McShane v Image Bollards Pty Ltd

Case [2011] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCSHANE v IMAGE BOLLARDS PTY LTD [2011] FMCA 215

CONTRACT – Alleged breach of contract of employment – alleged unpaid sales commission and superannuation – whether terms for payment of sales commission proven.

INDUSTRIAL LAW – Alleged breach of contract of employment – matter in small claims jurisdiction.

COURTS – Federal Magistrates Court – small claims jurisdiction.

EVIDENCE – Small claims jurisdiction – evidentiary requirements where rules of evidence do not apply and capacity to act informally without regard to legal forms and technicalities – evidence with rational probative force.

PRACTICE AND PROCEDURE – Representation of corporations in small claims jurisdiction.
Fair Work Act 2009 (Cth), ss.12, 139, 542(1), 548, 570(2)
Fair Work (Registered Organisation) Act 2009 (Cth), s.353A
Fair Work Regulations 2009 (Cth)
Federal Magistrates Act 1999 (Cth), ss.3(a) and (b), 44(a), (b) and (c)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.04, 45.11, 45.13
Judiciary Act 1903 (Cth), ss.55B(3), 55C, 78
Alcantara & Anor v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626
Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246
Salemi v Mackellar (No.2) (1997) 137 CLR 396
University of Western Australia v Gray and Others (No.25) (2009) 180 FCR 483; [2009] FCA 1227
Applicant: PHILLIP MCSHANE
Respondent: IMAGE BOLLARDS PTY LTD AS TRUSTEE FOR THE SCOTT FAMILY TRUST TRADING AS IMAGE BOLLARDS
File Number: PEG 39 of 2011
Judgment of: Lucev FM
Hearing date: 31 March 2011
Date of Last Submission: 31 March 2011
Delivered at: Perth
Delivered on: 18 April 2011

REPRESENTATION

For the Applicant: Mr P McShane
For the Respondent: Mr A Scott (by leave)

ORDERS

  1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 39 of 2011

PHILLIP MCSHANE

Applicant

And

IMAGE BOLLARDS PTY LTD AS TRUSTEE FOR THE SCOTT FAMILY TRUST TRADING AS IMAGE BOLLARDS

Respondent

REASONS FOR JUDGMENT

Small claims jurisdiction – application

  1. This is an application by Mr Phillip McShane in the small claims list of the Fair Work Division of this Court for an order[1] requiring his former employer, Image Bollards Pty Ltd,[2] to pay him:

    a)$16,000; and

    b)the superannuation guarantee entitlement of 9% on the sum of $16,000.

    [1] Fair Work Act 2009 (Cth), s.548(1) (“FW Act”).

    [2] “Image Bollards”.

Small claims jurisdiction – basis for amount

  1. Section 548 of the FW Act relevantly provides as follows:

    (1)  Proceedings are to be dealt with as small claims proceedings under this section if:

    (a) …

    (b)  the order relates to an amount referred to in subsection (1A); and

    (c) …

    (1A)  The amounts are as follows:

    (a)  an amount that an employer was required to pay to, or on behalf of, an employee:

    (i)  under this Act or a fair…

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Details
AGLC
McShane v Image Bollards Pty Ltd [2011] FMCA 215
Case
[2011] FMCA 215
Decision Date

CaseChat Overview and Summary

McShane, the applicant, commenced proceedings against Image Bollards, the respondent, in the Federal Magistrates Court's small claims jurisdiction, seeking unpaid sales commission and superannuation. The applicant alleged that he was entitled to commission and superannuation payments under the terms of his employment contract, which had been breached by the respondent. The court was required to determine whether the applicant had proven the existence of a contractual obligation to pay commission and superannuation, and whether the respondent had breached that obligation.

The court noted that the small claims jurisdiction allows for a more informal approach to the presentation of evidence and procedure, with the aim of providing a cost-effective and efficient resolution of disputes. In this case, the court found that the applicant had not provided sufficient evidence to establish the terms of the contract, including the provisions for commission and superannuation payments. The court held that the applicant's evidence, which consisted largely of his own testimony and a copy of the employment contract, lacked the necessary rational probative force to establish the existence of the contractual terms on the balance of probabilities.

Consequently, the court dismissed the applicant's claim for unpaid sales commission and superannuation. The respondent's application to strike out the applicant's claim was also dismissed, as the court found that the respondent had not established that the claim was frivolous or vexatious. The court emphasised the importance of providing clear and concise evidence in small claims proceedings, and noted that the rules of evidence do not apply in this jurisdiction. However, the court also stressed that the evidence presented must still have a rational probative force and be capable of establishing the relevant facts on the balance of probabilities.

The court did not make any orders for costs.

Orders

Orders of the court

1.

That the application be dismissed.

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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