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McLoughlin v Randstad Pty Ltd

McLoughlin v Randstad Pty Ltd

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Case Copied 25 January 2023 40 min read

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Federal Circuit and Family Court of Australia
(DIVISION 2)
McLoughlin v Randstad Pty Ltd [2023] FedCFamC2G 30

File number(s): SYG 143 of 2022

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 25 January 2023

Catchwords: INDUSTRIAL LAW – Practice and procedure – Full Court of the Federal Court of Australia allowed an appeal from a Judge of the Federal Circuit and Family Court of Australia (Division 2) (Court) and ordered that the proceeding be remitted for rehearing before another Judge of the Court (Remitter Order) – whether the Remitter Order was an order for a further hearing with the consequence that the hearing on Remitter will be a continuation of the first hearing – whether the Remitter Order was an order for a new trial – Remitter Order an order for a new trial.

Legislation:
Evidence Act 1995 (Cth) ss 64(2), 64(3)

Fair Work Act 2009 (Cth) ss 340, 351

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Court of Australia Act 1976 (Cth) ss 24, 27, 28(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04

Common Law Procedure Act 1899 (NSW) s 160

Cases cited:
Addenbrooke Pty Ltd v Dunkan (No 3) [2017] FCAFC 166

Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22

Australian Iron and Steel Ltd v Greenwood [1962] HCA 42

Builders Licensing Board v Sperway Constructions (SYD.) Pty Ltd (1976) 135 CLR 616

Conway v The Queen [2002] HCA 2

CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479

CSR Limited v Della Maddalena [2006] HCA 1

Dearman v Dearman (1908) 7 CLR 549

Fernando v Commonwealth of Australia [2014] FCAFC 181

Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) 49 SR (NSW) 300

Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598

Kotsis v Kotsis (1970) 122 CLR 69

McLoughlin v Randstad Pty Ltd [2021] FCAFC 160

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558

Pateman v Higgin (1957) 97 CLR 521

Pettitt v Dunkley [1971] 1 NSWLR 376

Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221

Police Federation of Australia v Nixon [2011] FCAFC 161

Quilter v Mapleson (1882) 9 QBD 672

Radmanovich v Nedeljkovic [2002] NSWSC 212

Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78

Division: Fair Work

Number of paragraphs: 43

Date of hearing: 27 June 2022

Place: Sydney

Counsel for the Applicant: Ms K Edwards

Solicitor for the Applicant: Turner Freeman Lawyers

Counsel for the Respondents: Mr M Seck

Solicitor for the Respondents: Holding Redlich Lawyers
ORDERS

SYG 143 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BEVERLY MCLOUGHLIN

Applicant

AND:
RANDSTAD PTY LTD ABN 28…

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: [2023] FedCFamC2G 30
Decision Date

CaseChat Overview and Summary

In the case of McLoughlin v Randstad Pty Ltd, the Federal Circuit and Family Court of Australia (Division 2) was tasked with determining the proper construction of a Remitter Order issued by the Full Court of the Federal Court of Australia. The Full Court had allowed an appeal by Ms McLoughlin against the orders of a Judge of the Federal Circuit and Family Court of Australia (Division 2) that dismissed Ms McLoughlin's proceeding brought against the respondents under the Fair Work Act 2009 (Cth). The Full Court made a number of other orders, including an order that the matter be remitted to the Federal Circuit Court for rehearing before another Judge (Remitter Order). The dispute between the parties turned on the proper construction of the Remitter Order, which depended on identifying the nature of the jurisdiction the Full Court exercised when allowing the appeal from the Primary Judge's orders and the basis on which the Full Court made the Remitter Order. Ms McLoughlin argued that the Full Court made the Remitter Order pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), while the respondents argued that the Full Court did so pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth). The determination of the dispute also required the Court to identify the relevant principles for construing orders of a court. The Court concluded that the Remitter Order was an order of the sort comprehended by s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth). The Court relied on the passages from the Full Federal Court's reasons for judgment on which the respondents relied, which made it plain that the Full Federal Court's intention in remitting the proceeding to this Court was that a Judge of this Court, other than the Primary Judge, would hear and determine the matter in the way it is bound to hear all matters, namely, by holding a hearing in which each party is given the opportunity to adduce and test evidence, and make submissions, in support of their case. The Court listed the matter for directions at 9.30 am on 8 February 2023 to give the parties an opportunity to consider and possibly agree on what further directions should be made for the hearing of the matter.

Orders