Felstead v Gatto - [2011] VSC 617

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 1880
S CI 2011 4929

STEVEN ROSS FELSTEAD	Applicant
v
PAUL GATTO	Respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2011
DATE OF JUDGMENT:	29 November 2011
CASE MAY BE CITED AS:	Felstead v Gatto
MEDIUM NEUTRAL CITATION:	[2011] VSC 617

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JUDICIAL REVIEW AND APPEALS – claim in Magistrates’ Court of Victoria for unpaid wages – applicant claimed to be employed as secretary/treasure of industrial organisation and the elected holder of that office – magistrate stayed proceeding on basis that a person could not be the employed and elected holder of the office at the same time – application for judicial review of that decision – whether magistrate erred in law on the face of the record – Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 56.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr D Laidlaw	Mr Derek Norquay, The Law Centre, Wodonga
For the respondent	Mr M McKenney	Mallesons Stephen Jaques

HIS HONOUR:

In a proceeding issued in the Magistrates’ Court of Victoria, Steven Felstead claimed outstanding wages from the Victorian North East and Border Trades and Labour Council. He alleged he had been employed as the secretary/treasurer of the council on and from 9 December 2003. The wages related to periods of that employment in and between 2005 and 2008.

Paul Gatto was a member of the executive committee of the council, which was not incorporated. Certain legal problems arise when a proceeding is brought against an unincorporated association, none of which are necessarily irresolvable or need trouble us here.

In the proceeding in the Magistrates’ Court, Mr Gatto’s defence was (among other things) that Mr Felstead was not the employee of the council in the periods concerned. That was because Mr Felstead became the elected secretary/treasurer of the council on 25 February 2004. Accordingly, after that date, Mr Felstead performed the duties of secretary/treasurer as the unpaid holder of that elected office, not as a paid employee.

On that material ground, Mr Gatto made an application in the Magistrates’ Court for Mr Felstead’s proceeding to be struck out or stayed under rr 23.01, 23.02 or 23.03 of the Magistrates’ Court (General Civil Procedure) Rules 2010 (Vic). There were other grounds, but they are not here at issue. The magistrate upheld that application. Pursuant to r 23.01, her Honour ordered the proceeding to be stayed and Mr Felstead to pay Mr Gatto’s costs.

Mr Felstead issued an appeal to this court under s 109(1) of the Magistrates’ Court Act1989 (Vic) against the magistrate’s orders. Mr Gatto claimed the appeal was incompetent because the orders were not final in nature. Under s 109(1), only final orders are amenable to appeal. It is unnecessary to determine whether the orders made by the magistrate were final. Under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Mr Felstead issued a precautionary application…

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 Felstead v Gatto

Details

AGLC: Felstead v Gatto [2011] VSC 617
Case: [2011] VSC 617
Decision Date: 29 November 2011

CaseChat Overview and Summary

The applicant, Mr Felstead, sought judicial review of a decision made by a magistrate in the Magistrates’ Court of Victoria. Mr Felstead was the applicant in a claim for unpaid wages. He claimed to be the employee and the elected holder of the office of secretary/treasurer of an industrial organisation. The magistrate stayed the proceeding on the basis that a person could not simultaneously be employed and an elected holder of an office. Mr Felstead sought judicial review of that decision, claiming that the magistrate had erred in law on the face of the record.

The central legal issue in the case was whether the magistrate had correctly interpreted the law in staying the proceeding. Mr Felstead argued that he was both an employee and the elected holder of an office, and that this did not preclude him from bringing a claim for unpaid wages. The court had to determine whether the magistrate’s decision to stay the proceeding was legally sound.

The court found that the magistrate’s decision to stay the proceeding was not erroneous. The court held that the applicant could not be both an employee and an elected holder of an office in the context of the claim for unpaid wages. This was consistent with the principle that an elected office holder cannot be in a contractual employment relationship with the entity that they represent. The court found that the magistrate did not err in law, and the application for judicial review was dismissed.

No further orders were made as the application for judicial review was dismissed. The stay of the proceeding in the Magistrates’ Court remained in effect, and Mr Felstead’s claim for unpaid wages was not proceeding.

Orders