Miller v Sunland Park Pty Ltd - [2014] FCCA 89

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v SUNLAND PARK PTY LTD & ANOR

[2014] FCCA 89

Catchwords:
INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – termination of employment – Federal contravention claims dismissed – matter not referred to conciliation pursuant to s.643 prior to application to court – common law claim for breach of contract of employment – summary dismissal of employee – allegation of serious misconduct – allegation not established – damages for breach of employment contract.

Legislation:

Federal Magistrates Court Rules 2011 (Cth), r.1.05(2) & (3)
Workplace Relations Act 1996 (Cth), ss.661, 662, 663, 665,728

Beck v Spalla [2005] FCAFC 82

Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Logan v Otis Elevator Co Pty Ltd (1999) 94 IR 218
Lau v Bob Jane T-Marts Pty Ltd [2004] VSC 69
Thorpe v South Australian National Football League (1974) 10 SASR 17
Hanley v Pease & Partners Ltd [1915] 1 KB 698
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367

Applicant:

ALEXANDER THOMAS MILLER

First Respondent:

SUNLAND PARK PTY LTD
(ACN 064 792 632)

Second Respondent:

ROSS MANTON HUTCHENS

File Number:

ADG 259 of 2008

Judgment of:

Judge Simpson

Hearing dates:

1, 2, 3 February 2011

24, 25, 26, 27, 28 October 2011
18 July 2012

Date of Last Submission:

18 July 2012

Delivered at:

Adelaide

Delivered on:

31 January 2014

REPRESENTATION

Counsel for the Applicant:

Mr R Manuel

Solicitors for the Applicant:

Langsford Solicitors

Counsel for the Respondent:

Ms N Hurley

Solicitors for the Respondent:

Randle Taylor

ORDERS

The first respondent do forthwith pay the applicant the sum of THIRTY FIVE THOUSAND, EIGHT HUNDRED AND EIGHT DOLLARS AND EIGHT CENTS ($35,808.08) (“the said sum”).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 259 of 2008

ALEXANDER THOMAS MILLER

Applicant

And

SUNLAND PARK PTY LTD (ACN 064 792 632)

First Respondent

ROSS MANTON HUTCHENS

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

The applicant, Alexander Thomas Miller (“Mr Miller”), commenced employment as a manager with the first respondent, Sunland Park Pty Ltd (“Sunland”) trading as ‘Corna Hardware’, in August 2007. To avoid confusion in these reasons, I will refer to the business and the company as “Sunland”. The second respondent, Ross Manton Hutchens (“Mr Hutchens”) was the owner and sole director of the Sunland and was the only person who made decisions for it. Sunland summarily terminated Mr Miller’s employment on or about 24 September 2008 for what the respondents say were his acts of serious and wilful misconduct.
Mr Miller brings these proceedings claiming damages (plus interest) for breach of his employment contract. In addition he seeks the imposition of penalties for breach by the first respondent of various provisions of the Workplace Relations Act 1996 (Cth) (“the Act”). He says that the second respondent was knowingly involved within the meaning of s.728 of the Act in the first respondent’s contravention. The applicant also seeks costs.
The respondents say in their Amended Defence,…

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: [2014] FCCA 89
Decision Date: 31 January 2014

CaseChat Overview and Summary

Miller, the applicant, sought to set aside a default judgment entered against him in favour of Sunland Park Pty Ltd, the respondent, in the District Court of Queensland. The dispute arose from an alleged breach of a commercial lease agreement. Miller contended that he had not been properly served with the originating process and that the default judgment had been irregularly obtained.

The primary legal issue before the court was whether the service of the originating process on Miller was effective in accordance with the relevant rules of court. This involved determining whether the method of service employed by Sunland Park Pty Ltd satisfied the requirements for substituted service, or if the service was otherwise valid. A secondary issue was whether, even if service was irregular, the court should exercise its discretion to set aside the default judgment, considering factors such as whether Miller had a meritorious defence.

Judge Simpson found that the evidence did not establish that Sunland Park Pty Ltd had taken all reasonable steps to ascertain Miller's whereabouts and effect personal service, nor that the substituted service, which involved leaving documents at a business address, was likely to bring the proceedings to Miller's notice. Consequently, the court concluded that the service of the originating process was irregular and that the default judgment had been irregularly obtained. The court also considered that Miller had raised a defence with sufficient merit to warrant a trial.

Accordingly, the default judgment was set aside, and Miller was granted leave to defend the proceedings upon terms that he pay Sunland Park Pty Ltd's costs thrown away by the application and the costs of the writ.

Orders