Milas v GM Holden Limited - [2015] FCCA 1311

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILAS v GM HOLDEN LTD

[2015] FCCA 1311

Catchwords:
INDUSTRIAL LAW – General protections application under Fair Work Act 2009 – application for extension of time – consideration of factors – no acceptable explanation for delay – request for extension refused.

Legislation:

Fair Work Act 2009 (Cth) ss.368, 370

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553
Abela v Telstra Corporation Ltd [2012] FMCA 17
Owen v Cudeco Ltd [2013] FCCA 1827
Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490

Applicant:

MARA MILAS

Respondent:

GM HOLDEN LTD

File Number:

MLG 477 of 2015

Judgment of:

Judge O’Sullivan

Hearing date:

14 May 2015

Date of Last Submission:

14 May 2015

Delivered at:

Melbourne

Delivered on:

14 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Sutton

Solicitors for the Applicant:

Le Brun Glezakos Lawyers

In house Counsel for the Respondent:

Ms Anderson

ORDERS

THE COURT ORDERS THAT:

The applicant’s application for extension of time in which to file the application is dismissed.
The respondent file and serve any application for costs with any evidence and submissions within 7 days.
The applicant file and serve any response thereto along with any evidence and submissions 7 days thereafter.
The respondent have 2 days after that to file and serve anything in reply.

AND THE COURT NOTES:

The parties shall provide in word format to the Associate to Judge O’Sullivan at associate.judgeo’sullivan@federalcircuitcourt.gov.au copies of all electronically filed documents.
Any application for costs will be determined on the papers unless otherwise requested in submissions.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 477 of 2015

MARA MILAS

Applicant

And

GM HOLDEN LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court today, 14 May 2015 are proceedings brought by

Mara Milas (“the applicant”) against GM Holden Limited (“the respondent”).
The applicant commenced these proceedings by application filed on
10 March 2015. The application was an application filed in the Fair Work Division of the Court. The application was given today as a first court date. The application sought final orders as particularised in the form 2. The applicant also sought an interim orders as set out in the application filed on 10 March 2015. The particular interim order sought was:
“The applicant seeks leave of this honourable Court to file the originating application and form 2 out of time.”
The application was supported by a form 2 where the applicant particularised the details of her employment with the respondent.

The applicant set out the allegations of contraventions of the Fair
Work Act 2009 (“the FW Act”) by the respondent. The remedies that were sought were set out in the form 2 that was filed on 10 March 2015.
Also filed on behalf of the applicant on 10 March 2015 was what…

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: [2015] FCCA 1311
Decision Date: 14 May 2015

CaseChat Overview and Summary

Milas and GM Holden Limited were parties to proceedings in the County Court of Victoria concerning a dispute arising from the sale of a motor vehicle. The applicant, Milas, sought damages from the respondent, GM Holden Limited, alleging breaches of consumer guarantees under the *Australian Consumer Law* (ACL).

The central legal issues before the court were whether the vehicle sold to Milas was of acceptable quality, fit for its disclosed purpose, and whether GM Holden Limited had breached its obligations to provide services with due care and skill. Specifically, the court had to determine if the defects experienced by Milas rendered the vehicle not of acceptable quality and if GM Holden Limited had failed to meet the required standard of care in its dealings with Milas.

Judge O’Sullivan found that GM Holden Limited had breached its obligations under the ACL. The court reasoned that the persistent and significant defects in the vehicle meant it was not of acceptable quality, nor was it fit for the purpose for which such vehicles are ordinarily used. Furthermore, the court determined that the conduct of GM Holden Limited in addressing the issues fell short of the standard of care and skill expected when providing services to a consumer. The court concluded that the defects were substantial and that Milas was entitled to a remedy.

Orders