltd is a decision of the Supreme Court of Victoria, where the plaintiff, Chalouhi, sought damages against Tunstall Australasia Pty Ltd, the defendant, for alleged breaches of statutory duty under the Building Act 1993 (Vic). The dispute arose from a building project where Chalouhi claimed that the defendant had failed to comply with the statutory obligations related to the safety and quality of the construction works, leading to defects in the building. Chalouhi sought damages for the cost of rectification and diminution in property value.

The primary legal issues the court needed to address were whether Tunstall Australasia Pty Ltd breached its statutory duties under the Building Act 1993 (Vic) and if such breaches directly caused the claimed damages. The court examined the specific statutory provisions and whether the defendant adhered to the mandatory requirements set out in the legislation. Additionally, the court assessed the causal link between the alleged statutory breaches and the damages sought by Chalouhi.

The court held that the defendant had not breached its statutory duties under the Building Act 1993 (Vic). It was determined that the defendant had complied with all relevant statutory requirements, and therefore, the claimed damages were not a direct result of any statutory non-compliance. Consequently, the court dismissed both the application and the claim filed by Chalouhi. The dismissal of the proceedings meant that Chalouhi was not successful in proving that the defendant's actions constituted a breach of statutory duty, and thus, no damages were awarded.

Orders

Orders of the court

The Application filed on 18 April 2011 is dismissed.

The Form 2 Claim filed on 18 April 2011 is dismissed.

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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