Herbert v Star Aviation Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Herbert v Star Aviation Services Pty Ltd [2019] FCA 239

File number: NSD 326 of 2018
Judge: FLICK J
Date of judgment: 1 March 2019
Catchwords:

INDUSTRIAL LAW – discrimination – whether Respondents discriminated against the Applicant on the basis of his family or carer’s responsibilities – whether the Applicant was an employee or prospective employee – whether the Respondents took adverse action against the Applicant – whether adverse action was taken because of family or carer’s responsibilities – reverse onus of proof

INDUSTRIAL LAW – costs – whether proceedings instituted vexatiously or without reasonable cause – whether a party’s unreasonable act or omission caused the other party to incur costs – whether failure to accept offer of compromise constituted unreasonable act

Legislation:

Conciliation and Arbitration Act 1904 (Cth) s 5

Fair Work Act2009 (Cth) ss 346, 351, 360, 361, 386, 570

Racial Discrimination Act 1975 (Cth)

Federal Court Rules2011 (Cth) rr 9.08, 26.01

Cases cited:

Board of BendigoRegional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500

Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222, (2017) 256 FCR 306

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, (2015) 230 FCR 298

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Kennewell v MG & CG Atkins [2015] FCA 716

McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086, (2007) 164 FCR 591

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139

Shizas v Commissioner of Police [2017] FCA 61, (2017) 268 IR 71

Date of hearing: 3 and 4 October 2018
Date of last submissions: 12 October 2018
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Ms L Saunders
Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS

NSD 326 of 2018
BETWEEN:

STEPHEN NOEL HERBERT

Applicant
AND:

STAR AVIATION SERVICES PTY LTD (ACN 160 093 630) AS TRUSTEE FOR THE STAR AVIATION TRUST

First Respondent

PETER GEORGIOU

Second Respondent

PETER CORNELL

Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

1 MARCH 2019

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The Applicant is to pay the costs of the Respondents as from 8 August 2018, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

  1. The Applicant in the present proceeding, Mr Stephen Herbert, filed an Originating Application in this Court on 6 March 2018.

  2. The three Respondents to the proceeding are Star Aviation Services Pty Ltd (“Star Aviation”); Mr Peter Georgiou, the Managing Director of Star Aviation; and Mr Peter Cornell, a Safety and Training Consultant retained as a contractor by Star Aviation.

  3. In the Originating Application, Mr Herbert alleges…

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Details
Case
[2019] FCA 239
Decision Date

CaseChat Overview and Summary

The matter of Herbert v Star Aviation Services Pty Ltd was heard in the Federal Circuit Court of Australia. The applicant, Mr Herbert, alleged that he had been discriminated against by the respondents on the basis of his family or carer’s responsibilities, and that he had been an employee or prospective employee of the respondents when the alleged discrimination occurred. The respondents denied these claims and argued that the proceeding should be dismissed on the basis that it was vexatious and without reasonable cause. Additionally, the respondents argued that the applicant had incurred costs due to his unreasonable act or omission, specifically his rejection of their offer of compromise.

The court was required to determine whether the applicant had established that he was an employee or prospective employee of the respondents, and whether the respondents had taken adverse action against him because of his family or carer’s responsibilities. The court was also required to determine whether the proceeding had been instituted vexatiously or without reasonable cause, and whether the applicant’s rejection of the offer of compromise constituted an unreasonable act or omission.

The court found that the applicant had not established that he was an employee of the respondents at any point in time, and that his claims under the Fair Work Act were therefore without merit. The court also found that the applicant had not established that the withdrawal of the offer of employment was for any proscribed reason. The court held that the proceeding should be dismissed, and that the applicant should pay the costs of the respondents as from 8 August 2018, being the date on which he rejected the offer of compromise.

The court’s final orders were that the proceeding be dismissed, and that the applicant pay the costs of the respondents as from 8 August 2018, as agreed or assessed. The court held that it was unnecessary to resolve the interlocutory applications filed by the parties, as the applicant’s claims had been exposed to be without merit during the course of the hearing.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The Applicant is to pay the costs of the Respondents as from 8 August 2018, as agreed or assessed.

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

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Decision

Reasons for decision

It is concluded that Mr Herbert should pay the costs after 8 August 2018, being the date on which he rejected the Offer of Compromise. CONCLUSIONS The conclusion that Mr Herbert’s claims should be dismissed makes it unnecessary to resolve the Interlocutory Application filed by the Respondents. It is also unnecessary to resolve the Interlocutory Application filed by Mr Herbert on 28 September 2018 seeking a Summons for Messrs Georgiou and Cornell to attend and give evidence. Both Messrs Georgiou and Cornell gave evidence at the hearing and were cross-examined by Mr Herbert. Irrespective of whatever other difficulties Mr Herbert’s claim may have encountered, his primary argument that he was an employee as from 17 November 2017 fails at the outset. No relationship of employment was created at the meeting on that date. Mr Herbert has not established that he was an employee of Star Aviation at any point of time. Although no reliance was placed by Mr Herbert upon his status as a “prospective employee” for the purposes of s 351(1) of the Fair Work Act, Counsel for Star Aviation quite properly accepted that he would fall within that phrase. But, even so, Mr Herbert has not established that the withdrawal of the offer of employment was for any proscribed reason. There is no basis for any relief under the Racial Discrimination Act. Any argument founded upon the Racial Discrimination Act falls by the wayside given Mr Herbert’s express disclaimer of any argument that action had been taken against him by reason of his “race”. The claims advanced by Mr Herbert, it is respectfully concluded, have been exposed during the course of the hearing to be without merit. The proceeding should be dismissed. Mr Herbert should be ordered to pay the costs of the Respondents as from 8 August 2018.THE ORDER OF THE COURT IS:1.The proceeding is dismissed.2.The Applicant is to pay the costs of the Respondents as from 8 August 2018, as agreed or assessed.

Ratio Decidendi

Legal Principle Established

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