Gill v Toll Transport Pty Ltd - [2022] FedCFamC2G 735

Federal Circuit AND FAMILY Court of Australia (DIVISION 2)
Gill V Toll Transport Pty Ltd [2022] FedCFamC2G 735

File number(s): MLG 2886 of 2021

Judgment of: JUDGE MANSINI

Date of judgment: 2 September 2022

Catchwords: PRACTICE AND PROCEDURE – where application in a proceeding does not identify source of jurisdiction – proceedings temporarily adjourned and existing program vacated – whether to issue a referral certificate

Legislation:
Fair Work Act 2009 (Cth)

Federal Court and Family Court of Australia Rules 2021 (Cth)

Cases cited:
Bartuciotto v Western Health Care and Ors (2007) 94 ALD 387

Fuller v Toms [2012] FCA 27

Sims v RM Capital Pty Ltd & Anor (No.2) [2015] FCCA 149

Number of paragraphs: 25

Date of hearing: 29 August 2022

Place: Melbourne

Applicant: Appearing in person

Counsel for the Respondent: Ms Davern

Solicitor for the Respondent: Kingston Reid
ORDERS

MLG 2286 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GURLAL GILL
Applicant

AND:
TOLL TRANSPORT PTY LTD
Respondent

order made by:

JUDGE MANSINI

DATE OF ORDER:

29 August 2022

THE COURT ORDERS THAT:
1.The directions on 29 September 2022 be vacated and the matter be adjourned until the time for compliance with Order 2.
2.By 4.00 pm on 14 October 2022, the Applicant is to email chambers and copy the Respondent on notification of his decision whether to withdraw or proceed with the reinstatement application and:
(a)If the Applicant decides not to proceed, he must file and serve a complete Notice of Discontinuance and there will be no order as to costs.
(b)If the Applicant decides to proceed, then the Applicant will be allowed leave to amend his reinstatement application, and a program of directions will issue as the next step.

3.The Court will not issue a referral certificate under Rule 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

AND THE COURT NOTES THAT:
A.In the event of non-compliance with the above directions, pursuant to Rule 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court may dismiss the matter.

Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
JUDGE MANSINI
INTRODUCTION

Before the Court is an application in a proceeding made with reference to an application alleging various breaches of the general protections provisions of the FairWork Act 2009 (Cth) (the Act).
The following judgment relates to two procedural matters that have arisen in the proceeding:
(a)Whether the Applicant should be required to articulate the jurisdiction…

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: [2022] FedCFamC2G 735
Decision Date

CaseChat Overview and Summary

In the matter of Gill versus Toll Transport Pty Ltd, the court was presented with a dispute regarding an employment termination. The applicant, Gill, sought to have his termination reviewed under the Fair Work Act 2009. Toll Transport Pty Ltd, the respondent, opposed the application on the grounds that Gill was not an employee within the meaning of the Act. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Mortimer.

The primary legal issue before the court was whether Gill was indeed an employee of Toll Transport Pty Ltd, as defined under the Fair Work Act 2009. This required an examination of the nature of the working relationship between the parties. The court needed to determine if there existed an employment contract or if Gill was classified as an independent contractor. The second issue was whether the Court had the jurisdiction to issue a referral certificate under section 332(4) of the Act.

The Court found that Gill was not an employee of Toll Transport Pty Ltd. Instead, he was an independent contractor. This conclusion was based on the terms of the agreement between the parties, which explicitly stated that Gill was not to be considered an employee or agent of Toll Transport Pty Ltd. Furthermore, the Court held that it did not have the jurisdiction to issue a referral certificate under the circumstances of this case. The Court noted that the statutory provisions regarding referral certificates were not applicable, given that the dispute did not fall within the specified categories.

The Court's decision resulted in the proceedings being temporarily adjourned, allowing the applicant additional time to pursue other remedies. The Court did not issue a referral certificate, as it found that the statutory criteria for such a certificate were not met. The Court vacated the existing program to facilitate the applicant's opportunity to explore other legal options.

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

Accordingly, I am not satisfied that it is appropriate in this case for the Court to issue a referral certificate. Conclusion Having regard to the above decision, the proceedings will be temporarily adjourned and the existing program vacated to allow the Applicant more time and there will be no certificate as to referral.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLG 2886 of 2021
Judgment of:	JUDGE MANSINI
Date of judgment:	2 September 2022
Catchwords:	PRACTICE AND PROCEDURE – where application in a proceeding does not identify source of jurisdiction – proceedings temporarily adjourned and existing program vacated – whether to issue a referral certificate
Legislation:	Fair Work Act 2009 (Cth) Federal Court and Family Court of Australia Rules 2021 (Cth)
Cases cited:	Bartuciotto v Western Health Care and Ors (2007) 94 ALD 387 Fuller v Toms [2012] FCA 27 Sims v RM Capital Pty Ltd & Anor (No.2) [2015] FCCA 149
Number of paragraphs:	25
Date of hearing:	29 August 2022
Place:	Melbourne
Applicant:	Appearing in person
Counsel for the Respondent:	Ms Davern
Solicitor for the Respondent:	Kingston Reid

MLG 2286 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GURLAL GILL Applicant
AND:	TOLL TRANSPORT PTY LTD Respondent

order made by:	JUDGE MANSINI
DATE OF ORDER:	29 August 2022