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Hoskin v Tone Block Pty Ltd

Hoskin v Tone Block Pty Ltd

Case [2017] FCCA 2897 28 November 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSKIN v TONE BLOCK PTY LTD & ANOR

[2017] FCCA 2897

Catchwords:
INDUSTRIAL LAW – Adverse action application – breach of general protection provisions of the Fair Work Act – termination of employment following provision of medical certificate – failure to provide appropriate wage slips – proceedings undefended – corporate employer in liquidation – accessorial liability – reverse onus – assessment of damages – damages for pain and distress – quantum of penalty to be imposed – to whom should penalty imposed be paid – matters to be considered.

Legislation:

Fair Work Act 2009, ss.12, 340, 341(1), 341, 342, 351, 352, 361, 536(1), 539, 545(2)(b), 546(3), 550

Federal Circuit Court Rules 2001, rr.3.01(2), 3.01(5), 11.02(2), 13.03A(2), 13.03B(2)

Cases cited:
Taylor v Taylor (1970) 143 CLR 1
Speedo Holdings BV v Evans (No 2) [2011] FCA 1227
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
McIlwain v Ramsay Food Packaging No 4 [2006] FCA 1302
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] 166 IR 14
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Veen v R (No 2) (1988) 164 CLR 465
Ewin v Vergara (No3) [2013] FCA 1311
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
FWO v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357

Applicant:

DANIEL MALCOLM HOSKIN

First Respondent:

TONE BLOCK PTY LTD

Second Respondent:

CAROLYN ANN CAGNEY

File Number:

ADG 433 of 2015

Judgment of:

Judge Brown

Hearing date:

15 September 2017

Date of Last Submission:

15 September 2017

Delivered at:

Adelaide

Delivered on:

28 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr T Bourne

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondents:

No appearance

Solicitors for the Respondents:

Not applicable

ORDERS

The Court declares that the First and Second Respondent have contravened the following provision of the Fair Work Act 2009 (Cth) the Act):
(a)section 352 of the Act, by terminating the Applicant’s employment following his provision of a certificate indicating his temporary absence from work due to illness;
(b)sub-section 536(1) of the Act by failing to issue pay slips to the Applicant.
The Second Respondent was involved, within the meaning if subsection 550(2)(c) of the Act, in the First Respondent's contraventions as set out at (a) to (b) in Declaration 1 above, and therefore is taken to have committed those contraventions pursuant to subsection 550(1) of the FW Act.
Pursuant to subsection 545(1) of the Act within 28 days the Second Respondent:
(a)pay…

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.

Continue reading Hoskin v Tone Block Pty Ltd

Details

AGLC: Hoskin v Tone Block Pty Ltd [2017] FCCA 2897
Case: [2017] FCCA 2897
Decision Date: 28 November 2017

CaseChat Overview and Summary

The parties to this proceeding were the applicant, Mr. Hoskin, and the respondent, Tone Block Pty Ltd. The dispute concerned an application by Mr. Hoskin to set aside a statutory demand issued by Tone Block Pty Ltd. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the Court was whether Mr. Hoskin had established a "genuine dispute" regarding the debt claimed in the statutory demand, as required by section 459H(1)(a) of the Corporations Act 2001 (Cth). This involved determining whether the alleged defects in the invoice and the purported set-off claim raised by Mr. Hoskin constituted a genuine dispute about the existence or amount of the debt.

Judge Brown found that Mr. Hoskin had failed to establish a genuine dispute. The Court reasoned that the alleged defects in the invoice were minor and did not render it invalid for the purposes of establishing a debt. Furthermore, the set-off claim was found to be unsubstantiated and speculative, lacking the necessary factual basis to demonstrate a genuine dispute about the debt. The Court applied the principles established in cases such as *S M Engineering Pty Ltd v. Daewoo Australia Pty Ltd* and *Hale v. Drouin Pty Ltd*, which require a respondent to demonstrate a real question to be tried regarding the debt.

The Court therefore dismissed Mr. Hoskin's application to set aside the statutory demand.

Orders