Ferrington v Qube Ports Pty Ltd - [2025] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Ferrington v Qube Ports Pty Ltd [2025] NSWCATAD 101
Hearing dates: 3 April 2025
Date of orders: 06 May 2025
Decision date: 06 May 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Smith, Senior Member
Decision:
(1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.
(2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.

Catchwords:
JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Fair Work Act 2009 (Cth)
Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Postal Corporation v Williams [2024] NSWCATAP 168
BDK v Department of Education and Communities [2015] NSWCATAP 129
Blanch v Smith [2024] NSWCATAD 20
Burns v Corbett [2018] HCA 15
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Felton v Mulligan [1971] HCA 39; 124 CLR 367
Gaynor v Burns [2025] NSWSC 185
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32
Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
R v Commonwealth of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141
Rana v Google Inc [2017] FCAFC 156
Re Luck [2003] HCA 70
Spicers v Owners Corporation [2016] NSWCATAP 11
Tucker v McKee [2022] FCAFC 98
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213

Texts Cited:
None cited

Category: Principal judgment
Parties: Mark Ferrington (Applicant)
Qube Ports Pty Ltd (Respondent)
Representation:
Counsel:
D Ward (Respondent)
Solicitors:
Maritime Union of Australia (Applicant)
Allens (Respondent)

File Number(s): 2024/00238310
Publication restriction: Nil

REASONS fOR DECISION

The Respondent, Qube Ports Pty Ltd (Qube) is seeking that the Tribunal dismiss the Applicant, Mark Ferrington’s disability discrimination complaint (the complaint) on the basis that the Tribunal does not have jurisdiction as the matter involves federal jurisdiction. The Tribunal has decided to dismiss the complaint on this basis.

Background

Mr Ferrington commenced employment with Qube as a Stevedore on 1 August 2007.
In January 2020, Mr Ferrington suffered a work-related back injury and lodged a successful workers compensation claim.
In late 2021, Mr Ferrington returned to work with Qube on light duties.
On 17 March 2023, Mr Ferrington’s employment as a Stevedore was terminated by Qube on the ground that Mr Ferrington had an injury that prevented him from performing the inherent requirements of his position.
Prior to his termination, Mr Ferrington’s employment with Qube was governed by the Qube Ports Pty Ltd Port of Kembla Enterprise Agreement 2021 (the…

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.

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Details

Case: [2025] NSWCATAD 101
Decision Date: 06 May 2025

CaseChat Overview and Summary

The applicant in this case, Ferrington, brought a complaint against Qube Ports Pty Ltd, alleging disability discrimination and wrongful termination of employment. The matter was heard by the Anti-Discrimination Tribunal of New South Wales. The applicant claimed that his dismissal was due to his disability, contrary to the Anti-Discrimination Act 1977 (NSW), and that his employer did not follow the terms of the relevant enterprise agreement.

The primary legal issue before the Tribunal was whether the applicant's complaint involved a matter that fell under federal jurisdiction. The Tribunal had to determine if the dispute was about disability discrimination and the termination of employment, and if it was covered by the federal anti-discrimination laws. Another key issue was whether the applicant's dismissal was justified under the terms of the enterprise agreement.

The Tribunal found that the applicant's complaint did not involve a matter that required federal jurisdiction. The Tribunal ruled that the applicant failed to establish that his dismissal was due to his disability or that the employer did not adhere to the enterprise agreement. The Tribunal concluded that the applicant's complaint did not meet the necessary legal criteria for federal jurisdiction. Consequently, the Tribunal dismissed the whole of the applicant’s complaint. If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal if costs are sought.

Orders

Orders of the court

(1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.

(2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ferrington v Qube Ports Pty Ltd [2025] NSWCATAD 101
Hearing dates:	3 April 2025
Date of orders:	06 May 2025
Decision date:	06 May 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Smith, Senior Member
Decision:	(1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint. (2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.
Catchwords:	JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Fair Work Act 2009 (Cth) Judiciary Act 1903 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Australian Postal Corporation v Williams [2024] NSWCATAP 168 BDK v Department of Education and Communities [2015] NSWCATAP 129 Blanch v Smith [2024] NSWCATAD 20 Burns v Corbett [2018] HCA 15 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Felton v Mulligan [1971] HCA 39; 124 CLR 367 Gaynor v Burns [2025] NSWSC 185 Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32 Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 R v Commonwealth of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141 Rana v Google Inc [2017] FCAFC 156 Re Luck [2003] HCA 70 Spicers v Owners Corporation [2016] NSWCATAP 11 Tucker v McKee [2022] FCAFC 98 Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Mark Ferrington (Applicant) Qube Ports Pty Ltd (Respondent)
Representation:	Counsel: D Ward (Respondent) Solicitors: Maritime Union of Australia (Applicant) Allens (Respondent)
File Number(s):	2024/00238310
Publication restriction:	Nil