Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd - [2014] FCCA 1490

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENSHALL v PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD

[2014] FCCA 1490

Catchwords:
INDUSTRIAL LAW – General protections court application under Fair Work Act 2009 – application for extension of time – whether extension of time is appropriate.

Legislation:

Fair Work Act 2009 (Cth) ss.361, 365, 370

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Sibert v Tiwilslands Shire Council (No.2) [2012] FMCA 1100
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553

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:

24 June 2014

Delivered at:

Melbourne

Delivered on:

11 July 2014

REPRESENTATION

Solicitors for the Applicant:

Victoria Legal Aid

Solicitors for the Respondent:

Davies Lawyers

ORDERS

That the time for the filing of the application be extended to 28 March 2014.
That the matter be listed for mention on 20 August 2014.

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 a request for an extension of time for the filing of a general protections court application under the Fair Work Act 2009 (Cth) (“the Fair Work Act”).
Mr Stephen Henshall (“the applicant”) filed his substantive application on 28 March 2014. Following the termination of his employment 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.
The background facts and circumstances and the relevant principles in relation to the request are set out in written submissions filed with the Court by the parties to which I now turn.

Submissions

The applicant filed submissions on 30 May 2014 which were:
“THE ISSUE ON THIS APPLICATION
1.The Applicant seeks an extension of time to file the application in matter (P)MLG557/2014 (“Application”) under section 370 of the Fair…

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: [2014] FCCA 1490
Decision Date: 11 July 2014

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