FEDERAL COURT OF AUSTRALIA
Compass Group (Australia) Pty Ltd v Sales [2012] FCA 1406
Citation: Compass Group (Australia) Pty Ltd v Sales [2012] FCA 1406 Appeal from: Sales v Compass Group (Industrial Relations Court of South Australia, Industrial Magistrate Lieschke, 7 June 2012) Parties: COMPASS GROUP (AUSTRALIA) PTY LTD v MEEGAN SALES File number: SAD 147 of 2012 Judge: COWDROY J Date of judgment: 13 December 2012 Catchwords: PRACTICE AND PROCEDURE – appeal from Industrial Relations Court of South Australia – appeal allowed by consent – appellant seeks repayment of monies paid by it under first instance judgment – repayment is a right – repayment occurs even if appeal judgment does not finalise matter Legislation: Constitution of Australia s 109
Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (Cth) cl 5 Sch 4
Fair Work Act 2009 (Cth) s 26
Fair Work Act 1994 (SA) s 72B
Federal Court Act 1976 (Cth) s 23
Workplace Relations Act 1996 (Cth) s 16Cases cited: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
South Australian Minimum Standard for Severance Payments Case 2006 [2006] SAIRComm 25
TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381
Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445Date of hearing: 19 November 2012 Date of last submissions: 30 November 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 12 Solicitor for the Appellant: Norton Rose Australia Solicitor for the Respondent: Bourne Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
SAD 147 of 2012
ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL
BETWEEN: COMPASS GROUP (AUSTRALIA) PTY LTD
AppellantAND: MEEGAN SALES
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
13 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Appellant’s Notice of Appeal dated 27 June 2012 be amended nunc pro tunc to include a claim for an order that the Respondent pay the appellant the sum of $11,305.30.
2.Within 28 days, the Respondent pay the Appellant the sum of $11,305.30.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
SAD 147 of 2012
ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL
BETWEEN: COMPASS GROUP (AUSTRALIA) PTY LTD
AppellantAND: MEEGAN SALES
Respondent
JUDGE:
COWDROY J
DATE:
13 DECEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The respondent is a former employee of the appellant. Commencing in 2004 she was employed in the appellant’s food and beverage operations at the Adelaide Festival Centre. She progressed within the company until 27 September 2010. On that date, the appellant sent a letter to the respondent advising her that because the appellant had lost its contract with the Adelaide Festival Centre, she would be retrenched effective on 12 December 2010. On 24 November 2010 the…
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- Case
- [2012] FCA 1406
- Decision Date
CaseChat Overview and Summary
The court considered the principle that if an appellate court overturns a decision under which a party is ordered to pay money to another, that party is entitled to repayment of the money paid under the judgment at first instance. This entitlement is a right and not subject to the court's discretion. The court also noted that the appellant could claim interest at the relevant rate but stated it would forgo this claim. Furthermore, a party seeking repayment is entitled to it even if the appellate decision does not finally determine the matter. The court found that it had the power under section 23 of the Federal Court Act 1976 to make an order requiring repayment and that it should mould such an order on discretionary principles if necessary.
The court amended the appellant's notice of appeal to include a claim for repayment of the sum of $11,305.30 and ordered that the respondent pay this amount within 28 days. The court considered it appropriate to give the respondent a period of 28 days to repay the money, as opposed to the 21 days proposed by the appellant. The court emphasised the importance of addressing the issue of repayment, given its significance to the client and the common oversight by legal advisers acting for appellants.
Orders
Orders of the court
1. The Appellant’s Notice of Appeal dated 27 June 2012 be amended nunc pro tunc to include a claim for an order that the Respondent pay the appellant the sum of $11,305.30.
2. Within 28 days, the Respondent pay the Appellant the sum of $11,305.30.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Accordingly, the Court will consider the issue of repayment of such monies in the absence of any submission of the respondent.CONSIDERATION If an appellate court overturns a decision under which a party is ordered to pay money to another, that party is entitled to repayment of the money which it paid under the judgment at first instance: see Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141 at [4] and Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445 at [25] and the authorities cited within that paragraph. That entitlement is a right. It is not subject to the discretion of the Court: see Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 at 660. Such authorities also state that the party seeking repayment is entitled to claim interest at the relevant rate. However, in its submissions the appellant stated that it will forgo its claim to interest. A party seeking repayment is also entitled to repayment even when the appellate decision does not finally determine this matter: see TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381 (‘Antoniadis’) at [11]. Therefore, the fact that the orders of this Court of 19 November 2012 remitted this matter to the Industrial Court for reconsideration does not preclude repayment of the money received by the respondent. The Court notes that the appellant did not seek repayment of the money in its notice of appeal. However, as Handley, Beazley and Stein JJA stated in Antoniadis at [3]:This question, which is of some importance to the client, is so frequentlyoverlooked by legal advisers acting for appellants that an embarrassing body ofcase law has accumulated which establishes that appropriate relief can begranted after the appeal has been determined: see Production Spray Paintingand Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 at 661. The Court clearly has power under s 23 of the Federal Court Act 1976 (Cth) to make an order requiring repayment. It follows that it must make such an order in this case. However, the Court still has power to mould such an order on discretionary principles if necessary: see Antoniadis at [8]. Although no evidence was tendered of the respondent’s financial position, the respondent’s solicitor indicated during these proceedings that the respondent would require a period of time to repay the money. The Court considers that it would be appropriate for the respondent to be given 28 days, as opposed to the 21 days proposed by the appellant, to repay the sum. It will make orders accordingly.