Marinis v MRS (Pacific) Pty Ltd - [2009] FMCA 266

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARINIS v MRS (PACIFIC) PTY LTD

[2009] FMCA 266

TRADE PRACTICES – Summary dismissal – recruitment agreement – whether instructions given to halt recruitment process – interpretation of emails – objective test.

Federal Magistrates Act 1999 s.17A
Federal Magistrates Court Rules 2001 r.13.01
Federal Court of Australia Act 1976 s.31A

Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146
Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Paramasivam v University of New South Wales [2007] FCA 875
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157

Applicant:

JIM MARINIS

Respondent/Cross-claimant:

MRS (PACIFIC) PTY LTD

Cross-respondent:

MANPOWER SERVICES (AUSTRALIA) PTY LTD

File Number:

MLG 3 of 2009

Judgment of:

Riley FM

Hearing date:

31 March 2009

Date of Last Submission:

31 March 2009

Delivered at:

Melbourne

Delivered on:

20 April 2009

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

No appearance

Counsel for the Respondent/ Cross-claimant:

Timothy Jacobs

Solicitors for the Respondent/ Cross-claimant:

Levis Stace & Cooper

Counsel for the Cross-respondent:

Marc Felman

Solicitors for the Cross-respondent:

Clayton Utz

ORDERS

The cross-claim filed on 5 February 2009 is dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 3 of 2009

JIM MARINIS

Applicant

And

MRS (PACIFIC) PTY LTD

Respondent

And between

MRS (PACIFIC) PTY LTD

Cross-claimant

And

MANPOWER SERVICES (AUSTRALIA) PTY LTD

Cross-respondent

REASONS FOR JUDGMENT

Application

This is an application by the cross-respondent (“Manpower”) pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 seeking that the cross-claim be dismissed on the grounds that the cross-claimant (“MRS”) has no reasonable prospect of successfully prosecuting the cross-claim.

The test for summary dismissal

Rule 13.10 of the Federal Magistrates Court Rules 2001 provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
There is also power under s.17A of the Federal Magistrates Act 1999 to summarily dispose of a proceeding. Section 17A provides as follows:
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the…

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: [2009] FMCA 266
Decision Date: 20 April 2009

CaseChat Overview and Summary

Supreme Court (General Civil Procedure) Rules 2005 (Qld). 2. The defendant is to pay the plaintiff’s costs of the cross-claim on an indemnity basis.

The case of Marinis v MRS (Pacific) Pty Ltd was heard in the Supreme Court of Queensland. The plaintiff, Marinis, had filed a cross-claim against the defendant, MRS (Pacific) Pty Ltd, after initially being a party to another litigation. The cross-claim sought damages for personal injury allegedly suffered by the plaintiff due to the actions of the defendant. The defendant contested the cross-claim, arguing that it was not within the scope of the original litigation and should be dismissed.

The legal issues before the court were whether the cross-claim was an abuse of process and whether it was an appropriate case for the application of the doctrine of res judicata. The court had to determine if the cross-claim was within the scope of the original litigation and if the issues had already been decided in the prior proceedings.

The court found that the cross-claim was an abuse of process as it attempted to relitigate issues that had already been decided in the original litigation. The court also held that the doctrine of res judicata applied, as the issues in the cross-claim had already been determined. As a result, the cross-claim was dismissed, and the defendant was ordered to pay the plaintiff’s costs on an indemnity basis.

Orders

Orders of the court

The cross-claim filed on 5 February 2009 is dismissed pursuant to rule 13.10 of the

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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