Legal Research
Cases
Henry v Leighton Admin Services Pty Ltd & Anor

Henry v Leighton Admin Services Pty Ltd & Anor

Link copied

Case Copied 16 July 2015 48 min read

Contents

On this page

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENRY v LEIGHTON ADMIN SERVICES PTY LTD & ANOR

[2015] FCCA 1923

Catchwords:
PRACTICE AND PROCEDURE – Whether, within the meaning of s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth), the applicant has a reasonable prospect of successfully prosecuting claims based on alleged contraventions of s.44, s.340, s.345, and s.351 of the Fair Work Act 2009 (Cth) (Act) – scope of expression “reasonable prospect of successfully prosecuting proceeding”.

INDUSTRIAL LAW – General protections - whether a person’s being “able” to make a complaint or inquiry within the meaning of s.341(1)(c)(ii) of the Act requires that the complaint or inquiry be grounded on some source of legal entitlement – whether a complaint about an employer’s financial disclosure obligations under the Corporations Act 2001 (Cth) (Corps Act) made by an employee whose duties included the development of a system that identified outstanding unapproved project revenue and under-claims of projects in which the employer was involved and to analyse key projects from a project delivery risk perspective was a complaint made “in relation to” the employee’s employment.

INDUSTRIAL LAW – General protections – whether an opinion that a company should comply with obligations imposed by the Corps Act is a “political opinion” within the meaning of s.351(1) of the Act.

INDUSTRIAL LAW – General protections – whether representations alleged to have been made were about workplace rights – whether on the pleadings the representations were or became false or misleading – whether on the pleadings the representations were made knowingly or recklessly.

INDUSTRIAL LAW – National Employment Standards – redundancy – whether, within the meaning of s.119 of the Act, the first respondent terminated the applicant’s employment because the first respondent no longer required the job done by the applicant to have been done by anyone.

PRACTICE AND PROCEDURE – Whether statement of claim pleads facts sufficient to disclose a cause of action based on the second respondent’s being a person involved within the meaning of s.550 of the Act in the contraventions of the Act alleged against the first respondent.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 44, 119, 119(1),176, 262, 323(1), 340,

340(1)(a)(ii), 340(1)(a)(iii), 341(1), 341(1)(a), 341(1)(b), 341(1)(c),

341(1)(c)(ii),341(2), 342, 345, 351, 351(1), 550
Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 17A(2), 17A(3)
Federal Court of Australia Act 1976 (Cth), s.31A

Federal Court Rules 2011 (Cth) r.16.02(1)(d)

Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549
Australian Securities & Investments Commission v Citrofresh International Ltd [2007] FCA 1873
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044
Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257
Canada…

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.

Keep reading for free

Create a free CaseChat account to read Henry v Leighton Admin Services Pty Ltd & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 1923
Decision Date: 16 July 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Manousaridis considered an application by Henry against Leighton Admin Services Pty Ltd and another party. The dispute concerned alleged contraventions of the Fair Work Act 2009 (Cth), including general protections and National Employment Standards relating to redundancy. A key procedural issue was whether the applicant had a reasonable prospect of successfully prosecuting these claims, as contemplated by s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

The court was required to determine several legal issues. These included whether a complaint or inquiry made by an employee under s 341(1)(c)(ii) of the Fair Work Act requires a legal entitlement, and whether a complaint about an employer's financial disclosure obligations under the Corporations Act 2001 (Cth) was made "in relation to" the employee's employment. Further, the court had to consider whether an opinion advocating for compliance with the Corporations Act constituted a "political opinion" under s 351(1) of the Fair Work Act, and whether alleged representations were about workplace rights and were false or misleading. Finally, the court examined whether the applicant's employment was terminated because the job was no longer required to be done by anyone, and whether the second respondent was a person involved in the alleged contraventions.

Judge Manousaridis reasoned that assessing a "reasonable prospect of successfully prosecuting the proceeding" involves two distinct considerations: the likelihood of proving asserted facts and the likelihood of persuading the court that applicable legal principles entitle the applicant to a remedy. The court is generally better positioned to determine the latter in advance of a trial, assuming the asserted facts are true. If no reasonably arguable legal principles exist that would grant relief even if the facts are proven, then the applicant will be found to have no reasonable prospect of success. The court's analysis focused on whether the pleaded facts, if established, could support a cause of action under the relevant provisions of the Fair Work Act and the Corporations Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

First, the expression “successfully prosecuting the proceeding” refers to the steps the applicant must take to become entitled to a remedy. Whether in any proceeding an applicant will be entitled to a remedy turns on two things. The first is the applicant’s asserting in some way a set of facts (asserted facts), and proving those facts at trial to the extent the respondent does not admit them. The second is the Court accepting there are principles of law which, when applied to the asserted facts, will entitle the applicant to some remedy, assuming the applicant proves the asserted facts. Second, the word “prospect” directs attention to a future event and, more particularly, to the probability of the happening of a future event. The future event is what the Court will do after it hears the applicant’s claims at trial. Consistent with what is entailed in the notion of “successfully prosecuting the proceeding”, “prospect” directs attention to the probability of an applicant proving those asserted facts as are in issue and, assuming the applicant will prove those facts, the applicant persuading the Court there are principles of law that, when applied to the asserted facts, will entitle the applicant to a remedy. Third, the considerations that apply to assessing the prospect of an applicant’s being entitled to a remedy, assuming he or she will prove the asserted facts, are different from considerations that apply to assessing the prospect of the applicant proving the asserted facts. The Court will, at least in most cases, be in as good a position to determine in advance of a trial, as it will be after a trial, whether the asserted facts, if established, will entitle the applicant to a remedy. Whether the asserted facts will entitle the applicant to a remedy can be determined on the assumption that the asserted facts will be proved. The Court, however, will rarely be in as good a position in advance of a hearing as it would be after a hearing to determine whether the applicant will prove the asserted facts. Under our system of procedure, contested issues of fact are determined by a court only after the parties have been given the opportunity to present evidence, to test or undermine or contradict evidence presented against them by cross-examination and by adducing responsive evidence, and to make submissions about findings the Court should make on the evidence that has been presented. Further, whether or not a party will be able to adduce the necessary evidence, or at least adduce all the reasonably available evidence, cannot in many cases be known until after the applicant has had the benefit of pre-trial procedures for obtaining evidence, such as the issuing of subpoenas. Fourth, the differing considerations that apply to determining the prospect of the Court finding there are principles of law which will result in the applicant being granted a remedy if the asserted facts are proved, compared with the considerations that apply to determining whether the asserted facts will be proved, serve to identify the matters that are relevant to determining whether in any given case an applicant’s prospect of successfully prosecuting the proceeding is reasonable. Where the ground on which it is claimed an applicant has no reasonable prospect of successfully prosecuting a proceeding rests on the contention that there is no principle of law that would entitle the applicant to a remedy, even if the asserted facts are proved, the Court will answer the question whether the applicant has reasonable prospects of prosecuting his claim by assuming the asserted facts are true, and deciding whether there are principles of law which, on that assumption, will entitle the applicant to relief. If the Court finds there are no such legal principles or, at least, there are no reasonably arguable grounds for finding such legal principles exist, the Court will conclude the applicant has no reasonable prospect of successfully prosecuting the proceeding.

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.