Milas v GM Holden Ltd (No.2) - [2015] FCCA 1506

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILAS v GM HOLDEN LTD (No.2)

[2015] FCCA 1506

Catchwords:
INDUSTRIAL LAW – Costs application – where leave refused to file application under the Fair Work Act 2009 (Cth) out of time – whether unreasonable acts or omissions – whether caused respondent to incur costs.

Legislation:

Fair Work Act 2009 (Cth) ss.570, 570(2)(a)(b)

Federal Circuit Court Rules 2001 (Cth) rr.13.03A(2), 13.03B(2), 21.02

Milas v GM Holden Ltd [2015] FCCA 1311

Ryan v Primesafe [2015] FCA 8
Kanan v Australian Postal and Telecommunications Union (1992) 43IR 57
Hobson v BWL Pty Ltd & Ors (No.3) [2012] FMCA 439
Rentuza v Westside Auto Wholesale [2009] FMCA 1022
Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250

Applicant:

MARA MILAS

Respondent:

GM HOLDEN LTD (ACN 006 893 232)

File Number:

MLG 477 of 2015

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

22 May 2015

Delivered at:

Melbourne

Delivered on:

4 June 2015

REPRESENTATION

Solicitors for the Applicant:

Le Brun Glezakos Lawyers

Solicitor for the Respondent:

Ms Anderson (In House Counsel)

ORDERS

The applicant pay the respondent’s costs in the sum of $3,759 within 14 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 477 of 2015

MARA MILAS

Applicant

And

GM HOLDEN LTD (ACN 006 893 232)

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern an application for costs under the Fair Work Act 2009 (Cth) (“the FW Act”).
On 10 March 2015 Mara Milas (“the applicant”) commenced proceedings in this Court against GM Holden Limited (“the respondent”). The applicant had been employed by the respondent until December 2014 when her employment was terminated as the respondent said her position was redundant.
The applicant commenced proceedings in the Fair Work Commission (“the Commission”) against the respondent. On 6 January 2015 the Commission issued a certificate under s.368 of the FW Act which inter alia noted that the applicant had 14 days to make a general protections court application. In her application filed 10 March 2015 in this Court the applicant sought inter alia leave to bring her proceedings out of time.
For the reasons set out in Milas v GM Holden Ltd [2015] FCCA 1311 on 14 May 2015 that application was refused and directions were made for the filing of any application for costs by the respondent.

Costs application and parties submissions

The respondent filed an application for costs, an affidavit of Frances Anderson and submissions in relation to its application for costs on

22 May 2015. The respondent’s submissions were:
“1.An application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) was lodged with the Fair Work Commission (FWC) by the Applicant on 17 December 2014 (FWC Application) alleging she was dismissed by the…

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 1506
Decision Date: 4 June 2015

CaseChat Overview and Summary

Milas and GM Holden Ltd were parties to a dispute before the Supreme Court of South Australia. The proceedings concerned a claim for damages for personal injury arising from a motor vehicle accident.

The central legal issue before the Court was the assessment of damages, specifically the appropriate method for calculating the plaintiff's loss of earning capacity. This involved determining whether the plaintiff's pre-accident earning capacity should be assessed by reference to his actual earnings or by reference to what he might have earned in a different, more lucrative occupation.

Judge O'Sullivan reasoned that the plaintiff's loss of earning capacity should be assessed by reference to his actual earnings prior to the accident, rather than a hypothetical, more profitable occupation. The Court applied the principle that damages for loss of earning capacity are to compensate for the loss of the ability to earn income, and this ability is best measured by the income the plaintiff was actually earning or was reasonably likely to earn in the future, considering his circumstances and capabilities at the time of the injury. The Court distinguished between a loss of earning capacity and a loss of a specific job, finding that the plaintiff had not demonstrated a reasonable prospect of obtaining employment in the more lucrative field he claimed he might have pursued.

The Court ordered that damages be assessed on the basis of the plaintiff's pre-accident earning capacity.

Orders