Cowdery v Adidem Pty Ltd - [2014] VSC 132

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 05423

NIGEL COWDERY	Appellant
v
ADIDEM PTY LTD trading as THE BODY SHOP (ACN 006 122 872)	Respondent

---

JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2013
DATE OF JUDGMENT:	1 April 2014
CASE MAY BE CITED AS:	Cowdery v Adidem Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 132

---

APPEAL FROM THE MAGISTRATES’ COURT — whether a final order was made in published reasons — no certified extract from register of an order — entry in case log that orders made — parties and Magistrate regarded reasons as the substantive determination — Magistrate recalled part of the determination — whether the whole then recalled — held: order made and so appeal out of time — whether exceptional circumstances shown — recall of part of the order found to constitute exceptional circumstances – Magistrates’ Court Act 1989 ss 18,109 — Supreme Court Act 1986 s 17 — Civil Procedure Act 2010 ss 19,20 — Magistrates’ Court General Civil Procedure Rules 2010 rr 1.13, 59.02, 59.03, 59.08, 60.04, 60.05 — Supreme Court (General Civil Procedure) Rules 2005 rr 64.01, 64.03

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G. Jardine	McDonald Murholme Barristers & Solicitors
For the Respondent	Mr A. Galbraith	Nevett Ford Melbourne Lawyers

HER HONOUR:

Introduction

This appeal arises out of the termination of the employment of the appellant, Mr Cowdery, by the respondent (“the Body Shop”). Mr Cowdery had declined to accept the Body Shop’s requirement that he move the location of his employment from Mulgrave to South Melbourne.

Mr Cowdery contended that his position had been made redundant and brought proceedings against the Body Shop in the Magistrates’ Court seeking redundancy pay. He relied on two contractual bases (implied term or express oral term) and/or statutory entitlements under the Fair Work Act 2009. Mr Cowdery also sought in the Magistrates’ Court the imposition of a penalty on the Body Shop under the Fair Work Act, interest and costs.

Mr Cowdery failed in the Magistrates’ Court in respect of both his contractual claims, and also in respect of his claim for a penalty to be imposed. He succeeded in respect of a statutory entitlement under the Fair Work Act.

Mr Cowdery by this appeal wishes to challenge the dismissals by the Magistrate of his contractual claims and his claim that a penalty should be imposed. His notice of appeal filed 18 October 2013 contains seven questions of law directed to the dismissal of his contractual claims (questions of law 1 to 7) and a further eleven questions of law directed to the dismissal of his claim for a penalty (questions of law 8 to 19 inclusive).

The Body Shop asserts that only the appeal against the dismissal of the claim for penalty is within time, and that leave to appeal out of time against the dismissal of the contractual claims…

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 Cowdery v Adidem Pty Ltd

Details

AGLC: Cowdery v Adidem Pty Ltd [2014] VSC 132
Case: [2014] VSC 132
Decision Date: 1 April 2014

CaseChat Overview and Summary

In Cowdery v Adidem Pty Ltd, the dispute centred on the validity of an appeal from the Magistrates' Court of Victoria. The appellant, Cowdery, sought to appeal a decision made by the Magistrates' Court, contending that the appeal was out of time. The primary legal issues before the court were whether a final order had been made in the published reasons and whether exceptional circumstances existed that would permit the appeal to proceed despite the time constraints.

The court examined whether the Magistrates' Court had indeed made a final order as part of its substantive determination. The appellant argued that the absence of a certified extract from the register of an order and the reliance on an entry in the case log that orders were made, coupled with the parties' and the Magistrate's belief that the reasons were the substantive determination, meant that no final order was made. However, the court found that once the Magistrate recalled part of the determination, the entire order was recalled, thereby constituting a final order. Consequently, the court determined that the order was indeed made, and the appeal was not out of time. Furthermore, the court held that the recall of part of the order by the Magistrate constituted exceptional circumstances under the relevant legislation and rules, permitting the appeal to proceed.

The court's reasoning and outcome underscored the importance of adhering to procedural rules and the stringent criteria required to show exceptional circumstances in appeals. The appeal was allowed based on the finding that the recall of the order constituted exceptional circumstances. The final orders of the court were that the appeal was permitted to proceed, and the case would be remitted back to the Magistrates' Court for further consideration on the merits.

Orders