FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JONES v GROOVY FREIGHTERS PTY LTD | [2010] FMCA 673 |
| INDUSTRIAL LAW – Termination of employment – general protection provisions – first small claim proceeding under the new legislation to proceed to full hearing – applicant represented by an industrial advocate. |
| Fair Work Act 2009 (Cth) Fair Work (Registered Organisations) Act (2009) Federal Magistrates Act (1999) |
| Browne v Dunn (1894) 6 R 67 (HL) Carr v Blade Repairs Australia (No.2) [2010] FCA 688 Jones v Dunkel (1959) 101 CLR 298 Maher v Mulgowie Fresh Proprietary Limited (2010) FCA 439 |
| Applicant: | TERENCE JONES |
| Respondent: | GROOVY FREIGHTERS PTY LTD |
| File Number: | BRG 1011 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 20 July 2010 |
| Date of Last Submission: | 20 July 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 3 August 2010 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Advocacy & Industrial Advisory Services |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Quinn & Scattini |
ORDERS
That the application filed 30 December 2009 be dismissed.
That any costs Application is to be made before 1 September 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1011 of 2009
| TERENCE JONES |
Applicant
And
| GROOVY FREIGHTERS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The applicant seeks relief for dismissal and contravention of a general protection on account of his temporary absence from work because of a back injury. The sum claimed in the application was $12,000.00, although as will be discussed later a higher figure was sought. At the outset I identified the matter as one which more properly was a small claim under the Fair Work Act (FW Act) because of its quantum; neither party demurred from that view and the application proceeded on that basis.
Legal Representation
This application appears to be the first small claim proceeding under the new legislation to proceed to full hearing. A number of issues arose along the way, particularly because the applicant was represented by an industrial advocate. Accordingly, it is appropriate that I set out in greater detail than might otherwise be expected some of the regulatory matters relevant to the application.
At the outset the respondents took issue with the appearance of a Mr Steinitz, an industrial advocate for the applicant. The respondent itself was a corporation represented by a solicitor, to which there was also objection.
Dealing first with that issue, Federal Magistrates Court rule 9.04 provides that:
“Except by or under an Act or regulations made under an Act with the leave of the court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.”
In this instance there was no commencement of the proceeding, but there was clearly a carrying on of a proceeding from the perspective of the respondent. It follows that prima facie it must appear by a lawyer. Ordinarily that would not cause any difficulty. However, in the context of an application of this kind an issue arises because the application falls within the small claims provisions…
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- Case
- [2010] FMCA 673
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the freight company had breached the contract by failing to deliver the goods on time and if such a breach caused the claimed damages. Jones argued that the delay in delivery had a direct causal link to the financial losses suffered, while Groovy Freighters contended that the delay was due to unforeseeable circumstances beyond their control and that there was no causal link to the claimed damages.
The court examined the terms of the contract between the parties, the evidence presented regarding the delivery process, and the causation of the damages. The court concluded that while there had been a delay in the delivery, the delay was not a direct result of any breach by Groovy Freighters. Furthermore, the court found that the evidence did not sufficiently establish a causal relationship between the delay and the claimed damages. As a result, the court dismissed the plaintiff's application and ordered that any application for costs must be made before 1 September 2010.
Orders
Orders of the court
1.
That the application filed 30 December 2009 be dismissed.
2.
That any costs Application is to be made before 1 September 2010.
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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