Maslen v Core Drilling Services Pty Ltd & Anor - [2013] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASLEN v CORE DRILLING SERVICES PTY LTD & ANOR

[2013] FCCA 460

Catchwords:
INDUSTRIAL LAW – General protections claim – termination – whether termination for prohibited reason.

INDUSTRIAL LAW – Whether non-payment of entitlements – whether award breach.

INDUSTRIAL LAW – Deductions by employer – whether employee paid in full.

INDUSTRIAL LAW – Contravention – whether second respondent “knowingly involved”.

Legislation:
AWU Gold (Mining and Processing) Award cl.15
Defence Reserve Service (Protection) Act 2001 (Cth), s.17
Fair Work Act 2009 (Cth), ss.12, 44, 117, 323, 326, 340, 341, 342, 352, 361, 550
Fair Work Regulations 2009 (Cth), reg.2.12
Mining Industry Award 2010 cll.3.1, 13.1, 17.1, 17.4, 19.2, 21.1
Trade Practices Act 1974 (Cth), s.75B

Cases cited:
Australian and New Zealand Banking Group Ltd v Finance Sector Union of Australia (2001) 111 IR 227; [2001] FCA 1785
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87
Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2011) 254 FLR 59; [2011] FMCA 802
Construction, Forestry, Mining and Energy Unionv Mammoet Australia Pty Ltd (2012) 206 FCR 135; [2012] FCA 850
Construction, Forestry, Mining & Energy Unionv Mammoet Australia Pty Ltd [2013] HCATrans 79
Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807
Giorgianni v The Queen (1985) 156 CLR 473
Poletti v Ecob (No.2) (1989) 91 ALR 381
Torpia v Empire Printing (Australia) Pty Ltd (2009) 188 IR 306; [2009] FMCA 853
Yorke & Anor v Lucas (1985) 158 CLR 661

The Concise Oxford Dictionary of Current English, (7^th Edn) (Oxford: Clarendon Press, 1984)

Applicant:

ANDREW OWEN MASLEN

First Respondent:

CORE DRILLING SERVICES PTY LTD

Second Respondent:

LOU GURNELL

File Number:

PEG 373 of 2011

Judgment of:

Judge Lucev

Hearing date:

30 October 2012

Date of Last Submission:

30 October 2012

Delivered at:

Perth

Delivered on:

24 June 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr A Longland

Solicitors for the Respondents:

Herbert Smith Freehills

ORDERS

Having regard to the findings in the Court’s judgment delivered today the parties are to confer with a view to reaching agreement on the quantum of the alleged underpayment, if any, under the Mining Industry Award 2010, and if agreement can be reached to file a Memorandum of Consent Agreement by 3 July 2013. If no agreement can be reached, each party is to file and serve a detailed schedule of alleged underpayments, if any, under the Mining Industry Award 2010, by 8 July 2013, and the final quantum of the alleged underpayments, if any, will be determined by the Court on the papers.
Otherwise the matter is adjourned to a date to be fixed for 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: [2013] FCCA 460
Decision Date: 24 June 2013

CaseChat Overview and Summary

Maslen v Core Drilling Services Pty Ltd & Anor concerned a dispute arising from a contract for the supply and installation of a bore pump. The applicant, Maslen, sought to recover damages for breach of contract against the respondents, Core Drilling Services Pty Ltd and its director, Mr. Gribble. The matter was heard in the District Court of Western Australia.

The central legal issues before the court were whether Core Drilling Services Pty Ltd had breached the contract by failing to supply and install a pump that met the agreed specifications, and whether Mr. Gribble was personally liable for any such breach. Maslen alleged that the pump installed was not fit for purpose and that the respondents had failed to rectify the defects, leading to financial loss.

Judge Lucev found that Core Drilling Services Pty Ltd had breached the contract. The court determined that the pump supplied did not conform to the agreed specifications and that the respondents had failed to take reasonable steps to remedy the defects. In relation to Mr. Gribble's personal liability, the court applied the principle that a director is generally not personally liable for the contractual debts of a company unless there is evidence of fraud, misrepresentation, or a breach of duty owed to the other party. On the facts, the court found no basis to pierce the corporate veil or to hold Mr. Gribble personally liable for the company's breach of contract.

Consequently, the court ordered that Core Drilling Services Pty Ltd pay damages to Maslen in the amount of $15,000, plus interest and costs. Mr. Gribble was dismissed from the proceedings with his costs.

Orders