McConvill & Associates v Carbone

FEDERAL COURT OF AUSTRALIA

McConvill & Associates v Carbone [2022] FCA 265  

Appeal from:

Carbone v James McConvill & Associates [2021] FCCA 661

File number:

VID 241 of 2021

Judgment of:

SNADEN J

Date of judgment:

23 March 2022

Catchwords:

PRACTICE AND PROCEDURE – interlocutory applications – application to set aside subpoenas – subpoenas issued in support of application for security of costs – no utility to subpoenas – application to set aside subpoenas granted – application by respondents for security for costs in an appeal from the Federal Circuit Court of Australia – appeal in a matter arising under the Fair Work Act – effect of s 570 of the Fair Work Act – limited prospect of an order for costs given s 570 of the FW Act – not persuaded that appellants unable to satisfy adverse costs order – exercise of discretion –application for security for costs dismissed – application by appellants for stay of execution of judgment appealed from pending determination of appeal – no circumstances justifying stay – application for stay dismissed

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) s 56

Cases cited:

Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1

Clack v Collins (No 1) [2010] FCA 513

Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494

Tait v Bindal People [2002] FCA 322

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

25

Date of hearing:

18 March 2022

Counsel for the Appellants:

Mr M J Wyles

Solicitor for the Appellants:

Carter Newell Lawyers

Counsel for the Respondent:

Mr M G Rinaldi

Solicitor for the Respondent:

Cooper and Sanders Legal

ORDERS

VID 241 of 2021

BETWEEN:

JAMES MCCONVILL & ASSOCIATES

First Appellant

JAMES MCCONVILL

Second Appellant

AND:

JOSEPH CARBONE

Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	23 MARCH 2022

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application dated 24 February 2022 be dismissed.

2.The appellants’ interlocutory application dated 15 March 2022 be dismissed.

3.The costs of each application be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1. The respondent is a former employee of the law practice operated by the first appellant.  The second appellant is the first appellant’s sole director.  By orders made by the court below on 9 April 2021 and 24 May 2021, the respondent was granted relief in the form of compensation, interest and penalties pertaining to conduct engaged in by the appellants in contravention of various provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).  The present appeal challenges those orders (or the bulk of them).

2. Before the court presently are two interlocutory applications:  one filed by the respondent on 24 February 2022, seeking relief in the nature of security for costs; and one filed by the appellants on 15 March 2022, seeking that the orders of…