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James v Planpac International Pty Ltd (No 2)

James v Planpac International Pty Ltd (No 2)

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAMES v PLANPAC INTERNATIONAL PTY LTD & ORS (No 2)

[2010] FMCA 845

INDUSTRIAL LAW – Penalty – breach of WRA provision regarding payment of accrued annual leave upon termination – whether directors were “persons involved” in the breach – matters relevant to penalty considered where breach was deliberate and ongoing – Anshun estoppel – where earlier proceedings in District Court brought by respondents to recover money owing by the applicant – where earlier judgment awarded unpaid annual leave entitlement following counter-claim for breach of contract – entitlement still unpaid at time of hearing – where company directors not party to earlier proceedings – whether claim for penalty under the WRA could and should have been brought in earlier proceedings.

Workplace Relations Act 1996 (Cth), ss.178, 235(2), 717, 718, 719, 728, 841(b)
Annual Holidays Act 1944 (NSW), s.4
Workplace Relations (Work Choices) Act 2005 (Cth)
Federal Magistrates Court Rules 2001

Planpac International Pty Ltd v James [2010] QDC (unreported)
NSW v Commonwealth (2006) 229 CLR 1
Mason v Citigroup Pty Ltd (2007) 169 IR 120
Citigroup Pty Ltd v Mason (2008) 171 FCR 96
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Henderson v Henderson [1843] 67 ER 313
Jeans v Bruce & Ors [2004] NSWSC 539
Bradford & Bingley Building Society v Seddon (1994) 4 All ER 217
Gibbs & McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52
Re AWB Ltd (No 10) [2009] VSC 566
Zavodnyik v Alex ConstructionsPty Ltd (2005) 67 NSWLR 457
Clout & Ors v Klein & Ors [2001] QSC 401
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332
Vehicle Builders Employees Federation of Australia v General Motors Holden Pty Ltd (1977) 18 ALR 654
CPSU v Telstra (2001) 108 IR 228
Notaras v Knight (2008) 181 IR 364
Johnson v Gore Wood & Co [2002] 2 AC 1
Bringinshaw v Briginshaw (1938) 60 CLR 336
Qantas Airways Limited v Gama (2008) 247 ALR 273
Ferguson v Wilson (1866) 2 Ch App 77
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35
CFMEU v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Stewart-Mahony v CFMEU (2008) 177 IR 61
Alfred v Wakelin (No 1) [2008] FCA 1455
Alfred v Wakelin (No 4) (2009) 180 IR 335
Temple v Powell (2008) 169 FCR 169
Rodenstock Australia Pty Ltd v Ley [2002] NSWSC 957
Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170
Yardley v Betts (1979) 22 SASR 108
National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481

Andrew G. Lang, “Is There a Ratio Decidendi?” (1974) 48 Australian Law Journal 146

Applicant:

BRUCE HUME JAMES

First Respondent:

PLANPAC INTERNATIONAL PTY LTD

Second Respondent:

DAMIEN JOHN FERGUSON

Third Respondent:

GEOFFREY JAMES PLANTE

File Number:

SYG 1524 of 2010

Judgment of:

Raphael FM

Hearing date:

12 October 2010

Date of Last Submission:

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: [2010] FMCA 845
Decision Date

CaseChat Overview and Summary

The case involves Bruce Hume James, who seeks to recover a penalty from Planpac International Pty Ltd and its directors, Damien John Ferguson and Geoffrey James Plante, under the Workplace Relations Act 1996 (Cth) for their failure to pay him his untaken accrued annual leave benefits upon termination of his employment. Mr James was an employee of Planpac from July 2003 to June 2006. The respondents did not dispute that Mr James was not paid his holiday leave entitlements. The central issues are the alleged accessorial liability of the second and third respondents and the applicability of Anshun estoppel. The respondents argue that the Court should dismiss the complaint on the grounds of Anshun estoppel, as Mr James had the opportunity to bring the claim in earlier proceedings in the Queensland District Court. They also submit that any penalties awarded should be in the low range. The Court rejects the respondents’ submissions and holds that Anshun estoppel does not apply in this case. The Court finds that the second and third respondents were persons involved in the contravention and are therefore liable for penalties. The Court considers various factors in determining the appropriate penalty, including the deliberate nature of the breach, the loss and damage sustained by Mr James, and the need for deterrence. The Court imposes a penalty of 250 penalty units ($27,500.00) on Planpac International Pty Ltd and 55 penalty units ($6,500.00) on each of the second and third respondents, to be paid to Mr James within 28 days.

**ORDERS**

First Respondent to pay a penalty of $27,500.00 pursuant to s.719(1) WRA for breach of s.235(2) WRA. Such penalty to be paid to the applicant within 28 days.

Second Respondent to pay a penalty of $6,500.00 pursuant to s.719(1) WRA for his accessorial liability under s.728 WRA for breach of s.235(2) WRA. Such penalty to be paid to the applicant within 28 days.

Third Respondent to pay a penalty of $6,500.00 pursuant to s.719(1) WRA for his accessorial liability under s.728 WRA for breach of s.235(2) WRA. Such penalty to be paid to the applicant within 28 days.

Orders