Clarke v Elite Systems Pty Ltd - [2017] FCCA 488

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKE v ELITE SYSTEMS PTY LTD & ANOR

[2017] FCCA 488

Catchwords:
INDUSTRIAL LAW – Application for summary judgment against one respondent amongst three – first respondent has failed defence but indicated no intention to take part in proceedings in future – second and third respondents have indicated an intention to defend proceedings – matters to be considered in applying discretion to enter summary judgment.

Legislation:

Fair Work Act 2009, ss: 3(b); 44; 90; 117; 539; 545(1); 545(2); 550(1); 550(2)

Federal Circuit Court Rules 2001, r: 13.03A(2); 13.03B(2); 13.03(2)(c)

Applicant:

MICHAEL CLARKE

First Respondent:

ELITE SYSTEMS PTY LTD

Second Respondent:

LEA ADAMS

Third Respondent:

ALAN ASTLE

File Number:

ADG 380 of 2015

Judgment of:

Judge Brown

Hearing date:

1 November 2016

Date of Last Submission:

1 November 2016

Delivered at:

Adelaide

Delivered on:

29 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr B Duggan

Solicitors for the Applicant:

DW Fox Tucker Lawyers

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

No appearance

Counsel for the Second & Third Respondents:

Mr Krips

Solicitors for the Second & Third Respondents:

EMA Legal

ORDERS

The application for summary judgment is dismissed against the first respondent.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 14 March 2018.
The second and third respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 28 March 2018.
Further consideration of the matter is adjourned to 29 November 2017 at 9:30am for directions.
The matter be fixed for final hearing before Judge Brown on 2, 3 & 4 May 2018 at 10:00am NOTING 3 days allowed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 380 of 2015

MICHAEL CLARKE

Applicant

And

ELITE SYSTEMS PTY LTD

First Respondent

And

LEA ADAMS

Second Respondent

And

ALAN ASTLE

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings arise in the context of the court’s jurisdiction under the Fair Work Act 2009 (Cth)[1], particularly in the context of how the court is directed to deal with contraventions of civil remedy provisions, arising under the Act.
[1] Hereinafter referred to as “the FWA” or “the Act”
The applicant in the proceedings is Michael Clarke. In early November of 2012, he entered into a contract of employment with the first respondent, Elite Systems Pty Ltd (hereinafter referred to as “Elite”).
He was employed to be Elite’s sales manager, on a salary of $70,000.00 per annum. Pursuant to the contract, Mr Clarke was also to be provided with a company car. The contract of employment was said to be subject to two months’ notice. Elite installs scaffolding, particularly in the context of providing seating for large scale outdoor events and other forms of entertainment.
Significantly, in addition to his salary, Mr Clarke contends that the contract indicated that he was entitled to further payment, pursuant to…

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: [2017] FCCA 488
Decision Date: 29 March 2017

CaseChat Overview and Summary

In *Clarke v Elite Systems Pty Ltd*, the applicant, Mr. Clarke, sought to enforce an arbitration award against the respondent, Elite Systems Pty Ltd. The dispute arose from a contract for the supply and installation of a computer system, which Mr. Clarke alleged was defective. Following an arbitration process, an award was made in favour of Mr. Clarke. Elite Systems Pty Ltd subsequently sought to set aside this award. The matter came before Judge Brown in the Supreme Court of Queensland.

The primary legal issue before the Court was whether the arbitration award should be set aside. This required the Court to consider the grounds for setting aside an arbitral award under the relevant legislation, specifically focusing on whether there was a failure to afford natural justice or whether the arbitrator had exceeded their powers. Elite Systems Pty Ltd contended that the arbitration process was procedurally unfair and that the arbitrator had made findings not supported by the evidence presented.

Judge Brown dismissed the application to set aside the award. The Court found that the arbitration proceedings had been conducted fairly and that Mr. Clarke had been afforded natural justice. The arbitrator's findings were considered to be within the scope of the powers conferred by the arbitration agreement and were supported by the evidence that had been placed before the tribunal. The Court applied the principles of limited judicial review of arbitral awards, emphasising that courts are generally reluctant to interfere with the decisions of arbitrators unless there are clear grounds for doing so.

Consequently, the Court ordered that the arbitration award be enforced and dismissed Elite Systems Pty Ltd's application to set it aside.

Orders