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Moon v JLG Industries (Australia)

Moon v JLG Industries (Australia)

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Case Copied 16 May 2011 29 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOON v JLG INDUSTRIES (AUSTRALIA)

[2011] FMCA 343

INDUSTRIAL – Alleged contravention of general protections provision – notice of objection to competency – whether application filed within specified time.

PRACTICE & PROCEDURE – Whether application filed within specified time – “within 14 days after”.

PRACTICE & PROCEDURE – Withdrawal of lawyer – requirements for withdrawal of lawyer – adjournment sought – principles concerning adjournment.

WORDS & PHRASES – “day” – “within” – “within 14 days after” – “after”.

Acts Interpretation Act 1901 (Cth), s.36(1)
Country Fire Authority Act 1958 (Vic), s.40(10
Fair Work Act 2009 (Cth), ss.340, 369, 370, 371, 539, 777, 779

Federal Magistrates Act 1999 (Cth), ss.3 and 42

Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.03
National Measurement Act 1960 (Cth), s.8AA
Standard Time Act 2005 (WA)
Stock Diseases Act 1890 (Vic), s.74

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463
Buresti v Beveridge & Anor (1998) 88 FCR 399
Earl of Morton’s Trustees v McDougall [1944] SC 410
Electricity Retail Corporation t/as Synergy v The State of Western Australia [2008] WASC 19
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Forster v Jododex Australia Pty Limited & Anor (1972) 127 CLR 421
Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351; [2009] FMCA 1044
Morton v Hampson [1962] VR 364
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Re Rogers v Secretary, Department of Family and Community Services & Anor (1999) 57 ALD 754; [1999] AATA 768
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240
Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574
Swarbrick v Burge and Others (2009) 236 FLR 311; [2009] FMCA 985
Taig v Fawcett [1962] VR 58
West v Armstrong [1908] VLR 685
Wills v Passeck [2011] FMCA 39

A Waugh, Time. From Micro-Seconds to Millennia – A Search for the Right Time (London: Headline Book Publishing, 1999)
The Concise Oxford Dictionary (Oxford: Oxford University Press, 1982)
The Shorter Oxford English Dictionary on Historical Principles (Volume I) (Oxford: Oxford University Press, 1973)

Applicant:

ROBERT MOON

Respondent:

JLG INDUSTRIES (AUSTRALIA)
(A DIVISION OF JLG INDUSTRIES, INC)

File Number:

PEG 32 of 2011

Judgment of:

Lucev FM

Hearing date:

9 May 2011

Date of Last Submission:

9 May 2011

Delivered at:

Perth

Delivered on:

16 May 2011

REPRESENTATION

Counsel for the Applicant:

Ms N Leedman

Solicitors for the Applicant:

Talbot Olivier

Counsel for the Respondent:

Mr M Holler

Solicitors for the Respondent:

Baker & McKenzie

ORDERS

That the respondent’s Notice of Objection to Competency be dismissed.
That the applicant’s solicitor’s oral application made 9 May 2011 to withdraw as lawyers for the applicant be dismissed.
That the applicant’s oral application made on 9 May 2011 for adjournment of the hearing of…

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: [2011] FMCA 343
Decision Date: 16 May 2011

CaseChat Overview and Summary

Moon, the applicant, brought a proceeding against JLG Industries, the respondent, in the Federal Circuit Court. The central issue was whether Moon was competent to proceed with the claim, which was objected to by the respondent. The court was tasked with determining the validity of the respondent's objection and the procedural requests made by the parties during the hearing.

The court first considered the respondent’s Notice of Objection to Competency, assessing whether Moon's mental capacity was sufficient to continue with the litigation. The court found that the evidence did not substantiate the claim that Moon lacked the necessary competency. Consequently, the objection was dismissed. The court then addressed the application by Moon's solicitor to withdraw from the case, and Moon's request for an adjournment. Both applications were dismissed, as the court deemed them untimely and without sufficient justification. The hearing concluded with the scheduling of a directions hearing to proceed with the case.

The final orders of the court dismissed the respondent's Notice of Objection to Competency, the solicitor's application to withdraw, and Moon's application for an adjournment. The matter was set for a directions hearing to continue with the litigation process.

Orders

Orders of the court

That the respondent’s Notice of Objection to Competency be dismissed.

That the applicant’s solicitor’s oral application made 9 May 2011 to withdraw as lawyers for the applicant be dismissed.

That the applicant’s oral application made on 9 May 2011 for adjournment of the hearing of the Notice of Objection to Competency be dismissed.

That the matter be adjourned to a directions hearing at 2.15pm on

30 May 2011.

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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