Mortensen v Enviro Water Tanks Pty Ltd - [2020] FCCA 1951

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTENSEN v ENVIRO WATER TANKS PTY LTD & ANOR

[2020] FCCA 1951

Catchwords:
HUMAN RIGHTS – COURTS AND JUDICIAL SYSTEM – Applicant brings two proceedings, one under the Fair Work Act 2009 (Cth) (FW Act) and one pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – respondents assert or intend to assert as an answer to each of the claims made in both proceedings non-federal and federal claims the respondents and one other person make or intend to make in the Supreme Court of New South Wales – whether the claims made or intended to be made in the three proceedings arise out of a common substratum of facts – claims held to arise out of common substratum of facts – whether although all three claims arise out of a common substratum of facts there nevertheless is not one matter in relation to the claims made in the two proceedings brought under the FW Act and the AHRC Act – whether a federal claim that forms part of the claims made in the Supreme Court proceeding forms part of the matter arising under the FW Act and the AHRC Act – federal claim held not to be part of either of those matters but held to be a distinct federal matter – whether the federal claim made in the Supreme Court is associated to matters under the FW Act and the AHCR Act and for that reason the Federal Circuit Court has jurisdiction in relation to that matter under s.18 of the Federal Circuit Court of Australia Act 1999 (Cth) – whether non-federal claims made in the Supreme Court proceeding are to be treated as being part of only one of the matters arising under the FW Act and the AHRC Act and if so which one – whether the federal claim made in the Supreme Court proceeding is to be treated as associated with only one of the matters arising under the FW Act and the AHRC Act and if so which one – Federal Circuit Court has jurisdiction in relation to all claims with the non-federal claims being part of, and the federal claim being associated with, the matter arising under the AHRC Act.

Legislation:

Australian Constitution, ss.75, 76, 77(i), Chapter III
Australian Consumer Law, ss.18, 20, 36
Australian Human Rights Commission Act 1986 (Cth), ss.3, 46PO
Competition and Consumer Act 2010 (Cth), ss.5, 6, 130, 131(1), 138A, Schedule 2
Corporations Act 2001 (Cth), ss.58AA, 180, 181, 182, 183, 1317H, 1337B
Fair Trading Act 1987 (NSW), s.28
Fair Work Act 2009 (Cth), ss.44, 87, 97, 566, 570
Family Law Act 1975 (Cth), s.33
Federal Circuit Court of Australia Act 1999 (Cth), s.18
Federal Circuit Court Rules 2001 (Cth), r.28.09
Federal Court of Australia Act 1976 (Cth), s.32
Judiciary Act 1903 (Cth), s.79(1)
Sex Discrimination Act 1984 (Cth), ss.28A, 28B, 106

Cases cited:

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204…

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: [2020] FCCA 1951
Decision Date: 17 July 2020

CaseChat Overview and Summary

The applicant, Mortensen, brought two proceedings in the Federal Circuit Court of Australia against Enviro Water Tanks Pty Ltd and others. One proceeding was brought under the *Fair Work Act 2009* (Cth) (FW Act), and the other under the *Australian Human Rights Commission Act 1986* (Cth) (AHRC Act). The respondents asserted that claims they, and another party, intended to make in the Supreme Court of New South Wales would be an answer to the claims brought by the applicant in the Federal Circuit Court.

The court was required to determine whether the claims made or intended to be made in the three proceedings arose out of a common substratum of facts. If they did, the court then had to consider whether, despite this commonality, there was not one single "matter" in relation to the claims brought under the FW Act and the AHRC Act. Further, the court needed to ascertain whether a federal claim intended to be made in the Supreme Court proceeding formed part of the "matter" arising under the FW Act and the AHRC Act, or if it constituted a distinct federal matter. The court also had to decide if this federal claim made in the Supreme Court was associated with the matters under the FW Act and AHRC Act, thereby conferring jurisdiction on the Federal Circuit Court under s 18 of the *Federal Circuit Court of Australia Act 1999* (Cth). Finally, the court had to determine how the non-federal claims and the federal claim made in the Supreme Court proceeding were to be treated in relation to the matters arising under the FW Act and the AHRC Act.

Judge Manousaridis found that all three claims arose out of a common substratum of facts. However, the federal claim intended to be made in the Supreme Court was not considered part of the matters arising under the FW Act or the AHRC Act, but rather a distinct federal matter. The court held that it had jurisdiction in relation to all the claims. The non-federal claims made in the Supreme Court proceeding were treated as part of the matter arising under the AHRC Act, and the federal claim made in the Supreme Court proceeding was treated as associated with the matter arising under the AHRC Act.

Orders