Moussalli v Western Power - [2009] FMCA 720

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOUSSALLI v WESTERN POWER

[2009] FMCA 720

PRACTICE AND PROCEDURE – Extension of time to file response and affidavits.

PRACTICE AND PROCEDURE – Discovery – whether discovery appropriate.

INDUSTRIAL LAW – Unlawful termination of employment.

Federal Magistrates Act 1999 (Cth)
Workplace Relations Act 1966, s.659(2)(a), (c), (e), (f)

Abrahams v Qantas Airways (2007) 210 FLR 314; [2007] FMCA 639
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559

Applicant:

REEF MOUSSALLI

Respondent:

WESTERN POWER

File Number:

PEG 64 of 2009

Judgment of:

Lucev FM

Hearing date:

17 July 2009

Date of Last Submission:

17 July 2009

Delivered at:

Perth

Delivered on:

17 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms J. Bradbury

Solicitors for the Respondent:

Freehills

ORDERS

The applicant file and serve any further amended application and any further affidavits in support of the further amended application by 4:00pm on 14 August 2009.
If the respondent seeks to have the application summarily dismissed, it file an interlocutory application and any supporting affidavit by 4:00pm on 11 September 2009.
In the alternative to Order 2, if the respondent does not file any interlocutory application for summary dismissal, the respondent file and serve a response and any supporting affidavits by 4:00pm on 11 September 2009.
No further interlocutory applications be filed by either party until after the further hearing of this matter.
The matter be otherwise adjourned to 2:15pm on 12 October 2009 for hearing of any application for summary dismissal, and if no application for summary dismissal is made, for further directions.
The costs of today be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 64 of 2009

REEF MOUSSALLI

Applicant

And

WESTERN POWER

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons edited from transcript)

On 28 May 2009 the Court made the following orders:
1. The applicant have leave to file and serve an amended application and any further affidavit material by 4:00pm on 26 June 2009.
2. The respondent file and serve a response and any supporting affidavits by 4:00pm on 10 July 2009.
3. The matter be otherwise adjourned to a directions hearing at 9:30 am on 17 July 2009.
4. Costs of today be reserved.
5. There be liberty to apply.
It is also relevant to indicate that the Court indicated to the parties at that time that they ought to confer informally over discovery but made no orders with respect to discovery. In compliance with those orders of 28 May 2009, Mr Moussalli, the applicant, filed and served an amended application and further affidavit on 26 June 2009. Mr Moussalli’s amended application and further affidavit were apparently not served until early on the following Monday morning, according to Ms Bradbury’s affidavit filed in the respondent’s application in a case, but that is a matter of no practical effect in all the circumstances.
In paragraph 115 of the affidavit filed by Mr Moussalli and sworn by him on 26 June 2009,…

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: [2009] FMCA 720
Decision Date: 17 July 2009

CaseChat Overview and Summary

The applicant, Moussalli, filed an application against Western Power in the Federal Circuit and Family Court of Australia, contesting the unlawful termination of his employment. The primary dispute centred on whether the dismissal was justified, as well as procedural matters, including the timeliness of filing responses and affidavits. The court was required to determine whether an extension of time should be granted for Moussalli to file a response and supporting affidavits, and whether the discovery process was appropriate in this context.

The court examined whether Moussalli's application for an extension of time was justified and whether it should proceed with the discovery process. In addressing these issues, the court weighed the procedural fairness and the potential merits of the substantive claims against the procedural timelines. The court found that Moussalli had not adequately demonstrated a compelling reason for the delay in filing his response and affidavits. However, recognising the importance of ensuring all relevant evidence was before the court, the judge ordered that Moussalli could file his response and affidavits by a specified date. The court also directed that the respondent could file an interlocutory application for summary dismissal or respond to the substantive claims by another specified date.

In light of the findings, the court issued several orders to manage the proceedings. Moussalli was granted a deadline to file any further amended applications and affidavits, while the respondent was directed to either file an interlocutory application for summary dismissal or respond to the substantive claims by a set date. The matter was adjourned for further hearing, with costs reserved for later determination. This decision underscores the importance of strict adherence to procedural timelines while also providing flexibility to ensure substantive justice is achieved.

Orders

Orders of the court

The applicant file and serve any further amended application and any further affidavits in support of the further amended application by 4:00pm on 14 August 2009.

If the respondent seeks to have the application summarily dismissed, it file an interlocutory application and any supporting affidavit by 4:00pm on 11 September 2009.

In the alternative to Order 2, if the respondent does not file any interlocutory application for summary dismissal, the respondent file and serve a response and any supporting affidavits by 4:00pm on 11 September 2009.

No further interlocutory applications be filed by either party until after the further hearing of this matter.

The matter be otherwise adjourned to 2:15pm on 12 October 2009 for hearing of any application for summary dismissal, and if no application for summary dismissal is made, for further directions.

The costs of today be reserved.

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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