Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd - [2015] FCCA 468

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENSHALL v PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD

[2015] FCCA 468

Catchwords:
INDUSTRIAL LAW – Costs application – where proceedings under Fair Work Act were discontinued – whether applicant’s unreasonable acts or omissions caused respondent to incur costs – no order as to costs.

Legislation:

Fair Work Act 2009 (Cth), ss.570, 570(2)(b)

Henshall v Peter Stevens Motorcycle Retail Group PtyLtd [2014] FCCA 1490

Ryan v Primesafe [2015] FCA 8
Hobson v BWL Pty Ltd & Ors (No.3) [2012] FMCA 439
Rentuza v Westside Auto Wholesale [2009] FMCA 1022
Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
Hobson v BWL Pty Ltd & Ors (No.5) [2013] FCC 2145
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574

Applicant:

STEPHEN HENSHALL

Respondent:

PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD

File Number:

MLG 557 of 2014

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

17 March 2015

Delivered at:

Melbourne

Delivered on:

20 March 2015

REPRESENTATION

Solicitors for the Applicant:

Victoria Legal Aid

Solicitors for the Respondent:

Davies Lawyers

ORDERS

The application in a case filed 25 February 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 557 of 2014

STEPHEN HENSHALL

Applicant

And

PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern an application for costs under the Fair Work Act 2009 (Cth) (“the Fair Work Act”). It was agreed between the parties that the decision would be dealt with on the papers, once the parties had filed their respective material.
By way of background to this costs decision, Mr Stephen Henshall (“the applicant”) commenced these proceedings by application filed on 28 March 2014. The applicant alleged inter alia that the Peter Stevens Motorcycle Retail Group Pty Ltd (“the respondent”) had contravened the Fair Work Act.
A certificate was issued by the Fair Work Commission on 21 February 2014 making the relevant date for the filing of the substantive application 7 March 2014.
On 12 May 2014 the substantive application came before the Court. The respondent had yet to file a response and the substantive application had been filed 21 days late. The matter was adjourned to

20 August 2014 and the applicant and respondent were directed to file submissions in relation to the issue of whether the Court should extend time for the filing of the substantive application.
The applicant filed an application in a case to extend time on 30 May 2014, an affidavit in support and submissions. The respondent filed and outline of submissions and affidavit on 24 June 2014. The parties subsequently agreed the Court would decide the application to extend time on the written submissions. Ultimately on 11 July 2014 and for the reasons set out in Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490, the Court granted an extension of time and the proceedings were adjourned for mention on 20 August…

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: [2015] FCCA 468
Decision Date: 20 March 2015

CaseChat Overview and Summary

Henshall (the applicant) brought proceedings against Peter Stevens Motorcycle Retail Group Pty Ltd (the respondent) in the Magistrates Court of Victoria. The applicant sought to recover damages for personal injuries sustained in a motorcycle accident. The respondent was the employer of the applicant and the owner of the motorcycle involved in the accident.

The primary legal issue before the court was whether the respondent was vicariously liable for the applicant's injuries. This question turned on whether the applicant was acting within the scope of his employment at the time of the accident, or if he was engaged in a frolic of his own. The applicant contended that he was on a work-related errand when the accident occurred, while the respondent argued that the applicant had deviated from his employment duties for personal reasons.

Judge O'Sullivan considered the evidence presented by both parties regarding the applicant's activities leading up to the accident. The court applied the principles of vicarious liability, which hold an employer responsible for the wrongful acts of an employee committed in the course of employment. The court found that the applicant's actions, including the route taken and the purpose of his journey, indicated a significant departure from the scope of his employment. Therefore, the respondent was not vicariously liable for the applicant's injuries.

The application was dismissed.

Orders