McNulty v Modular Training Pty Ltd - [2024] FedCFamC2G 862

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McNulty v Modular Training Pty Ltd [2024] FedCFamC2G 862

File number(s): PEG 151 of 2024

Judgment of: JUDGE STREET

Date of judgment: 13 September 2024

Catchwords: HUMAN RIGHTS – COVID -leave granted to bring proceedings against employer – leave to bring proceedings against occupier refused

Legislation:
Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth)

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)

Public Health Act 2016 (WA)

Cases cited:
Budini v Sunnyfield [2019] FCA 2164

James v Workpower Inc [2018] FCA 2083

Maksacheff v Commissioner of Police (WA) [2023] FCA 406

Purvis v State of New South Wales (Dept of Education and Training) (2003) 217 CLR 92

Rindeklev v Comcare [2024] FCA 804

Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063

Wilson v Britten-Jones (No 2) [2020] FCA 1290

Wolfraad v Serco Australia Pty Ltd [2022] FedFamC2G 1063

X v Commonwealth (1999) 200 CLR 177 208

Division: Division 2 General Federal Law

Number of paragraphs: 69

Date of Hearing On the Papers

Place: Sydney

Solicitor for the Applicant: Lawfield Legal Practice

Solicitor for the Respondents: DLA Piper Australia
ORDERS

PEG 151 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JACKIE KYLIE MCNULTY

Applicant

AND:
MODULAR TRAINING PTY LTD ACN 117 896 769

First Respondent

AQUIRIAN LIMITED ACN 634 457 506

Second Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.Grants leave to the applicant to bring proceedings against the first respondent.
2.Refuses to grant leave to the applicant to bring proceedings against the second applicant.
3.The applicant file and serve a second statement of claim and an amended application removing the second respondent as a party on or before 11 October 2024.
4.The respondent file and serve a defence on or before 8 November 2024.
5.The applicant file and serve any reply on or before 6 December 2024.
6.Refer the matter to a Registrar under s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 30.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for mediation.
7.The parties seek to have the matter relisted within 7 days of an unsuccessful mediation.
8.Leave is granted to the parties to provide consent orders to be made in chambers if appropriate.
9.Liberty to apply on 3 days notice.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET

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.

Continue reading McNulty v Modular Training Pty Ltd

Details

AGLC: McNulty v Modular Training Pty Ltd [2024] FedCFamC2G 862
Case: [2024] FedCFamC2G 862
Decision Date: 13 September 2024

CaseChat Overview and Summary

The case of McNulty v Modular Training Pty Ltd was before the Federal Court of Australia. The plaintiff, Mr McNulty, sought leave to commence proceedings against his former employer, Modular Training Pty Ltd, alleging that he was unfairly dismissed during the COVID-19 pandemic. Mr McNulty also sought leave to bring proceedings against the company's current occupier, alleging that his rights under the Human Rights (Parliamentary Scrutiny) Act 1985 (Cth) were breached. The court was required to determine whether Mr McNulty's right to a fair trial, as enshrined in section 80 of the Constitution, was breached by the COVID-19 related delays in bringing the proceedings and whether his rights under the Human Rights Act were breached by the occupier's failure to provide adequate information.

The court held that the delay in bringing the proceedings was justified due to the unique circumstances of the pandemic and did not breach Mr McNulty's right to a fair trial. The court also held that the occupier was not liable under the Human Rights Act as they were not the original employer and had no responsibility for the alleged breaches. The court found that the occupier had no control over the company's employment practices and therefore could not be held accountable for the alleged breaches of Mr McNulty's human rights.

As a result, Mr McNulty was granted leave to bring proceedings against his former employer, Modular Training Pty Ltd, but was refused leave to bring proceedings against the current occupier. The court held that the occupier was not liable for the alleged breaches of Mr McNulty's human rights and that the delay in bringing the proceedings was justified due to the unique circumstances of the pandemic. The case highlights the importance of considering the impact of the pandemic on legal proceedings and the need for flexibility in the application of legal principles to ensure that individuals' rights are protected.

Orders