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Chand v Soft Star Pty Ltd

Chand v Soft Star Pty Ltd

Case [2016] FCCA 121 29 January 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAND v SOFT STAR PTY LTD

[2016] FCCA 121

Catchwords:

PRACTICE AND PROCEDURE – Application in a case seeking extension of time for filing of application – factors for consideration – difficulties with recently introduced electronic court filing.

INDUSTRIAL LAW – Dismissal from employment in contravention of general protections provisions of the Fair Work Act 2009 (Cth) – whether dismissal of employment due to redundancy – application filed out of time – application in a case seeking extension of time for filing of application.

EMPLOYMENT – Employment visa – contract of employment – claim for loss of earnings for reminder of period of four year employment visa.

MIGRATION – Employment visa – sponsorship by employer – claim for loss of earnings for remainder of period of four year employment visa.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1)(a)(ii), 342, 361, 365, 368, 370, 570

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 2.04, 2.07, 13.04, 21.02, 45.06
Migration Regulations 1994 (Cth), Sch.2, cl.457

Abigroup Contractors Pty Ltd v Carnegie [2013] FCCA 1099
Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; (2006) 33 WAR 82
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28; (2010) 62 AILR 101-129
Hanssen Pty Ltd v Jones [2009] FCA 192; (2009) 179 IR 57
Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490
In the marriage of Locke & Locke [1993] FLC 92-352; (1992) 112 FLR 238; (1992) 16 Fam LR 336
Jimenea v Dynamic Supplies Pty Ltd [2013] FCCA 63
Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395; (1985) 67 ALR 652
Owen v Cudeco Ltd [2013] FCCA 1827
Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671
Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611
Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472

Applicant:

SUREN CHAND

Respondent:

SOFT STAR PTY LTD T/A CHRISTMAS ISLAND RESORT

File Number:

PEG 425 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

10 April 2015

Date of Last Submission:

10 April 2015

Delivered at:

Perth (by telephone link to Christmas Island)

Delivered on:

29 January 2016

REPRESENTATION

For the Applicant:

Mr G Thomson

Union for the Applicant:

Union of Christmas Island Workers

Counsel for the Respondent:

Ms B Robinson

Solicitors for the Respondent:

Allion Legal

ORDERS

The applicant’s Application in a…

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 Chand v Soft Star Pty Ltd

Details

AGLC: Chand v Soft Star Pty Ltd [2016] FCCA 121
Case: [2016] FCCA 121
Decision Date: 29 January 2016

CaseChat Overview and Summary

In *Chand v Soft Star Pty Ltd*, the applicant, Mr Chand, sought an extension of time to file an application alleging his dismissal from employment by Soft Star Pty Ltd was in contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). Mr Chand also claimed loss of earnings for the remainder of a four-year employment visa. The matter came before Judge Antoni Lucev in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the dismissal was due to genuine redundancy, and crucially, whether an extension of time should be granted for the filing of Mr Chand's application. The court was required to consider the factors relevant to granting an extension of time, particularly in light of difficulties encountered with the recently introduced electronic court filing system.

His Honour considered the principles governing applications for extensions of time, including the length of the delay, the reasons for the delay, the merits of the proposed application, and the prejudice to the respondent. The court noted the applicant's explanation for the delay, which involved difficulties navigating the new electronic filing system and obtaining legal advice. Weighing these factors, and considering the potential prejudice to the respondent, the court determined that an extension of time was warranted. The court ultimately granted the extension of time for the filing of Mr Chand's application.

Orders