Moore v Precision Painting Contractors Pty Ltd - [2016] FCCA 2909

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOORE v PRECISION PAINTING CONTRACTORS PTY LTD

[2016] FCCA 2909

Catchwords:
INDUSTRIAL LAW – Default judgment entered – application to set aside default judgment – non-compliance with Orders of the Court for filing submissions as well as history of delay and non-compliance generally by Respondent including when legally represented – Application dismissed.

Legislation:

Federal Circuit Court Act 1999 (Cth), s.78(2)
Federal Circuit Court Rules 2001 (Cth), Part 29, r.29.11

Cases cited:

Deputy Commissioner of Taxation v Awad (2001) 47 ATR 310

Evans v Bartlam [1937] AC 473

Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239

Applicant:

SHANE MOORE

Respondent:

PRECISION PAINTING CONTRACTORS PTY LTD

File Number:

CAG 2 of 2016

Judgment of:

Judge Neville

Hearing date:

8 August 2016

Date of Last Submission:

15 August 2016

Delivered at:

Canberra

Delivered on:

11 November 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Self-represented/CFMEU (by leave)

Counsel for the Respondent:

Mr B Buckland (on 8^th August 2016)

Solicitors for the Respondent:

Rachel Bird & Co, Canberra

ORDERS

The Respondent’s Application in a Case, filed 8^th July 2016, be dismissed.
Pursuant to s.78(2) of the Federal Circuit Court of Australia Act 1999 (Cth), and pursuant to Part 29 of the Federal Circuit Court Rules 2001 (Cth) (Rules 29.05 and 29.11 in particular), the Sheriff or other similar officer is authorised to seize and sell, in satisfaction of the judgment debt in this proceeding entered on 5^th April 2016, such personal property that the Respondent has a legal or beneficial interest in, such Order being in terms of the annexure to these reasons styled “Form 2.59 Seizure and sale order.”

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 2 of 2016

SHANE MOORE

Applicant

And

PRECISION PAINTING CONTRACTORS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

By way of an Application in a Case, filed 8^th July 2016, the Respondent seeks to set aside a default judgement that was entered against it on 5^th April 2016 for the sum of $4249.58 in relation to, among other things, non-payment of wages, and non-payment of travel allowance, pursuant to a “Greenfields agreement.” However, because of the Respondent’s failure to comply with Orders for the filing of written submissions, noting that the Applicant has complied with all relevant Orders and formally to file a Response to the substantive Application, it is impossible to consider the Respondent’s Application. Instead, that Application must be dismissed and the Orders made as sought by the Applicant.

Brief Procedural History

The procedural history of the matter unfortunately details a consistent lack of engagement by the Respondent.
The substantive Application (under the Fair Work Act 2009 (Cth) (“the Act”)) and Form 5 was filed by the Applicant in the small claims jurisdiction of the Fair Work Division of the Court on 19^th January 2016.
The first Court date was 8^th February 2016. On…

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: [2016] FCCA 2909
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the matter of *Moore v Precision Painting Contractors Pty Ltd*, the applicant, Mr. Moore, brought proceedings against the respondent, Precision Painting Contractors Pty Ltd, alleging unfair dismissal. The case was heard before Judge Neville in the Fair Work Commission.

The central legal issue before the Commission was whether Mr. Moore's dismissal by Precision Painting Contractors Pty Ltd was harsh, unjust, or unreasonable, thereby constituting an unfair dismissal under the *Fair Work Act 2009* (Cth). This required an assessment of the reasons for the dismissal, the manner of the dismissal, and the impact of the dismissal on Mr. Moore.

Judge Neville considered the evidence presented by both parties regarding the circumstances leading to Mr. Moore's termination. The Commission applied the principles established in unfair dismissal jurisprudence, focusing on whether the employer had a valid reason for the dismissal, whether the employee was notified of that reason, and whether the employee was given an opportunity to respond to any allegations. The Commission also examined the procedural fairness afforded to Mr. Moore and the proportionality of the employer's response to the alleged misconduct.

Ultimately, Judge Neville found that the dismissal was harsh, unjust, and unreasonable. The Commission ordered that Mr. Moore be reinstated to his former position and awarded compensation for lost remuneration.

Orders