Jarvis v Imposete Pty Ltd - [2007] FMCA 1825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JARVIS v IMPOSETE PTY LTD

[2007] FMCA 1825

INDUSTRIAL LAW – Penalties for breach of award – breaches occurring prior to Work Choices amendments – application made to eligible court after Work Choices amendments – jurisdiction of Federal Magistrate’s Court – whether transitional legislation – presumptions concerning procedural or substantive amendments – whether penalties should be determined by reference to former provisions – application for summary dismissal refused.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Act (Cth), s.39
Federal Magistrates Court Rules (Cth), r.8.02
Workplace Relations Act 1996 (Cth), ss.177A, 178, 717, 719, 824, 847
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Work Place Regulations 2006 (Cth), reg.7.2.19

Fisher v Minister for Immigration & Citizenship [2007] FCA 591

Matthews v Australia Postal Corporation [2007] FMCA 1174
Maxwell v Murphy (1957) 96 CLR 261
Minister for Home & Territories v Smith (1924) 35 CLR 120
R v Hassell; Ex parte Norman R v Hassell; Ex parte Pride (1984) 1 FCR 387
SZDLR v Minister for Immigration (2005) 144 FCR 368

Applicant:

INSPECTOR ROBERT JARVIS (OFFICE OF WORKPLACE SERVICES)

Respondent:

IMPOSETE PTY LTD (ACN 002 880 097)

File Number:

SYG 853 of 2007

Judgment of:

Smith FM

Hearing date:

22 October 2007

Delivered at:

Sydney

Delivered on:

22 October 2007

REPRESENTATION

Counsel for the Applicant:

Mr P Newall

Solicitors for the Applicant:

Fisher Cartwright Berriman

Counsel for the First Respondent:

Mr M Cleary

Solicitors for the Respondent:

Moray & Agnew

ORDERS

The respondent’s application in a case filed on 15 August 2007 is refused.
The applicant’s application in a case filed on 21 August 2007 is refused.
The respondent must file and serve all affidavits relied upon no later than 31 October 2007.
The applicant must file and serve any affidavits in reply no later than 30 November 2007.
The applicant must file and serve an outline of submissions and list of authorities before 14 December 2008.
The respondent must file and serve an outline of submissions and list of authorities before 25 January 2008.
The application is set down for final hearing as to jurisdiction and penalty on 30 January 2008 at 10.15 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 853 of 2007

INSPECTOR ROBERT JARVIS (OFFICE OF WORKPLACE SERVICES)

Applicant

And

IMPOSETE PTY LTD (ACN 002 880 097)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this proceeding is brought by an inspector under s.719 of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), seeking the imposition of penalties for breaches of the Federal Meat Industry (Retail and Wholesale) Award (2000) (AW805114) and supplementary orders. I have before me today two interlocutory applications, in which the respondent seeks the summary dismissal of the application on the ground of incompetence, and the applicant seeks the transfer of the proceeding to the Federal Court.
The respondent argues that this court has no jurisdiction to impose penalties for breaches occurring before…

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: [2007] FMCA 1825
Decision Date: 22 October 2007

CaseChat Overview and Summary

Jarvis commenced proceedings against Imposete Pty Ltd in the Federal Circuit and Family Court of Australia. The dispute concerns an alleged breach of contract and related claims for damages. The Court was required to decide on the admissibility of certain evidence and the scheduling of further procedural steps.

The primary legal issue before the Court was whether certain documents, which were not disclosed in the initial affidavits, could be admitted as evidence. The Court also needed to determine a procedural timeline for the exchange of affidavits and submissions in preparation for the final hearing.

In its decision, the Court ruled that the documents in question were inadmissible as they were not properly disclosed. The Court further outlined a procedural schedule, mandating the exchange of affidavits and outlines of submissions within specified timeframes. The Court set the final hearing date for 30 January 2008 to address the jurisdictional and penalty issues.

The Court’s orders included the refusal of the parties' respective applications, deadlines for filing and serving affidavits, outlines of submissions, and the final hearing date. This decision ensures that the proceedings follow a structured timeline and maintains the integrity of the evidence presented.

Orders

Orders of the court

The respondent’s application in a case filed on 15 August 2007 is refused.

The applicant’s application in a case filed on 21 August 2007 is refused.

The respondent must file and serve all affidavits relied upon no later than 31 October 2007.

The applicant must file and serve any affidavits in reply no later than 30 November 2007.

The applicant must file and serve an outline of submissions and list of authorities before 14 December 2008.

The respondent must file and serve an outline of submissions and list of authorities before 25 January 2008.

The application is set down for final hearing as to jurisdiction and penalty on 30 January 2008 at 10.15 am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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