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Coote v Mainline Access Pty Ltd & Anor (No.3)

Coote v Mainline Access Pty Ltd & Anor (No.3)

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Case Copied 28 February 2019 80 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

COOTE v MAINLINE ACCESS PTY LTD & ANOR (No.3)

[2019] FCCA 383

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application to set aside orders made by consent after publication of reasons for judgment dealing with liability of respondents for contravening provisions of the Fair Work Act 2009 (Cth) – whether consent orders are interlocutory – whether Court has jurisdiction under the implied incidental power to set aside consent orders – whether it is a ground for setting aside orders made by consent if the orders do not reflect, or are inconsistent with, findings the Court has made – whether consent orders supported by the findings made – consent orders set aside on terms.

INDUSTRIAL LAW – Construction of s.323(1) of the Fair Work Act 2009 (Cth) – whether s.323(1) is contravened only because an employer fails to pay an amount payable under a term of a contract of employment for the performance of work – no settled authority to the effect that s.323(1) is contravened only because an employer fails to pay an amount payable under a contract of employment for the performance of work.

INDUSTRIAL LAW – Application for final relief and the imposition of penalties – compensation under s.545 of the Fair Work Act 2009 (Cth) assessed and other remedies granted – civil penalties ordered.

INDUSTRIAL LAW – COSTS – Application for costs – whether respondents acted unreasonably – application for costs dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 15(a), 76

Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(c), 16.05(2)(e)

Fair Work Act 2009 (Cth), ss.12, 44, 45, 61(2), 90(2), 139(1), 323, 324, 535, 536, 542, 543, 545, 546, 547, 550(2), 557(1), 570

Manufacturing and Associated Industries Award 2012, cl.34, 35.2

Cases cited:

Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878
Australian Building and Construction Commissioner v Construction, Forestry,Mining and Energy Union (the BKH Contractors Case) (No 2) [2018] FCA 1563
Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196
Australian Postal Corp v Stephens [2011] FCA 947
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36
Coote v Mainline Access Pty Ltd & Anor (No.2) [2018] FCCA 2892
Fair Work Ombudsman v A To Z Catering Solution Pty Limited (No.3) [2018] FCCA 3574
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53
Grassby v The Queen (1989) 168 CLR 1
Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273
Jackson v Sterling Industries Limited [1986] FCA 343
Jago v District Court of New South Wales (1989) 168 CLR 23
Jefferson Ford Pty Ltd v Ford Motor Co of Australia [2008] FCAFC 60
Kelly v Fitzpatrick [2007] FCA
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Mason v Harrington…

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: [2019] FCCA 383
Decision Date: 28 February 2019

CaseChat Overview and Summary

In *Coote v Mainline Access Pty Ltd & Anor (No.3)*, the applicant sought to set aside consent orders that had been made after the Court had published its reasons for judgment concerning the respondents' contravention of provisions of the *Fair Work Act 2009* (Cth). The application was heard by Judge Manousaridis in the Federal Court of Australia.

The central legal issues before the Court were whether the consent orders were interlocutory, whether the Court possessed jurisdiction under its implied incidental powers to set aside such orders, and whether a failure of the consent orders to reflect or be consistent with the Court's prior findings constituted a valid ground for setting them aside. The Court also considered whether the consent orders were supported by the findings it had previously made.

Judge Manousaridis reasoned that while consent orders are generally final, the Court retained an inherent jurisdiction to set aside orders, including consent orders, in circumstances where they were inconsistent with the Court's findings or where there was a miscarriage of justice. The Court found that the consent orders in this instance were not supported by its prior findings and were inconsistent with them, thereby justifying their being set aside. The Court also addressed the construction of s.323(1) of the *Fair Work Act 2009* (Cth), noting the absence of settled authority that contravention of this section occurs solely due to an employer's failure to pay an amount due under a contract of employment for work performed.

The Court ordered that the consent orders be set aside on terms. The application for costs was dismissed, with the Court finding that the respondents had not acted unreasonably.

Orders