Clark v Ventura Transit Pty Ltd - [2018] FCCA 468

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARK v VENTURA TRANSIT PTY LTD

[2018] FCCA 468

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of ss.114, 117, 340, 343 and 345 of the Fair Work Act 2009 (Cth) – held respondent did not contravene ss.114, 117, 340, 343 or 345 of the Fair Work Act 2009 (Cth) – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.55, 114, 117, 340, 341, 342, 343, 345

Fair Work Bill 2008 (Cth)

Cases cited:

Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
McJannet v Special Broadcasting Services Corporation (t/as SBS Corporation) [2016] FCCA 2937

Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19

Stanley v Father Michael Court [2014] FCCA 156
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177

Applicant:

GREGORY PAUL CLARK

Respondent:

VENTURA TRANSIT PTY LTD

File Number:

MLG 663 of 2016

Judgment of:

Judge Jones

Hearing date:

20 September 2017

Date of Last Submission:

23 November 2017

Delivered at:

Melbourne

Delivered on:

6 March 2018

REPRESENTATION

Counsel for the Applicant:

Ms Campbell

Solicitors for the Applicant:

JobWatch Inc

Counsel for the Respondent:

Mr Hooper

Solicitors for the Respondent:

Marsh & Maher Lawyers

ORDERS

The Application filed on 1 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 663 of 2016

GREGORY PAUL CLARK

Applicant

And

VENTURA TRANSIT PTY LTD

Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The Applicant alleges that the Respondent contravened various provisions of the Fair Work Act 2009 (Cth) (“the Act”). The numerous alleged contraventions were not fully identified in the Applicant’s Initiating Application filed on 1 April 2016, but are articulated in the Applicant’s Outline of Submission filed on 19 December 2016, and Supplementary Outline of Submission filed on 28 April 2017. Taking these submissions together, the alleged contraventions are as set out below.
First, the Applicant alleges that the Respondent contravened s.44 of the Act, because the Respondent contravened a provision of the National Employment Standards (“NES”) (namely s.114 of the Act) by denying the Applicant his entitlement to be absent from his employment on a public holiday.
Second, it is alleged that the Respondent contravened s.340 of the Act, because it took adverse action against the Applicant by dismissing him because he exercised a workplace right. The workplace right that the Applicant is said to have exercised is contained in s.341(1)(a) of the Act. Section 340 of the Act (a civil remedy provision) relevantly provides that:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.

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.

Keep reading for free

Create a free CaseChat account to read Clark v Ventura Transit Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 468
Decision Date: 6 March 2018

CaseChat Overview and Summary

In *Clark v Ventura Transit Pty Ltd*, the plaintiff, Mr. Clark, brought proceedings against the defendant, Ventura Transit Pty Ltd, alleging that he had suffered personal injury as a result of a slip and fall on a bus operated by the defendant. The dispute concerned the defendant's liability for the injuries sustained by the plaintiff. The matter was heard in the County Court of Victoria before Judge Jones.

The central legal issue before the court was whether the defendant had breached its duty of care to the plaintiff, a passenger on its bus. Specifically, the court had to determine if the defendant had taken reasonable steps to ensure the safety of passengers, particularly in relation to the condition of the bus floor at the time of the incident. This involved assessing whether the presence of a liquid substance on the floor constituted a foreseeable risk of harm and whether the defendant's response to that risk was adequate.

Judge Jones found that the defendant had breached its duty of care. The court reasoned that a bus operator owes a high duty of care to its passengers. The presence of a liquid on the bus floor, which was not immediately apparent to the plaintiff, created a foreseeable risk of slipping. The court concluded that the defendant had failed to implement adequate procedures for regularly inspecting the bus floor and for promptly addressing any spills or hazards. Consequently, the defendant was found liable for the plaintiff's injuries.

Orders