Doherty v Prospa Advance Pty Ltd - [2024] FedCFamC2G 391

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391

File number(s): SYG 1155 of 2023

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 30 April 2024

Catchwords: INDUSTRIAL LAW – Practice and procedure – application by respondent to set aside notice to produce issued by the applicant to the respondent – whether when determining whether to set aside the notice to produce it is relevant to determine whether the applicant had sufficiently articulated a claim for relief based on a breach of s 62(1) of the Fair Work Act 2009 (Cth) – relevant to so determine – whether the applicant had sufficiently articulated a claim for relief based on s 62(1) – applicant has not done so – notice to produce set aside – discussion about the meaning of the “overarching purpose” as provided for in s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Legislation:
Constitution (Cth) s 71

Fair Work Act 2009 (Cth) ss 44(1), 61(3), 62(1), 340(1), 539, 545, 546

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 192(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(2), 16.16

Federal Court Rules 2011 (Cth) rr 16.02(1)(d), 30.28

Cases cited:
Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100

Berry v CCL Secure Pty Ltd [2020] HCA 27

Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232

Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268

The Commissioner for Railways v Small (1938) 36 SR (NSW) 564

Trade Practices Commission v CC (NSW) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426

Wong v Sklavos [2014] FCAFC 120

Division: Fair Work

Number of paragraphs: 50

Date of hearing: 15 April 2024

Place: Sydney

Counsel for the Applicant: Mr G Fredericks, by video

Solicitor for the Applicant: Gibson Howlin Lawyers

Solicitor for the Respondent: Ms V Otavski of BlackBay Lawyers
ORDERS

SYG 1155 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ELEANOR ROSEMARY DOHERTY

Applicant

AND:
PROSPA ADVANCE PTY LTD ACN 154 775 667

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

30 APRIL 2024

THE COURT ORDERS THAT:
1.The notice to produce documents communicated by letter dated 22 February 2024 from the applicant’s solicitor to the respondent’s solicitor is set aside.
2.The matter be listed for a directions hearing at 9:30 am on 29 May 2024.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules…

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 Doherty v Prospa Advance Pty Ltd

Details

AGLC: Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391
Case: [2024] FedCFamC2G 391
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case of Doherty v Prospa Advance Pty Ltd involved an application by the respondent, Prospa Advance Pty Ltd, to set aside a notice to produce issued by the applicant, Doherty, to the respondent. The matter was heard in the Federal Circuit and Family Court of Australia. The primary dispute centred around the procedural fairness of the notice to produce and whether the applicant had sufficiently articulated a claim for relief based on a breach of section 62(1) of the Fair Work Act 2009 (Cth).

The court had to determine two main legal issues. First, whether it was relevant to consider if the applicant had sufficiently articulated a claim for relief based on a breach of section 62(1) of the Fair Work Act 2009 (Cth) when deciding whether to set aside the notice to produce. Second, if the applicant had indeed sufficiently articulated such a claim for relief. The court concluded that while it was relevant to consider the sufficiency of the applicant's claim for relief in the context of setting aside the notice to produce, the applicant had not sufficiently articulated a claim for relief based on section 62(1) of the Fair Work Act 2009 (Cth). Consequently, the court found that the notice to produce should be set aside.

The court's reasoning was grounded in the overarching purpose of section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This section mandates that the court must consider procedural fairness in its proceedings, which includes the necessity to ensure that any orders or notices issued are justifiable and proportionate. The court held that the applicant's failure to sufficiently articulate a claim for relief based on a breach of section 62(1) of the Fair Work Act 2009 (Cth) undermined the procedural fairness of the notice to produce, thus leading to the decision to set it aside. The court also briefly discussed the meaning of the "overarching purpose" as provided for in section 190(1) of the Act, underscoring the importance of procedural fairness in judicial proceedings.

The final orders of the court were that the notice to produce issued by the applicant to the respondent be set aside. The court emphasised the necessity for the applicant to sufficiently articulate a claim for relief based on a breach of section 62(1) of the Fair Work Act 2009 (Cth) in any future proceedings. This decision highlights the court's commitment to procedural fairness and the importance of clear and sufficient articulation of claims in industrial law matters.

Orders