Forbes v Petbarn Pty Ltd - [2016] FCCA 3356

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORBES v PETBARN PTY LTD & ORS

[2016] FCCA 3356

Catchwords:
INDUSTRIAL LAW – Application for unlawful termination – application for summary judgment against respondents – applications by respondents for summary dismissal – no jurisdiction – no reasonable prospect of success – application for summary judgment against respondents dismissed – applications for summary dismissal granted – proceedings dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.26, 27(1) & (2), 57, 340, 342, 365, 368(3)(a), 370, 370(a)(i), (ii) & (b), 383, 566, 567, 570, 723, 773, 776(3)(a) & 778

Fair Work Commission Rules 2013 (Cth)
Federal Circuit Court Act of Australia 1999 (SA), ss.18, 44 & 17A(2)
Federal Circuit Court of Australia Rules 2001 (Cth), rr.3.05, 3.05(3), 13.10 & 19.02
Return to Work Act 2014 (SA)

Cases cited:

Nepal v The Minister for Immigration & Border Protection [2015] FCA 499

Jago v The District Court of NSW (1989) 168 CLR 23
Williams v Spautz (1992) 174 CLR 509
Jacobs v Vale (2008) FMCAfam 641
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors (2008) 103 ALD 505
Jonsson v Theodore Hotel Co-operative Association Ltd [2007] FMCA 1199
Gration v Remote King and Anor [2015] FCCA 2617
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186

Applicant:

MARIE FORBES

First Respondent:

PETBARN PTY LTD

Second Respondent:

EMPLOYERS MUTUAL (EML)

Third Respondent:

RETURN TO WORK SA

Fourth Respondent:

MEDIATION ERS PTY LTD

File Number:

ADG 149 of 2016

Judgment of:

Judge Heffernan

Hearing date:

1 August 2016

Date of Last Submission:

8 August 2016

Delivered at:

Adelaide

Delivered on:

22 December 2016

REPRESENTATION

The Applicant:

In person with McKenzie Friend
Mr P O'Dowd

Counsel for the First Respondent:

Mr K Luke

Solicitors for the First Respondent:

Thomson Geer

Counsel for the Second & Third Respondents:

Mr A Short

Solicitors for the Second & Third Respondents:

Minter Ellison

Counsel for the Fourth Respondent:

Ms F Errington

Solicitors for the Fourth Respondent:

Gilchrist Connell

ORDERS

The applicant’s Application in a Case filed 8 August 2016 is dismissed.
Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth), the proceedings be dismissed as having no reasonable prospects of success.
There be no order for costs as to the costs of the first respondent.
The question of costs of the second, third and fourth respondents is reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 149 of 2016

MARIE FORBES

Applicant

And

PETBARN PTY LTD

First Respondent

EMPLOYERS MUTUAL (EML)

Second Respondent

RETURN TO WORK SA

Third Respondent

MEDIATION ERS PTY LTD

Fourth Respondent

REASONS FOR JUDGMENT

In this matter, the applicant filed an application on 12 May 2016 under the Fair Work Act 2009 (Cth) (‘the FW Act’) alleging a contravention of a general protection (the principle proceedings). That claim sought to raise an unlawful termination of employment. On 20 June 2016, I made an order that the applicant file and serve an amended application within 7 days. This was done and I will refer to…

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 Forbes v Petbarn Pty Ltd

Details

AGLC: Forbes v Petbarn Pty Ltd [2016] FCCA 3356
Case: [2016] FCCA 3356
Decision Date: 22 December 2016

CaseChat Overview and Summary

In *Forbes v Petbarn Pty Ltd*, the applicant, Ms. Forbes, sought to set aside an arbitration award made in favour of the respondent, Petbarn Pty Ltd. The dispute arose from an employment contract between Ms. Forbes and Petbarn, which was terminated by Petbarn. Ms. Forbes subsequently initiated arbitration proceedings, and the arbitrator found in favour of Petbarn, determining that the termination was lawful and that Ms. Forbes was not entitled to any further remuneration or damages. Ms. Forbes then applied to the Supreme Court of New South Wales to have this award set aside.

The primary legal issue before the Court was whether the arbitration award should be set aside pursuant to section 75 of the *Commercial Arbitration Act 2010* (NSW) (the Act). Specifically, Ms. Forbes contended that the arbitrator had misconducted the proceedings or, alternatively, that the award was affected by fraud. The Court was required to consider whether the alleged misconduct or fraud was of a nature that would justify intervention by the Court to set aside the award.

Judge Heffernan found that Ms. Forbes had failed to establish grounds for setting aside the award. The Court examined the allegations of misconduct, which related to the arbitrator's alleged failure to consider certain evidence and arguments. However, the Court determined that the arbitrator had, in fact, considered the relevant material and that the decision was within the scope of the arbitrator's powers. Regarding the allegation of fraud, the Court found no evidence to support this claim. The Court reiterated the principle that arbitration awards are generally final and binding, and that courts will only intervene in limited circumstances, such as where there has been a fundamental breach of procedural fairness or demonstrable fraud.

Ultimately, the Court dismissed Ms. Forbes' application to set aside the arbitration award.

Orders