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Jovanovic v Australian Capital Territory as Represented BY the Health Directorate

Jovanovic v Australian Capital Territory as Represented BY the Health Directorate

Case [2020] FCCA 3355 14 December 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

JOVANOVIC v AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE

[2020] FCCA 3355

Catchwords:
INDUSTRIAL LAW – Where the Applicant was employed as a night shift worker – the Applicant contended that the Respondent (and or management of the Canberra Hospital and others) were liable for misfeasance and “breach of public office” – misfeasance claim unsustainable and dismissed – claim of non-payment under various sections of the Enterprise Agreement and breaches of the Fair Work Act 2009 (Cth) – interpretation of the Enterprise Agreement – Applicant found to have misinterpreted the Enterprise Agreement – Applicant found to have been paid all of his entitlements under the Enterprise Agreement – Application dismissed – no order as to costs.

Legislation:

Fair Work Act 2009 (Cth), ss.16, 20, 90, 99, 570

Cases cited:

AMCOR Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Cahill v Construction, Forestry, Mining and Energy Union (No.2) (2008) 170 FCR 357
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Coshott v Prentice (2014) 221 FCR 450
Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No.3) (2012) 285 ALR 281

Kucks v CSR Ltd (1996) 66 IR 182

Leerdam v Noori (2009) 255 ALR 553

Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453; 160 ALR 184

Northern Territory of Australia v Mengel (1995) 185 CLR 307

Obeid v Ipp (2016) 338 ALR 234

Spencer v The Commonwealth (2010) 241 CLR 118

Three Rivers District Council v Bank of England [No.3] [2003] 2 AC 1

Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165

Transport Workers Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54

M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Co., 2017)

Applicant:

MILENKO JOVANOVIC

Respondent:

AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE

File Number:

CAG 38 of 2018

Judgment of:

Judge W. J. Neville

Hearing date:

13 March 2020

Date of Last Submission:

8 September 2020

Delivered at:

Canberra

Delivered on:

14 December 2020

REPRESENTATION

Counsel for the Applicant:	Self-represented
Counsel for the Respondent:	Ms P Bindon

Solicitors for the Respondent:

Government Solicitor for the Australian Capital Territory

ORDERS

The Applicant’s Further Further Amended Application and Statement of Claim filed 27 March 2020 be dismissed.
There be no Orders as to costs.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 38 of 2018

MILENKO JOVANOVIC

Applicant

And

AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE HEALTH DIRECTORATE

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant worked as a Wardsman (night shift worker) at the Canberra Hospital. He did so from November 2001; he has recently retired.
The Applicant seeks that the Court interpret, and apply in his favour, specific sections of the ACT Public Sector Support Services Enterprise Agreement…

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

AGLC: Jovanovic v Australian Capital Territory as Represented BY the Health Directorate [2020] FCCA 3355
Case: [2020] FCCA 3355
Decision Date: 14 December 2020

CaseChat Overview and Summary

The applicant, Mr. Jovanovic, brought proceedings against the Australian Capital Territory, represented by the Health Directorate, alleging misfeasance and breach of public office. He also contended that he had not been paid his full entitlements under the relevant Enterprise Agreement and had suffered breaches of the *Fair Work Act 2009* (Cth). The matter was heard by Judge W. J. Neville in the ACT Civil and Administrative Tribunal.

The primary legal issues before the Tribunal were whether the respondent had committed misfeasance or breach of public office, and whether the applicant had been correctly remunerated according to the terms of the Enterprise Agreement and the *Fair Work Act 2009* (Cth). The Tribunal was required to interpret the provisions of the Enterprise Agreement to determine the applicant's entitlements.

Judge Neville found that the applicant's claim for misfeasance and breach of public office was unsustainable and dismissed it. Upon interpreting the Enterprise Agreement, the Tribunal concluded that the applicant had misinterpreted its terms and that he had, in fact, been paid all entitlements due to him under the agreement. Consequently, the application was dismissed. No order was made as to costs.

Orders