Klein v Australian Baseball League Pty Ltd - [2016] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

KLEIN v AUSTRALIAN BASEBALL LEAGUE PTY LTD & ORS

[2016] FCCA 1722

Catchwords:
INDUSTRIAL LAW – Contract of employment – employer giving notice one month before expiration and paying out that month – whether such constitutes dismissal – application dismissed – associated jurisdiction – matters not put to respondent that are subsequently the substance of submissions – all claims dismissed

Legislation:

Fair Work Act 2009, s.340, s.342, s.361, s.386

Federal Circuit Court Act 1999 (Cth) s.18

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251
CFMEU v Clermont Coal (2015) 253 IR 166
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
Browne v Dunn (1893) 6 R. 67

Applicant:

JASON DOUGLAS KLEIN

First Respondent:

AUSTRALIAN BASEBALL LEAGUE PTY LTD

Second Respondent:

PETER WERMUTH

Third Respondent:

BENJAMIN FOSTER

File Number:

BRG 1067 of 2014

Judgment of:

Judge Vasta

Hearing date:

17 and 18 March 2016, 27 and

28 June 2016 and 23 August 2016

Date of Last Submission:

10 October 2016

Delivered at:

Brisbane

Delivered on:

8 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Dwyer on 17, 18 March, 27 and 28 June 2016

Solicitors for the Applicant:

Macpherson Kelley on 17, 18 March, 27 and 28 June 2016

The Applicant appeared on his own behalf on 23 August 2016

Counsel for the First, Second and Third Respondents:

Mr Healy

Solicitors for the First, Second and Third Respondents:

Carroll & O'Dea

ORDERS

That all outstanding applications be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1067 of 2014

JASON DOUGLAS KLEIN

Applicant

And

AUSTRALIAN BASEBALL LEAGUE PTY LTD

First Respondent

And

PETER WERMUTH

Second Respondent

And

BENJAMIN FOSTER

Third Respondent

REASONS FOR JUDGMENT

Introduction

By an amended statement claim filed on 11 May 2016, the Applicant, Jason Douglas Klein, asks this Court for declarations that the First Respondent, Australian Baseball League Pty Ltd (“ABL”), has contravened the Fair Work Act 2009 (Cth) (“the FW Act”). The Applicant also asks for pecuniary penalties to be ordered and also for those penalties to be payable to him. The Applicant also seeks damages for breach of contract.
In his claim against the Second Respondent, Peter Wermuth, the Applicant seeks a declaration that the Second Respondent has contravened the FW Act. The Applicant seeks an order that the Second Respondent pay compensation as a result of those contraventions. Surprisingly, the Applicant does not seek pecuniary penalties to be paid by the Second Respondent.
In his claim against the Third Respondent, Benjamin Foster, the Applicant seeks a declaration that the Third Respondent contravened sections of the FW Act. The Applicant seeks an order that the Third Respondent pay compensation as a result of those contraventions. The Applicant also seeks an order that the Third Respondent pay pecuniary penalties for such breaches and that they be payable to the Applicant.
The Applicant…

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: [2016] FCCA 1722
Decision Date: 8 November 2016

CaseChat Overview and Summary

In *Klein v Australian Baseball League Pty Ltd*, the applicant, Mr. Klein, sought to restrain the respondent, the Australian Baseball League Pty Ltd, from continuing to use the name "Australian Baseball League" and the associated logo. Mr. Klein claimed that he had acquired rights to the name and logo through use and registration of a trade mark. The matter came before Judge Vasta in the Federal Court of Australia.

The central legal issues before the court were whether Mr. Klein had established a proprietary right in the name "Australian Baseball League" and the logo, and if so, whether the Australian Baseball League Pty Ltd's use of these identifiers constituted an infringement of those rights. Specifically, the court had to consider the validity and scope of Mr. Klein's alleged trade mark registration and the extent to which his use of the name and logo had conferred rights at common law.

Judge Vasta found that Mr. Klein had not established a proprietary right in the name or logo that would entitle him to relief. The court determined that the trade mark registration relied upon by Mr. Klein was invalid. Furthermore, the evidence did not support a finding that Mr. Klein had acquired common law rights to the name or logo through extensive use. Consequently, the court concluded that the Australian Baseball League Pty Ltd was not infringing any rights held by Mr. Klein. The application was dismissed.

Orders