Liongson v Olims Canberra Hotel

FEDERAL COURT OF AUSTRALIA

Liongson v Olims Canberra Hotel [2010] FCA 248

Citation:		Liongson v Olims Canberra Hotel [2010] FCA 248
Parties:		CARL LIONGSON v OLIMS CANBERRA HOTEL
Appeal:		Liongson v Olims Canberra Hotel [2009] FMCA 572
File number:		ACD 30 of 2009
Judge:		STONE J
Date of judgment:		15 March 2010
Legislation:		Federal Court Rules O52 r38
Place:	Canberra
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	12
The appellant appeared in person
Counsel for the Respondent:	S O'Brien

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 30 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: CARL LIONGSON
Appellant

AND: OLIMS CANBERRA HOTEL
Respondent

JUDGE:	STONE J
DATE OF ORDER:	15 MARCH 2010
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The appellant’s application to vacate the hearing of the appeal be dismissed.

2.The respondent’s application in its notice of motion filed 15 March 2010 be allowed.

3.The appeal be dismissed for want of prosecution.

4.The appellant pay the respondent’s costs of 15 March 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 30 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: CARL LIONGSON
Appellant

AND: OLIMS CANBERRA HOTEL
Respondent

JUDGE:	STONE J
DATE:	15 MARCH 2010
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. On 10 June 2009 the Federal Magistrates Court dismissed Mr Liongson’s application seeking relief in relation to his claim that his employment with the respondent, Olims Canberra Hotel, was unlawfully terminated contrary to the Workplace Relations Act 1996 (Cth): Liongson v Olims Canberra Hotel [2009] FMCA 572. The Federal Magistrate concluded, on the basis of factual findings that had been made, that:

   … [T]here is no jurisdiction for this Court to determine the application by Mr Liongson and all other applications that are ancillary to or dependent on it.  All applications by Mr Liongson currently before the Court should be dismissed with costs.

2. As the Federal Magistrate’s decision was interlocutory Mr Liongson could only appeal that decision with leave.  His application for leave came before Finn J on 11 November 2009: Liongson v Olims Canberra Hotel [2009] FCA 1291. His Honour held that the Federal Magistrate erred in concluding that he had no jurisdiction to determine Mr Liongson’s application and for that reason granted Mr Liongson leave to appeal. Finn J’s reasoning is relevant to the present application. His Honour referred to the Federal Magistrate’s finding that, on the evidence before him, Mr Liongson had not been dismissed, constructively or otherwise and said, at [2]-[3] of his reasons:

   Whether or not the learned Federal Magistrate was correct in the view he took on the factual question of whether Mr Liongson had been dismissed by his employer, the Federal Magistrate clearly erred in the…