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Ghimire v Karriview Management Pty Ltd (No 2)

Ghimire v Karriview Management Pty Ltd (No 2)

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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 2018

Judge: 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

Lee v Lee [2019] HCA 28

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…

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: [2019] FCA 1627
Decision Date: 3 October 2019

CaseChat Overview and Summary

The appellants, Ghimire, brought an action against Karriview Management Pty Ltd, the respondent, in the Industrial Magistrates Court of Western Australia under the small claims procedure. The Ghimires alleged that they had performed work for the respondent but had not been paid. The respondent, however, did not keep any records of the employment or payment. The matter came before the Federal Court on appeal from the original decision of the Industrial Magistrate. The primary legal issue before the court was whether the Industrial Magistrate erred in misapplying the burden of proof under section 557C of the Fair Work Act 2009 (Cth). Additionally, the court considered whether the Industrial Magistrate erred in failing to draw an adverse inference from the respondent's failure to call evidence from any material witnesses.

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

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

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.

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 2018
Judge:	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 Lee v Lee [2019] HCA 28 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