Coopes v Daishsat Pty Ltd and Anor (No.2) - [2017] FCCA 2210

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOPES v DAISHSAT PTY LTD & ANOR (No.2)

[2017] FCCA 2210

Catchwords:
INDUSTRIAL LAW – Termination of employment – whether redundancy – whether summary dismissal for serious misconduct – whether employer a small business employer – application in a case for further discovery.

PRACTICE AND PROCEDURE – Application in a case for further discovery – criteria for declaration and order re discovery – interests of the administration of justice – fair and expeditious conduct of the proceedings – other matters.

WORDS AND PHRASES – “interests of the administration of justice”.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 23, 119, 121, 335, 357, 570(2)
Fair Work Regulations 2009 (Cth), reg.1.07(1)
Federal Circuit Court of Australia Act 1999 (Cth), ss.3(2), 14, 42, 45
Federal Circuit Court Rules 2001 (Cth), r.14.02

Cases cited:

Abrahams v Qantas Airways (No 2) [2007] FMCA 639; (2007) 210 FLR 314

ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; (1991) 37 IR 380; (1991) 99 ALR 735; [1991] ATPR 41-092; (1991) 33 AILR 163
Cam & Sons Pty Ltd v Sargent (1940) 64 CLR 659; (1940) 14 ALJ 162
Climaze Holding Pty Ltd v Dyson & Anor (1995) 13 WAR 487; (1995) 58 IR 260; (1995) 8 ANZ Insurance Cases 61-245
Damevski v Giudice & Ors [2003] FCAFC 252; (2003) 133 FCR 438; (2003) 129 IR 53; (2003) 202 ALR 494; (2003) 54 AILR 100-124
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 45; (2015) 256 CLR 137; (2015) 90 ALJR 107; (2015) 255 IR 229; (2015) 326 ALR 470; (2015) 67 AILR 102-490
Gallagher v BHP Billiton Nickel West Pty Ltd & Anor [2016] FCCA 3367
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507

Gera v Commonwealth Bank of Australia Ltd [2010] FMCA 205; (2010) 201 IR 26; (2010) 62 AILR 101-209

Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; (2001) 75 ALJR 1356; (2001) 47 ATR 559; (2001) 106 IR 80; (2001) 181 ALR 263; [2001] Aust Torts Reports 81-615; (2001) 50 AILR 4-476

North v Television Corporation Ltd (1976) 11 ALR 599; (1976) 177 CAR 1278
Re Porter; Re Transport Workers’ Union of Australia (1989) 34 IR 179; (1989) 31 AILR 382
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16; (1986) 60 ALJR 194; (1986) 63 ALR 513

The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097

Concise Oxford Dictionary, 7^th Edition (Oxford: Oxford University Press, 1984)
C Sappideen et al, Macken’s Law of Employment (7

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 2210
Decision Date: 13 September 2017

CaseChat Overview and Summary

This matter concerned an application for further discovery in proceedings between Coopes and Daishsat Pty Ltd and another party. The underlying dispute involved allegations by Coopes that their employment was terminated by reason of redundancy, while the respondents contended that the termination was a summary dismissal due to serious misconduct. A further issue was whether the employer qualified as a "small business employer" for the purposes of the relevant legislation.

The court was required to determine whether to grant the application for further discovery. In doing so, it had to consider the criteria for making such orders, specifically in relation to the interests of the administration of justice and the need for the fair and expeditious conduct of the proceedings. The court also had to assess whether the requested discovery was necessary for the proper determination of the substantive issues in the case, including the nature of the termination and the employer's status.

In reaching its decision, the court applied principles governing discovery, emphasising that such orders should be made where they are necessary to ensure a just outcome and to facilitate the efficient progression of litigation. The court considered the potential relevance of the documents sought to the central questions of redundancy versus misconduct and the applicability of small business provisions. The court balanced the need for full disclosure against the potential for undue burden or fishing expeditions, ultimately assessing whether the requested discovery was proportionate and served the interests of justice.

Orders