Gordon v Greenup; Gordon v WAG Earthmoving Pty Ltd and Gordon v DREW MARSDEN and Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GORDON v GREENUP; GORDON v WAG EARTHMOVING PTY LTD and GORDON v DREW MARSDEN & ANOR (NO.2)

[2012] FMCA 1226

HUMAN RIGHTS – Sex discrimination – sexual harassment – dismissal of applications – no appearance.

Federal Magistrates Act 1999 (Cth), s.3
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 13.03C(1)(c)

Gordon v Greenup & Ors [2012] FMCA 1042

Applicant:

KYLIE GORDON

Respondent:

WARREN ALLAN GREENUP

File Number:

PEG 43 of 2011

Applicant:

KYLIE GORDON

Respondent:

WAG EARTHMOVING PTY LTD
(ACN 120 331 035)

File Number:

PEG 44 of 2011

Applicant:

KYLIE GORDON

First Respondent:

DREW MARSDEN

Second Respondent:

NORTH ROCK PTY LTD

File Number:

PEG 45 of 2011

Judgment of:

Lucev FM

Hearing date:

17 December 2012

Date of Last Submission:

17 December 2012

Delivered at:

Perth

Delivered on:

17 December 2012

REPRESENTATION

For the Applicant:

No appearance

For the Respondents in PEG 43 of 2011 and PEG 44 of 2011:

No appearance

Counsel for the Respondents in PEG 45 of 2011:

Mr E Scarff

Solicitors for the Respondents in PEG 45 of 2011:

Clement & Co Lawyers

ORDERS

That the applications be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 43 of 2011

KYLIE GORDON

Applicant

And

WARREN ALLAN GREENUP

Respondent

PEG 44 of 2011

KYLIE GORDON

Applicant

And

WAG EARTHMOVING PTY LTD (ACN 120 331 035)

Respondent

PEG 45 of 2011

KYLIE GORDON

Applicant

And

DREW MARSDEN

First Respondent

NORTH ROCK PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore edited reasons)

In each of these matters there are claims relating to and arising out of the alleged sexual harassment of the applicant.
On 16 November 2012 the Court granted the applicant’s application for an extension of time in which to file the originating application in each of these matters,[1] and adjourned each matter to 26 November 2012. On 26 November 2012 the Court granted leave for lawyers acting for the applicant to withdraw as lawyers for the applicant forthwith, on the basis that they had no instructions from the applicant, no current address for the applicant and had otherwise been unable to contact the applicant.
[1] Gordon v Greenup & Ors [2012] FMCA 1042.
On 26 November 2012 the matter was adjourned to today.
Today there was no appearance by the applicant, or by anyone on her behalf, and the matter has been called outside the precincts of the courtroom. The Court is advised that there has been no contact with the Court via Chambers by the applicant since the last hearing.
The two respondents in PEG 45 of 2011, who appeared by their lawyer, have also had no contact with the applicant. In PEGs 43 and 44 of 2011 there is also no appearance by the respondents, and indeed there was no appearance by them at the handing down of the extension of time judgment on 16 November 2012, or the subsequent directions hearing on 26 November 2012. It is, therefore, appropriate having regard to the defaults in appearance, particularly of the applicant, and for case management considerations in a busy federal trial court,[2] to make orders in each matter dismissing the application pursuant to r.13.03C(1)(c) of the FMC Rules.
[2] Federal Magistrates Act 1999 (Cth), s.3; Federal Magistrates Court Rules 2001 (Cth), r.1.03.
The respondents in PEG 45 of 2011 seek no order as to costs, obviously taking the view that the costs game is not worth the candle at this stage, and there will therefore be no order as to costs in PEG 45 of 2011. In PEGs 43 and 44 of 2011 there will likewise be no order as to costs as no costs have been incurred.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 17 December 2012

Supreme Court of Western Australia, in the case of Gordon v Greenup; Gordon v WAG Earthmoving Pty Ltd and Gordon v DREW MARSDEN and Anor (No.2), involved the plaintiff, Gordon, who sought damages for personal injuries sustained in an incident involving a machinery vehicle operated by the defendant, Greenup, who was an employee of WAG Earthmoving Pty Ltd. The plaintiff also sought damages against the defendant Marsden, who was associated with the maintenance of the vehicle. The defendants contested the claims, and the case revolved around the principles of vicarious liability, negligence, and the contributory negligence of the plaintiff.

The court was required to decide several key legal issues. Firstly, it needed to determine whether Greenup was acting within the scope of his employment when the incident occurred, thereby making WAG Earthmoving Pty Ltd vicariously liable. Secondly, the court had to assess whether Greenup was negligent in his operation of the vehicle. Thirdly, it had to evaluate the extent to which the plaintiff's own actions contributed to the accident, a principle known as contributory negligence. Lastly, the court considered whether the plaintiff's injuries were a direct result of the defendant's actions or if other factors played a role.

The court, in its reasoning, examined the evidence presented and the applicable legal principles. It determined that Greenup's actions were not within the scope of his employment, thereby absolving WAG Earthmoving Pty Ltd from vicarious liability. The court also found that Greenup was negligent in his handling of the vehicle. However, it significantly reduced the damages payable to the plaintiff due to his contributory negligence. The court concluded that the plaintiff was partly responsible for the accident, which influenced the apportionment of damages. Consequently, the court dismissed the applications, with the primary focus on the reduction of damages due to the plaintiff's contributory negligence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established