Homes v Australian Carers Pty Ltd - [2023] FedCFamC2G 711

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711

File number(s): ADG 131 of 2022

Judgment of: JUDGE LUCEV

Date of judgment: 4 August 2023

Catchwords:
FAIR WORK – alleged contravention of general protections – termnation of employment – alleged underpayments of allowances and overtime

PRACTICE AND PROCEDURE – Notice to produce – requirement for a notice concerning a specified document

PRACTICE AND PROCEDURE – Discovery – requirements for declaration concerning discovery – discovery exception not the rule

PRACTICE AND PROCEDURE – Subpoena – relevance of documents sought

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 176, 190

Federal Circuit Court of Australia Act 1999 (Cth) s45

Federal Magistrates Act 1999 (Cth) s 45

Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 14.10, 16.16, 22.06

Federal Circuit Court Rules 2001 (Cth) r 14.02

Federal Court Rules 2011 (Cth) r 30.28

Migration Regulations 1994 (Cth) reg 5.19(2)

Cases cited:
Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314

Aon Risk Services v Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd and Woolworths [2015] FCA 1520

Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51

Australian Workers Union v Leighton Contractors Proprietary Limited (No 2) [2013] FCAFC 23; (2013) 232 FCR 428

Bonjour v Cachet Holdings Pty Ltd trading as Mulberry Tree Childcare (No. 3) [2023] FedCFamC2G 5

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340

Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171

Genovese v BGC Construction Pty Ltd [2006] FMCA 1507

Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116

Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268

Lowery v Insurance Australia Ltd [2015] NSWCA 303

Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 269 FLR 422; (2012) 226 IR 452; (2012) 64 AILR 101-754

Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091

Division: Division 2 General Federal Law

Number of paragraphs: 45

Date of last submission/s: 4 August 2023

Date of hearing: 4 August 2023

Place: Perth (by video-link to Adelaide)

Counsel for the Applicant: Mr R Sallis

Solicitor for the Applicant: RSA Law

Counsel for the Respondents: Mr S Richter

Solicitor for the Respondents: WBH Legal
ORDERS

ADG 131 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CHARMAINE HOMES

Applicant

AND:
AUSTRALIAN CARERS PTY LTD

First Respondent

REGINALD MALCOLM VITNELL

Second Respondent

order made by:

JUDGE LUCEV

DATE OF…

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: [2023] FedCFamC2G 711
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) presided over a case involving Charmaine Homes, the applicant, against Australian Carers Pty Ltd and Reginald Malcolm Vitnell, the respondents. The case revolves around allegations of contraventions of general protections, termination of employment, and underpayments of allowances and overtime. The applicant seeks various orders, including those under the Fair Work Act 2009 (Cth) for alleged adverse action, failure to provide a Fair Work Information Statement, underpayments of award entitlements, and pecuniary penalties.

The court addressed the legal issues surrounding the notice to produce and the request for discovery. The notice to produce was found to be defective, as it did not specifically mention the documents sought. The court also examined the relevance and fairness of granting discovery in this case, considering factors such as the timing of the request, the relevance of the documents, and the potential impact on the administration of justice.

The court concluded that granting discovery in this case would not be fair or expedient, as it would prolong the proceedings, potentially requiring the reopening of the applicant's case and further cross-examination. The court emphasized the importance of adhering to the rules and procedures governing discovery and noted that the applicant's solicitors seemed unaware of the relevant statutory provisions and case law. Consequently, the application for discovery was dismissed, and the applicant was ordered to pay the respondents' costs.

In summary, the court dismissed the applicant's request for discovery and ordered her to pay the respondents' costs, emphasizing the importance of adhering to procedural rules and considering the fairness and expediency of granting discovery in litigation.

Orders