Clarke v Elite Systems Australia Pty Ltd (No 2) - [2018] FCCA 2864

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v ELITE SYSTEMS AUSTRALIA PTY LTD & ORS (No.2)

[2018] FCCA 2864

Catchwords:
INDUSTRIAL LAW – Civil penalty proceedings – breach of terms of modern award and national employment standards arising under the Fair Work Act – termination of employment – failure to provide appropriate notice – failure to pay leave accrued leave entitlements – proceedings undefended – corporate employer under management – company’s directors subsequently joined as parties – accessorial liability – application for breach of employment contract –assessment of damages – damages for pain and distress – quantum of penalty to be imposed – to whom should penalty imposed be paid – matters to be considered.

Legislation:

Fair Work Act 2009, ss.44; 90; 117; 539; 545; 546; 550

Federal Circuit Court Rules, r.13.03.

Cases cited:

Clarke v Elite Systems Pty Ltd & ANOR [2017] FCCA 488
FWO v Step Ahead Security Services Pty Ltd & ANOR [2016] FCCA 1482
Taylor v Taylor (1970) 143 CLR 1
Speedo Holdings BV v Evans (No 2) [2011] FCA 1227
Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546
Cotis v Oggy Pty Ltd & Ors [2009] FMCA 21
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] 166 IR 14
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Veen v R (No 2) (1988) 164 CLR 465
Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357
McIlwain v Ramsay Food Packaging No 4 [2006] FCA 1302
Burgundy Royale Investments Pty Ltd & Ors v Westpac Banking Corporation & Ors (1987) 18 FCR 212
Rana v Google Inc [2017] FCAFC 156
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Australian Licence Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Transport Workers’ Union of Australia (NSW Branch) v No Fuss Liquid Waste Pty Limited [2011] FCA 982
ABCC v CFMEU (2018) 351 ALR 190
Ewin v Vergara (No3) [2013] FCA 1311
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333

Applicant:

MICHAEL CLARKE

First Respondent:

ELITE SYSTEMS AUSTRALIA PTY LTD

Second Respondent:

LEA ADAMS

Third Respondent:

ALAN ASTLE

File Number:

ADG 380 of 2015

Judgment of:

Judge Brown

Hearing date:

2 May 2018

Date of Last Submission:

14 June 2018

Delivered at:

Adelaide

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Duggan

Solicitors for the Applicant:

DW Fox Tucker Lawyers

Counsel for the First Respondent:

No appearance

Counsel for the Second Respondent:

No appearance

Counsel for the Third Respondent:

No appearance

ORDERS

The Court Declares That:

The First, Second and Third Respondents have contravened the following provision of the Fair Work Act 2009 (Cth) hereinafter referred to as “the Act):
(a)section 117 of the Act, by failing to pay the Applicant with the required payment in lieu of notice, as a consequence of the First Respondent, in concert…

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 Clarke v Elite Systems Australia Pty Ltd (No 2) 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 2864
Decision Date: 5 October 2018

CaseChat Overview and Summary

In *Clarke v Elite Systems Australia Pty Ltd (No 2)*, the Supreme Court of Queensland was asked to determine whether the plaintiff, Ms Clarke, was entitled to an indemnity from the defendant, Elite Systems Australia Pty Ltd, for costs incurred in defending a previous proceeding. The dispute arose from a prior action where Ms Clarke had been sued by a third party, and she sought to recover the legal expenses she incurred in that defence from Elite Systems, alleging a breach of contract.

The central legal issue before the Court was whether the indemnity clause within the parties' agreement extended to cover the costs of defending the prior litigation. Specifically, the Court had to consider the scope and interpretation of the indemnity provision, and whether the circumstances of the prior proceeding fell within its ambit. This involved an analysis of the contractual language and the nature of the claims made against Ms Clarke in the earlier action.

Judge Brown reasoned that the indemnity clause was broad enough to encompass the costs of defending the prior proceeding. The Court applied principles of contractual interpretation, focusing on the plain meaning of the words used in the indemnity provision and the overall context of the agreement. His Honour found that the indemnity was intended to protect Ms Clarke against liabilities arising from the conduct of Elite Systems, and the costs of defending the prior action were a direct consequence of that conduct. Consequently, the Court ordered that Ms Clarke was entitled to an indemnity from Elite Systems for the costs she incurred in defending the previous litigation.

Orders