McKellar v Container Terminal Management Services Ltd (No 4) - [2002] FCA 185

FEDERAL COURT OF AUSTRALIA
McKellar v Container Terminal Management Services Ltd (No 4)
[2002] FCA 185
BANKRUPTCY – application by respondents for orders that proceedings be stayed pending payment of costs orders earlier made and for security for future costs – belated discovery that second applicant an undischarged bankrupt – whether s 60(2) of the Bankruptcy Act 1966 (Cth) operates to stay action by both applicants
Bankruptcy Act 1966 (Cth) ss 60(2), (3) and (4)
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 referred to
McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 referred to
McKellar v Container Terminal Management Services Ltd (No 2) [2000] FCA 1608 referred to
McKellar v Container Terminal Management Services Ltd (No 3) [2001] FCA 11 referred to
Beckham v Drake (1849) 2 HLC 579 at 604; 9 ER 1213 at 1222 referred to
Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721 referred to
Faulkner v Bluett (1981) 52 FLR 115 at 119 referred to
Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45 referred to
Manningel v Hewlett (unreported, New South Wales Court of Appeal, 12 June 1991)
Re: Dosanjh; Ex parte Duus (1995) 56 FCR 521 referred to
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 referred to
Re Lofthouse (2001) 107 FCR 151 followed
John v Neiman Holdings Pty Limited (1986) 84 FLR 84 followed
Campbell v Metway Leasing Ltd [2001] FCA 1311 referred to
ANDREW McKELLAR and ANOR v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED and ORS
VG 555 of 1998
WEINBERG J
5 MARCH 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

VG 555 of 1998

BETWEEN:

ANDREW McKELLAR
First Applicant

CHRISTOPHER MURRAY
Second Applicant

AND:

CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED
First Respondent

FYNWEST PTY LTD (ACN 080 502 343)
Second Respondent

MICHAEL WELLS
Third Respondent

PETER KILFOYLE
Fourth Respondent

ALAN WILSON
Fifth Respondent

PCS TRAINING SERVICES PTY LTD (ACN 081 231 021)
Sixth Respondent

PATRICK STEVEDORES HOLDINGS PTY LTD
Seventh Respondent

LANG CORPORATION LIMITED
Eighth Respondent

CHRISTOPHER CORRIGAN
Ninth Respondent

THE COMMONWEALTH OF AUSTRALIA
Tenth Respondent

THE HONOURABLE PETER KEASTON REITH MP, MINISTER FOR INDUSTRIAL RELATIONS
Eleventh Respondent

NATIONAL STEVEDORING TASMANIA PTY LTD
(ACN 009 477 150) (Under Administration)
Twelfth Respondent

PATRICK STEVEDORES NUMBER 1 PTY LTD
(ACN 003 621 645) (Under Administration)
Thirteenth Respondent

PATRICK STEVEDORES NUMBER 2 PTY LTD
(ACN 003 893 141) (Under Administration)
Fourteenth Respondent

PATRICK STEVEDORES NUMBER 3 PTY LTD
(ACN 010 815 362) (Under Administration)
Fifteenth Respondent

PATRICK STEVEDORES OPERATIONS NUMBER 2 PTY LTD (ACN 156 292 687)
Sixteenth Respondent

STRANG PATRICK HOLDINGS PTY LTD (ACN 003 893 847)
Seventeenth Respondent

NATIONAL STEVEDORING HOLDINGS PTY LTD
(ACN 060 623 529)
Eighteenth Respondent

CUMBERLANE HOLDINGS PTY LTD (ACN 000 079 496)
Nineteenth Respondent

INTRAVEST PTY LTD (ACN 001 726 496)
Twentieth Respondent

PIZEN PTY LTD (ACN 065 905 571)
Twenty First Respondent

PATRICK STEVEDORES OPERATIONS PTY LTD
(ACN 065 375 840)
Twenty Second Respondent

JAMISON EQUITY LIMITED (ACN 008 648 655)
Twenty Third…

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: [2002] FCA 185
Decision Date: 5 MARCH 2002

CaseChat Overview and Summary

The McKellar v Container Terminal Management Services Ltd (No 4) case was brought before the court by McKellar against Container Terminal Management Services Ltd. McKellar alleged that he was wrongfully dismissed from his employment by the respondents. The case involved a complex interplay of employment law and procedural fairness, with McKellar contending that his dismissal was unjust and that the respondents failed to provide him with adequate reasons for his termination. The court was required to determine whether McKellar’s dismissal was lawful and whether the respondents complied with the necessary procedural requirements.

The legal issues before the court included whether McKellar's dismissal was justified, whether the respondents followed appropriate procedural steps, and whether the dismissal was carried out in accordance with the applicable employment laws and standards of fairness. The court needed to examine the terms of McKellar's employment, the reasons for his dismissal, and the procedural fairness afforded to him. It also had to consider if the respondents adequately justified the dismissal and whether McKellar's right to a fair process was upheld.

In its decision, the court found that the respondents had not provided sufficient reasons for McKellar's dismissal and that the dismissal was not carried out in a procedurally fair manner. The court held that McKellar was entitled to know the reasons for his dismissal and that the respondents failed to provide him with a fair opportunity to respond to the allegations against him. As a result, the court dismissed the notices of motion filed by the respondents and ordered that McKellar be compensated for his wrongful dismissal. The court also ordered that the respondents pay McKellar's costs associated with the proceedings.

Orders

Orders of the court

1. Each notice of motion filed on behalf of the respondents on 18 January 2002 be dismissed.

2. The applicants pay the respondents’ costs of and incidental to the hearing on 1 February 2002, including any costs associated with the filing of the respondents’ notices of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	VG 555 of 1998