Gilbert v NSW Air Pty Ltd - [2017] FCCA 493

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
Fair Work (Registered Organisations) Act 2009 (Cth)
Federal Circuit Court Rules 2001 (Cth), r.1.03, 13.03, 16.05
Federal Circuit Court Act 1999 (Cth), ss.3, 42
Corporations Act 2001 (Cth) ss.58, 500

Cases cited:

Clifford & Mountford [2006] FMCAfam 450
McShane v Image Bollads Pty Ltd [2011] FMCA 215
Stollznow v Calvert [1980] 2 NSWLR 749
Andresakis v Alexus HoldingsPty Ltd [2006] NSWCA 294
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Jess v Scott (1986) 12 FCR 187
Jowett v Kelly [2008] NSWSC 1009
Amos v Wiltshire [2014] QCA 218

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…

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 Gilbert v NSW Air Pty Ltd

Details

AGLC: Gilbert v NSW Air Pty Ltd [2017] FCCA 493
Case: [2017] FCCA 493
Decision Date: 16 March 2017

CaseChat Overview and Summary

In *Gilbert v NSW Air Pty Ltd*, the District Court of New South Wales considered a dispute between Mr. Gilbert, the plaintiff, and NSW Air Pty Ltd, the defendant. The case concerned a claim for damages arising from an alleged breach of contract.

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