DECISION

Fair Work Act 2009
Section 789FC - Application for an order to stop bullying

Charmaine Hoad
(AB2018/537)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 NOVEMBER 2019

Application for an FWC order to stop bullying – application to reopen – unresolved matrimonial dispute – no material changed circumstances – no significant practical necessity – application dismissed

[1] On 29 March 2019 the Fair Work Commission (the Commission) made a Decision 1 (the Decision) and issued Directions2 (the Directions) concerning an anti-bullying application3 by Charmaine Joy Hoad (Mrs Hoad or the Applicant). The person named in the application was (William) Mark Hoad (Mr Hoad).

[2] Arising from the Decision, I directed “that the anti-bullying application not be listed for further hearing except as provided for in this Direction” 4.

[3] On 26 August 2019 Mrs Hoad, by email to the Commission, made a request for her anti-bullying application to be reopened. She claims to do so consistent with the Direction.

[4] Given the self-represented nature of the parties and the case history, I have accepted Mrs Hoad’s email request as an application for reopening notwithstanding it not having been made in the form prescribed by the FW Act and associated Rules.

[5] On 25 September 2019 Mr Hoad, by email to the Commission, opposed the request to reopen.

[6] On 21 October 2019 I conducted a hearing on the reopening application. In advance of the hearing, I issued directions 5 for the filing of statements and materials. Both Mrs Hoad and Mr Hoad did so. I received oral and written evidence from both Mrs Hoad and Mr Hoad.

[7] I reserved my decision on the reopening application, which I now deliver.

[8] It should be noted that this decision does not concern Mrs Hoad’s reopening application dated 30 September 2019 in a separate but related matter Re Taylor AB2018/558. That reopening application is listed for hearing before me on 11 December 2019.

The anti-bullying application

[9] Mrs Hoad’s anti-bullying application has certain unique features. It concerns husband and wife co-directors of a company in whose workplace the husband and wife are both working. It concerns a matrimonial dispute between husband and wife that has led to their estrangement and (since the Decision) a divorce. It concerns proceedings before the Federal Circuit Court (and now the Family Court) concerning a dispute over the distribution of matrimonial assets, including business assets.

The Decision

[10] Mr Hoad sought dismissal of the anti-bullying application on jurisdictional grounds. The Decision determined two of three jurisdictional issues. The third jurisdictional issue remains live but, in light of the Decision, has not been determined.

[11] The jurisdictional issues dealt with by the Decision were: (1) whether a binding settlement agreement had been reached between the parties such that there was no further risk of bullying; and (2) whether a term of the alleged settlement agreement was that the anti-bullying proceedings be discontinued.

[12] The Decision found 6 that a binding settlement agreement had been…

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 Charmaine Hoad

Details

AGLC: Charmaine Hoad [2019] FWC 7739
Case: [2019] FWC 7739
Decision Date: 13 NOVEMBER 2019

CaseChat Overview and Summary

Charmaine Hoad applied to the Federal Circuit Court of Australia for an order to stop workplace bullying. The application arose from a long-standing unresolved matrimonial dispute. The court was tasked with determining whether the application to reopen the matter should be granted, considering whether there were any material changes in circumstances or significant practical necessity.

The court examined the history of the case, noting that the applicant had previously raised similar issues in other proceedings. It concluded that there were no material changes in circumstances since the original application and that there was no significant practical necessity for reopening the matter. The court found that the applicant had not provided sufficient grounds to justify reopening the proceedings, and thus dismissed the application.

The Federal Circuit Court held that the application to reopen the matter was without merit. It found that the applicant had not demonstrated any significant practical necessity or material changes in circumstances warranting the reopening of the proceedings. The court's reasoning was based on the existing history of the case and the lack of new evidence or changed circumstances. The application was dismissed, and no further orders were made.

Orders