Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson - [2020] FCA 697

FEDERAL COURT OF AUSTRALIA
Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697

Appeal from: Application for leave to appeal: Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2019] FCCA 3643

File number: QUD 788 of 2019

Judge: LOGAN J

Date of judgment: 14 February 2020

Catchwords:
EMPLOYMENT AND INDUSTRIAL RELATIONS – application for leave to appeal – where the Federal Circuit Court of Australia (Federal Circuit Court) made a declaration of contravention of s 348 of the Fair Work Act 2009 (Cth) – where the allegation which raised s 348 for consideration as a way of characterising the conduct as a contravention was struck out – whether a formal amendment for variance was made in the Federal Circuit Court to raise s 348 for consideration following the strikeout

PRACTICE AND PROCEDURE – where the Federal Circuit Court made a declaration of contravention – where the hearing of the Federal Circuit Court matter for submissions on the question of penalty and compensation was adjourned to a date to be fixed – whether the declaration as to contravention is an interlocutory order – whether leave to appeal is required to appeal the declaration

Legislation:
Crimes Act 1914 (Cth)

Fair Work Act 2009 (Cth) s 348

Federal Court of Australia Act 1976 (Cth) s 24

Judiciary Act 1903 (Cth) s 79

Trade Practices Act 1974 (Cth) s 55

Justices Act 1886 (Qld) s 48

Cases cited:
Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCA 41

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Hollis v Clark (1981) 40 ALR 179

Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2011] FCA 401

Tyson v Heiko Constructions Trading As Heiko Constructions Pty Ltd [2019] FCCA 3643

Date of hearing: 14 February 2020

Registry: Queensland

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: Mr J Murdoch QC

Solicitor for the Applicant: James Conomos Lawyers

Counsel for the Respondent: The respondent appeared in person

ORDERS

QUD 788 of 2019

BETWEEN:
HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD

Applicant

AND:
JOHN ROBERT TYSON

Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

14 FEBRUARY 2020

THE COURT ORDERS THAT:
1.Save for paragraphs 1, 2, 3, 4, 5, 26, 27, 28, 29, 36 and 37 (the admissible paragraphs), the respondent’s affidavit filed 14 February 2020 be read as if the remaining paragraphs were struck out.
2.No person, other than a party to the proceedings or a lawyer acting as a representative of a party to the proceedings or a Judge or officer of the Court, may access a copy of the respondent’s affidavit filed 14 February 2020, save for the admissible paragraphs, without leave of the Court or Judge.
3.Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth),…

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: [2020] FCA 697
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the matter of Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson, the applicant sought leave to appeal against certain orders made by the Federal Circuit Court of Australia (Federal Circuit Court). The Federal Circuit Court had made a declaration of contravention of section 348 of the Fair Work Act 2009 (Cth) and the applicant contested the validity of this declaration. The applicant also raised issues concerning the procedural fairness of the proceedings before the Federal Circuit Court.

The legal issues in the case centred on whether the Federal Circuit Court's declaration of contravention was an interlocutory order that required leave to appeal and whether the applicant was required to make a formal amendment for variance following the strikeout of an allegation. Additionally, the court had to consider whether the applicant needed to obtain leave to appeal against the declaration of contravention and whether the application for a stay of the penalty and compensation order could be adjourned.

The court ruled that the declaration of contravention was indeed an interlocutory order, and thus leave to appeal was necessary. The court also found that the applicant did not need to make a formal amendment for variance after the strikeout of the allegation. Furthermore, the court granted leave to appeal against the declaration of contravention, but noted that the application for a stay of the penalty and compensation order could be adjourned. The court further recommended that the respondent be represented under the Bar Association of Queensland Pro Bono Referral Service.

The court made several orders, including that the respondent's affidavit filed on 14 February 2020 be read as if the remaining paragraphs were struck out, except for certain specified paragraphs. The court also granted the applicant leave to appeal against the declaration of contravention and ordered that the application for a stay of the penalty and compensation order be adjourned. Lastly, the court recommended that the respondent be represented under the Bar Association of Queensland Pro Bono Referral Service, if possible.

Orders

Orders of the court

1. Save for paragraphs 1, 2, 3, 4, 5, 26, 27, 28, 29, 36 and 37 (the admissible paragraphs), the respondent’s affidavit filed 14 February 2020 be read as if the remaining paragraphs were struck out.

2. No person, other than a party to the proceedings or a lawyer acting as a representative of a party to the proceedings or a Judge or officer of the Court, may access a copy of the respondent’s affidavit filed 14 February 2020, save for the admissible paragraphs, without leave of the Court or Judge.

3. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant be granted leave to appeal on the grounds set out in the draft notice of appeal annexed to the application for leave to appeal, against the declaration, being Order 1 of the Orders made in the Federal Circuit Court in proceeding BRG823/2018 Tyson v Heiko Constructions T/A Heiko Constructions Pty Ltd (FCC proceedings) on 12 December 2019 and Order 3 of the Orders made in those proceedings.

4. The application for a stay of Order 3 made in the FCC proceedings be adjourned to a date to be fixed, with liberty to apply for its relisting on two clear business days notice.

5. It is desirable that the respondent be represented under the Bar Association of Queensland Pro Bono Referral Service, if possible. The Registrar is to take such steps as may be necessary to facilitate the provision of representation via that service.

6. In relation to the application for leave to appeal, 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:	Application for leave to appeal: Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2019] FCCA 3643
File number:	QUD 788 of 2019
Judge:	LOGAN J
Date of judgment:	14 February 2020
Catchwords:	EMPLOYMENT AND INDUSTRIAL RELATIONS – application for leave to appeal – where the Federal Circuit Court of Australia (Federal Circuit Court) made a declaration of contravention of s 348 of the Fair Work Act 2009 (Cth) – where the allegation which raised s 348 for consideration as a way of characterising the conduct as a contravention was struck out – whether a formal amendment for variance was made in the Federal Circuit Court to raise s 348 for consideration following the strikeout PRACTICE AND PROCEDURE – where the Federal Circuit Court made a declaration of contravention – where the hearing of the Federal Circuit Court matter for submissions on the question of penalty and compensation was adjourned to a date to be fixed – whether the declaration as to contravention is an interlocutory order – whether leave to appeal is required to appeal the declaration
Legislation:	Crimes Act 1914 (Cth) Fair Work Act 2009 (Cth) s 348 Federal Court of Australia Act 1976 (Cth) s 24 Judiciary Act 1903 (Cth) s 79 Trade Practices Act 1974 (Cth) s 55 Justices Act 1886 (Qld) s 48
Cases cited:	Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCA 41 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Hollis v Clark (1981) 40 ALR 179 Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2011] FCA 401 Tyson v Heiko Constructions Trading As Heiko Constructions Pty Ltd [2019] FCCA 3643
Date of hearing:	14 February 2020
Registry:	Queensland
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Applicant:	Mr J Murdoch QC
Solicitor for the Applicant:	James Conomos Lawyers
Counsel for the Respondent:	The respondent appeared in person