McConvill & Associates v Carbone

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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…

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Details
Case
[2022] FCA 265
Decision Date

CaseChat Overview and Summary

In the case of McConvill & Associates v Carbone, the parties were engaged in a legal dispute that had originated in the Federal Circuit Court of Australia and was now the subject of an appeal to a higher court. The core of the dispute involved two interlocutory applications: one by the respondents to set aside subpoenas issued in support of an application for security of costs, and another by the appellants for a stay of execution of a judgment pending the outcome of their appeal. The appellants sought security for costs in relation to the appeal, which had arisen under the Fair Work Act.

The court was tasked with deciding whether the subpoenas issued in support of the security of costs application were necessary and whether there was any utility in maintaining them. Additionally, the court had to assess the appellants' ability to satisfy any adverse costs order and the prospects of success in their appeal. The effect of section 570 of the Fair Work Act was also considered, as it limited the court's ability to grant an order for costs in certain circumstances. The court further had to determine whether there were any exceptional circumstances justifying a stay of execution of the judgment pending the appeal.

After considering the arguments presented, the court found that there was no utility in the subpoenas and thus granted the respondents' application to set them aside. Regarding the security of costs, the court was not persuaded that the appellants would be unable to satisfy an adverse costs order, and it exercised its discretion accordingly, dismissing the appellants' application for security for costs. The court also dismissed the appellants' application for a stay of execution of the judgment, finding no circumstances that justified such a stay. The costs of each application were reserved.

The final orders of the court were that the respondents' interlocutory application dated 24 February 2022 be dismissed, the appellants' interlocutory application dated 15 March 2022 be dismissed, and the costs of each application be reserved. The entry of these orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

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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