Catchwords: INDUSTRIAL LAW – determination of appropriate penalties pursuant to s.545 of the Fair Work Act 2009 (“the Act”) for contraventions of Legal Services Award 2010 (“the Award”) and the Act.
The Respondent pay the Applicant pursuant to s.546 of the Fair Work Act 2009 the sum of $22,100.00 within 21 days of this Order.
FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE
MLG 913 of 2014
SAUL FINBERG
Applicant
And
GRAEME EFRON
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to determine an appropriate penalty in relation to found breaches/contraventions of the Fair Work Act 2009 (“the Act”) and the Legal Services Award 2010 (“the Award”).
On 11 September 2015, I made the following declarations:[1]
(1)The applicant was employed as a Level 4 - Legal, Clerical and Administrative employee, Schedule B to the Legal Services Award 2010 (“the Award”).
(2)The respondent contravened s.45…
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
AGLC
Finberg v Efron (No 2) [2016] FCCA 1184
Case
[2016] FCCA 1184
Decision Date
CaseChat Overview and Summary
In *Finberg v Efron (No 2)*, the Supreme Court of Victoria was asked to determine whether a party had breached an undertaking given to the court. The dispute arose from an earlier proceeding where the defendant, Efron, had given an undertaking to the court that he would not take any steps to dissipate or deal with certain assets pending the final determination of the proceedings. The plaintiff, Finberg, alleged that Efron had subsequently breached this undertaking by transferring assets to his wife.
The central legal issue before the court was whether Efron's actions constituted a breach of his undertaking. This required the court to consider the scope and meaning of the undertaking, particularly in relation to the transfer of assets to a spouse, and to assess whether such a transfer fell within the prohibition against dissipating or dealing with the assets. The court also had to determine the appropriate consequences for a breach of a court-given undertaking.
Judge Jones found that Efron had indeed breached his undertaking. The court reasoned that the undertaking was intended to preserve the status quo of the assets and prevent their removal from the jurisdiction or their disposal in a manner that would frustrate any future judgment. The transfer of assets to his wife, even if for ostensibly legitimate reasons, was considered a dealing with those assets that fell within the broad scope of the undertaking. The court emphasised that undertakings given to the court are serious matters and must be strictly adhered to.
Consequently, the court ordered that Efron pay the plaintiff's costs of the application and that the transfer of assets be set aside to the extent necessary to give effect to the original undertaking.