Fair Work Ombudsman v Maclean Bay Pty Ltd - [2010] FCA 1378

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 1378

Parties: 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
Applicant

AND:
MACLEAN BAY PTY LTD (ACN 106 012 748)
First Respondent

WENDY 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
Applicant

AND:
MACLEAN BAY PTY LTD (ACN 106 012 748)
First Respondent

WENDY 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…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Maclean Bay Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FCA 1378
Decision Date: 9 December 2010

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against Maclean Bay Pty Ltd and Ms Wells in the Federal Court, alleging contraventions of the Fair Work Act. The respondents sought to have the proceedings dismissed or their pleadings struck out. The court was required to decide whether the applicant had no reasonable prospect of successfully prosecuting the proceeding, and if so, whether the pleadings should be dismissed or struck out. The court found that the pleadings raised triable issues in respect of Ms Wells's liability for the alleged contraventions, and therefore dismissed the motion to dismiss or strike out the pleadings. The court also dismissed the motion to dismiss the proceeding in so far as it concerned Ms Wells.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

When the Court reserved its judgment on the motion it indicated that it would adjourn the directions hearing in the proceeding to 20 December 2010, at 9.30 am EST (daylight saving time), in Melbourne (via telephone to Brisbane, if requested). At the time the Court informed the parties that it would publish these reasons on 9 December 2010. I encourage the parties to agree on appropriate consent orders to progress the proceeding, commencing with the defences of the respondents and possibly a referral to mediation. 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.Ultimate conclusion and order The Court is not satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding in so far as it concerns alleged contraventions by Ms Wells. I am, on the contrary, satisfied that the pleading raises triable issues in respect of Ms Wells’s liability for the alleged contraventions. Paragraph 1 of Ms Wells’s motion dated 7 September 2010 for an order under s 31A of the Federal Court Act will be dismissed. Paragraph 2 of the motion sought an order that, in the alternative, the pleading be struck out in so far as it concerns Ms Wells. No basis has been established for the making of any such order, either as to the pleading generally or specific aspects of it that affect Ms Wells. The Court will order as follows on the motion:1. The second respondent’s motion dated 7 September 2010 is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
Parties:		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

JUDGE:	MARSHALL J
DATE OF ORDER:	9 DECEMBER 2010
WHERE MADE:	HOBART (HEARD IN MELBOURNE)

JUDGE:	MARSHALL J
DATE:	9 DECEMBER 2010
PLACE:	HOBART (HEARD IN MELBOURNE)