FEDERAL COURT OF AUSTRALIA
Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627
Appeal from: Industrial Magistrates Court of Western Australia (M90 of 2017 & M92 of 2017, Orders of 17 November 2017) File number: WAD 423 of 2018
WAD 424 of 2018Judge: COLVIN J Date of judgment: 3 October 2019 Catchwords: INDUSTRIAL LAW - appeal from decision of Industrial Magistrate - where appellants had undertaken work and received no payment - where employer kept no records - consideration of record keeping obligation under s 557C of the Fair Work Act 2009 (Cth) - where employer had burden of disproving the allegation made by employees - where claim brought under the small claims procedure in the Industrial Magistrates Court - consideration of the nature of the appeal - whether the magistrate erred in misapplying the burden of proof under s 557C - whether the magistrate erred in failing to draw an adverse inference from the employer's failure to call evidence from any material witnesses - finding that the employer failed to discharge the burden of proof - appeal allowed Legislation: Fair Work Act 2009 (Cth) ss 45, 539, 548, 557C, 565
Federal Court of Australia Act 1976 (Cth) ss 24, 27, 28
Cases cited: A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd [2018] FCA 355
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Ghimire v Karriview Management Pty Ltd [2019] FCA 1108
Treasury Wine Estates Vintners Limited v Pearson [2019] FCAFC 21
Date of hearing: 25 September 2019 Registry: Western Australia Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 42 Counsel for the Appellants: Ms M Georgiou (pro bono) Counsel for the Respondent: The Respondent did not appear ORDERS
WAD 423 of 2018 BETWEEN: AMRIT GHIMIRE
Appellant
AND: KARRIVIEW MANAGEMENT PTY LTD (ABN 46063633572)
Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
3 OCTOBER 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 1 and 2 made by the Industrial Magistrates Court of Western Australia in claim M 90 of 2017 on 17 November 2017 be set aside and in lieu thereof it be ordered that:
(a)there be judgment for the claimant;
(b)the respondent do pay the claimant the sum of $10,371.02; and
(c)the respondent shall pay the claimant pre-judgment interest fixed in the sum of $1,542.44.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 424 of 2018 BETWEEN: FULMAYA SHARMA
Appellant
AND: KARRIVIEW MANAGEMENT…
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- Case
- [2019] FCA 1627
- Decision Date
CaseChat Overview and Summary
The Federal Court held that the Industrial Magistrate misapplied the burden of proof under section 557C. The court noted that the respondent had the burden of disproving the allegations made by the Ghimires. Furthermore, the court found that the Industrial Magistrate erred in not drawing an adverse inference from the respondent's failure to call evidence from any material witnesses. Given these errors, the Federal Court found that the respondent failed to discharge the burden of proof. Consequently, the appeal was allowed, and the orders made by the Industrial Magistrates Court were set aside. Instead, the Federal Court ordered that there be judgment for the Ghimires, that the respondent pay the Ghimires the sum of $8,183.92, and that the respondent pay the Ghimires pre-judgment interest fixed in the sum of $1,217.16. The Federal Court made no order as to costs.
Orders
Orders of the court
1. The appeal be allowed.
2. Orders 1 and 2 made by the Industrial Magistrates Court of Western Australia in claim M 92 of 2017 on 17 November 2017 be set aside and in lieu thereof it be ordered that:
(a) there be judgment for the claimant;
(b) the respondent do pay the claimant the sum of $8,183.92; and
(c) the respondent shall pay the claimant pre-judgment interest fixed in the sum of $1,217.16.
3. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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