Li v Zheng Min-Seng - [2010] FMCA 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v ZHENG MIN-SENG & ORS

[2010] FMCA 344

INDUSTRIAL LAW – Small claims procedure – claim for underpayment – leave granted for lawyer to appear at directions hearing.

Fair Work Act 2009 (Cth), s.548

Hughes & Mainrange Corporation Pty Ltd [2009] FMCA 1025

Applicant:

YU FANG LI

Respondents:

ZHENG MIN-SENG & FU RUI ZHI T/AS CAMY SHANGHAI DUMPLING & NOODLE RESTAURANT

File Number:

MLG 562 of 2010

Judgment of:

O’Sullivan FM

Hearing date:

4 May 2010

Date of Last Submission:

4 May 2010

Delivered at:

Melbourne

Delivered on:

4 May 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Daly

Solicitors for the Respondents:

Lewenberg & Lewenberg

ORDERS

The Respondents have leave to be represented by a lawyer for the purpose of today’s directions hearing only.
The Respondents file and serve any interlocutory application relating to jurisdiction prior to 11 May 2010.
The Applicant file and serve any amended application, affidavit material and any documents upon which she intends to rely at hearing on or before 4.00 pm on 18 May 2010.
The Respondents file and serve any response, affidavit material and any documents on which they intend to rely at hearing on or before 8 June 2010.
The Applicant have until 22 June 2010 to file any further affidavit material in reply.
The proceeding be listed for hearing in the small claims list of the Fair Work Division of the Federal Magistrates Court at Melbourne at 10:00am on 13 July 2010.
There be general liberty to apply for both parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 562 of 2010

YU FANG LI

Applicant

And

ZHENG MIN-SENG & FU RUI ZHI T/AS CAMY SHANGHAI DUMPLING AND NOODLE RESTAURANT

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

Before the Court this morning is an application by Yu Fang Li (“the Applicant”) filed on 20 April 2010. The respondents to that application are Zheng Min-Seng and Fu Rui Zhi trading as the Camy Shanghai Dumpling and Noodle Restaurant (“the Respondents”).
The application was filed in the Fair Work Division of the Court and the applicant has elected that it be dealt with pursuant to the small claims procedure and the provisions of section 548 of the Fair Work Act 2009 (“the FW Act”).

Application

In the application of 20 April 2010 the orders sought were:
“Final orders sought
1.Wages – overtime/weekend rates.
2.Public holidays.
3.Annual Leave
Total amount sought $22,823.92 owing.
Grounds of application
1.Breaches of the Accommodation, Cafes & Restaurants Industry Sector – Minimum Wage Order Victoria 1997.
2.Breaches of the Liquor and Accommodation Industry Restaurants Victoria Award 1998.”
The application was accompanied by the prescribed small claims form. It annexes to it calculations, which detail the applicant’s allegations that from the time that she commenced employment with the respondents, in October 2003, to the date of her termination she was underpaid, in comparison to the applicable industrial instruments.
The applicant has appeared in…

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 344
Decision Date: 4 May 2010

CaseChat Overview and Summary

The case of Li v Zheng Min-Seng was heard in the Fair Work Division of the Federal Magistrates Court in Melbourne. The Applicant, Li, brought the matter against the Respondent, Zheng Min-Seng, concerning a dispute regarding employment law. The central issue was whether Zheng Min-Seng was entitled to certain relief under the Fair Work Act 2009.

The court had to determine the appropriate legal framework to apply to the dispute and whether it had jurisdiction over the matter. Additionally, the court needed to establish the procedural steps required to resolve the dispute effectively, including the timeline for filing and serving relevant documents. The court also had to consider whether the Respondents should be permitted to be represented by a lawyer for the purposes of the directions hearing.

In its decision, the court granted the Respondents leave to be represented by a lawyer for the directions hearing only. It set out a strict timeline for filing and serving interlocutory applications, amended applications, affidavit material, and documents intended to be relied upon at the hearing. The court emphasised the importance of adhering to these deadlines to ensure the efficient progression of the case. The matter was scheduled for hearing in the small claims list of the Fair Work Division of the Federal Magistrates Court at Melbourne on 13 July 2010. The court also provided general liberty to apply for both parties, allowing them to seek further orders as necessary during the course of the proceedings.

Orders

Orders of the court

The Respondents have leave to be represented by a lawyer for the purpose of today’s directions hearing only.

The Respondents file and serve any interlocutory application relating to jurisdiction prior to 11 May 2010.

The Applicant file and serve any amended application, affidavit material and any documents upon which she intends to rely at hearing on or before 4.00 pm on 18 May 2010.

The Respondents file and serve any response, affidavit material and any documents on which they intend to rely at hearing on or before 8 June 2010.

The Applicant have until 22 June 2010 to file any further affidavit material in reply.

The proceeding be listed for hearing in the small claims list of the Fair Work Division of the Federal Magistrates Court at Melbourne at 10:00am on 13 July 2010.

There be general liberty to apply for both parties.

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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