FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
Citation: Fair Work Ombudsman v Maclean Bay Pty Ltd
[2010] FCA 1378Parties: FAIR WORK OMBUDSMAN v MACLEAN BAY PTY LTD (ACN 106 012 748) and WENDY ANN WELLS File number: TAD 33 of 2010 Judge: MARSHALL J Date of judgment: 9 December 2010 Catchwords: PRACTICE AND PROCEDURE —Summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976, application by second respondent to dismiss proceedings summarily, in the alternative strike out pleadings under Order 11 Rule 16 of the Federal Court Rules, whether Court could be satisfied applicant had no reasonable prospect of successfully prosecuting proceeding. Legislation: Corporations Act 2001 (Cth) Part 5B.1
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1974 (Cth) s 51A
Work Place Relations Act 1996 (Cth) ss 728, 826(2)(a), 900, 901, 902.Federal Court of Australia Rules, Order 11 Rule 16.
Cases cited: Australian Building & Construction Commissioner v Construction Forestry Mining and Energy Union (2010) 187 FCR 293
Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union v John Holland Pty Ltd [2009] FCA 274
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299;[2007] FCAFC 87
Damevski v Giudice (2003) 133 FCR 438
Field v Perpetual Ltd [2010] FCA 1001
Keynes v Rural Directions Pty Ltd [2010] FCAFC 100
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Spencer v The Commonwealth of Australia (2010) 269 ALR 233
Quinlivan v The Australian Competition and Consumer Commission [2004] FCAFC 175.Date of hearing: 19 November 2010 Place: Hobart (Heard in Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the Applicant: Mr S Moore Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Second Respondent: Mr P W Hackett Solicitor for the Second Respondent: Colwell Wright
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 33 of 2010
BETWEEN: FAIR WORK OMBUDSMAN
ApplicantAND: MACLEAN BAY PTY LTD (ACN 106 012 748)
First RespondentWENDY ANN WELLS
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
9 DECEMBER 2010
WHERE MADE:
HOBART (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
1.The second respondent’s motion dated 7 September 2010 is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 33 of 2010
BETWEEN: FAIR WORK OMBUDSMAN
ApplicantAND: MACLEAN BAY PTY LTD (ACN 106 012 748)
First RespondentWENDY ANN WELLS
Second Respondent
JUDGE:
MARSHALL J
DATE:
9 DECEMBER 2010
PLACE:
HOBART (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
The second respondent, Ms Wells, applies pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) to dismiss the instant proceeding in so far as…
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- Case
- [2010] FCA 1378
- Decision Date
CaseChat Overview and Summary
The court considered the evidence and submissions presented by the parties and concluded that the applicant had a reasonable prospect of successfully prosecuting the proceeding in so far as it concerned Ms Wells. The court noted that the pleadings raised triable issues, and that the matter should proceed to trial. The court also rejected the argument that the proceeding should be dismissed or the pleadings struck out on the basis of procedural unfairness or delay. The court found that the applicant had acted reasonably and that there were no grounds for dismissing the proceeding or striking out the pleadings. The court further noted that the matter could be resolved through mediation or other means of dispute resolution, and encouraged the parties to explore these options.
The court dismissed the motion to dismiss the proceeding in so far as it concerned Ms Wells, and also dismissed the motion to strike out the pleadings. The court made no order as to costs, but noted that the parties were encouraged to agree on appropriate consent orders to progress the proceeding. The directions listing for 20 December 2010 may then become unnecessary and further adjourned by consent, to a mutually convenient time for the Court and the parties. The court's decision ensures that the matter will proceed to trial, and that the issues raised by the applicant will be determined by a properly constituted tribunal.
Orders
Orders of the court
1. The second respondent’s motion dated 7 September 2010 is dismissed.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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