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Corcoran & Ors v Bansley Pty Ltd

Corcoran & Ors v Bansley Pty Ltd

Case [2011] FMCA 440 13 June 2011

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORCORAN & ORS v BANSLEY PTY LTD

[2011] FMCA 440

INDUSTRIAL LAW – Small claims proceeding – representation of organisation – representation of corporation.

PRACTICE & PROCEDURE – Small claims proceedings – representation of organisation – registered organisation – employee organisation – industrial association – official of industrial association – whether official of industrial association may represent a party to small claims proceedings.

PRACTICE & PROCEDURE – Small claims proceedings – representation of corporation by employee.

WORDS AND PHRASES – “official of an industrial association”.

Federal Magistrates Act 1999 (Cth), ss.3, 43, 44
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 9.04, 45.13
Fair Work Act 2009 (Cth) ss.12, 61(2), 139(1), 540, 548, 570(2), 608, 796, Divisions 2 and 3, Part 4-1
Fair Work Bill Explanatory Memorandum 2008 (Cth), R338
Fair Work (Registered Organisation) Act 2009 (Cth), ss.353, 353A
Fair Work Regulations 2009 (Cth), reg.4.01
Industrial Relations Act 1979 (WA), s.112A

Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626
Automatic Fire Sprinklers v Watson [1946] HCA 25
Bansley Pty Ltd v LHMU C2010/596 (Full Bench Fair Work Australia, unreported)
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
LHMU v Carinya Care Services [2010] FWA 6489
LHMU v Bansley Pty Ltd [2010] FWA 979
Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481
McShane v Image Bollards Pty Ltd as Trustee for The Scott Family Trust trading as Image Bollards [2011] FMCA 215
NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Reynolds v Minister for Health (2010) 247 FLR 425; [2010] FMCA 843
Salemi v MacKellar (No 2) (1997) 137 CLR 396
The Commonwealth v Baume (1905) 2 CLR 404
Zoological Board of Victoria & Ors v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41

First Applicant:

JANE CORCORAN

Second Applicant:

CINDY WOJTYSIAK

Third Applicant:

ANNA KAROLAK

Fourth Applicant:

KELLY WARREN

Fifth Applicant:

MELANIE SHORT

Sixth Applicant:

SHARON PICKERING

Seventh Applicant:

ELIZABETH SMITH

Eighth Applicant:

KELLY BARKER

Ninth Applicant:

BETTY MARIE WALKER

Tenth Applicant:

SUSAN LEWIS

Eleventh Applicant:

CATHERINE MCKINNON

Twelfth Applicant:

SYLVIA HALIM

Thirteenth Applicant:

ALISON ROSS

Fourteenth Applicant:

MARGOT BIFFIN

Fifteenth Applicant:

SUSAN HOSKINS

Sixteenth Applicant:

DAVID BERTANEES

Seventeenth Applicant:

JUDITH BORCHERT

Eighteenth Applicant:

TRACEY EXTON

Nineteenth Applicant:

ROCHELLE RICHARDS

Twentieth Applicant:

KERRY HARRIS

Twenty First Applicant:

JANINE PEOPLES

Twenty Second Applicant:

TERESA URBANIAK

Twenty Third Applicant:

THERESA BRISTOW

Twenty Fourth Applicant:

MYGAL GEBIE

Twenty Fifth Applicant:

MERRILYN HOSKING

Respondent:

BANSLEY PTY LTD

File Number:

PEG 68 of 2011

Judgment of:

Lucev FM

Hearing date:

23 May 2011

Date of Last Submission:

23 May 2011

Delivered at:

Perth

Delivered on:

13 June 2011

REPRESENTATION

For the Applicant:

Mr A Clark…

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.

Continue reading Corcoran & Ors v Bansley Pty Ltd

Details

AGLC: Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440
Case: [2011] FMCA 440
Decision Date: 13 June 2011

CaseChat Overview and Summary

The case of Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440, heard by the Federal Magistrates Court of Australia, involved a dispute between 25 applicants, who were employees of Bansley Pty Ltd, and the respondent, Bansley Pty Ltd. The applicants sought to be represented by an employee of United Voice, an industrial association, while the respondent sought to be represented by its own employee, Mr. Graham McCorry. The central issues before the court were whether an official of an industrial association could represent the applicants in small claims proceedings, and whether Mr. McCorry could represent Bansley Pty Ltd.

The court found that Mr. Clark, an employee of United Voice, had no right to represent the applicants in small claims proceedings. This conclusion was reached by interpreting the Fair Work Act 2009 (Cth) and the Fair Work (Registered Organisations) Act 2009 (Cth). The specific provision of the Fair Work Act s.548(8) concerning representation by an industrial association in small claims proceedings took precedence over the more general provisions of the Fair Work (Registered Organisations) Act. As there were no applicable regulations, Mr. Clark, who was an official of an industrial association, had no right to represent the applicants.

The court also considered Bansley's application for Mr. McCorry to represent the company. The court found that it was appropriate to grant Mr. McCorry leave to represent Bansley, taking into account factors such as the relative complexity of the matter, the objects and purposes of the relevant legislation, and whether Bansley could be effectively represented by Mr. McCorry. The court concluded that although there might be some prejudice to the applicants if they had to represent themselves, it was appropriate to grant Mr. McCorry leave to appear for Bansley.

Orders