FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILBERT v NSW AIR PTY LTD | [2017] FCCA 493 |
| Catchwords: INDUSTRIAL LAW – Application in a case – applicant failed to appear – application in a case to set aside orders pursuant to Rule 16.05(2)(a) – explanation for failure to appear – whether reasonable explanation – no evidence from applicant –whether prejudice – application in a case dismissed. |
| Legislation: Fair Work Act 2009, ss.12, 548 |
| Cases cited: Clifford & Mountford [2006] FMCAfam 450 |
| Applicant: | PETER GILBERT |
| Respondent: | NSW AIR PTY LTD |
| File Number: | MLG 2201 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2017 |
REPRESENTATION
| The Applicant: | Mr Miller, Industrial Advisor |
| The Respondent: | No appearance |
ORDERS
The application in a case filed 17 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2201 of 2016
| PETER GILBERT |
Applicant
And
| NSW AIR PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court today, is an application in a case filed on behalf of Peter Gilbert (“the applicant”) by the Australian Federation of Air Pilots (“the Union”). The Union is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), an industrial association as defined by s.12 of the Fair Work Act 2009 (Cth) (“the Act”), entitled to represent the applicant’s industrial interests and make an application to the Court. The respondent to the application in a case is NSW Air Pty Ltd (“the respondent”). The application in a case was filed on 17 November 2016. The application in a case was supported by an affidavit of Mr Simon David Miller an Industrial Advisor (“the Industrial Advisor”) from the Union who filed the application on behalf of the applicant.
Application in a case
Turning to the application in a case, the orders sought therein were as follows:
“1. That the proceedings for matter MLG2201/2016, which were dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001(Cth), be reinstituted; and
2. That a further hearing date be set.
Grounds
1. Due to an error, the Applicant’s representative was unaware of the hearing date, and as a consequence, the Applicant did not appear as required.”The affidavit of the Industrial Advisor sworn 17 November 2016 and filed in support of the application in case stated in paragraphs 1 through…
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- AGLC
- Gilbert v NSW Air Pty Ltd [2017] FCCA 493
- Case
- [2017] FCCA 493
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether NSW Air Pty Ltd had breached its contractual obligations to Mr. Gilbert, and if so, what damages were recoverable. This involved an examination of the terms of the contract between the parties and the conduct of NSW Air Pty Ltd in relation to those terms.
Judge O'Sullivan found that NSW Air Pty Ltd had indeed breached the contract. The court's reasoning focused on the interpretation of the contractual terms and the evidence presented regarding the defendant's performance. The legal principle applied was that a party who fails to perform their obligations under a contract may be liable for damages to the other party. The court determined that the damages awarded would compensate Mr. Gilbert for the loss he suffered as a direct result of the breach.
Orders
Orders of the court
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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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