Moussalli v Western Power (No.2) - [2010] FMCA 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOUSSALLI v WESTERN POWER (No.2)

[2010] FMCA 374

PRACTICE AND PROCEDURE – No case to answer application – application should have properly been made for summary dismissal – leave granted to amend application.

PRACTICE AND PROCEDURE – Application for an adjournment – principles for the Court to take into account when granting an adjournment – application for adjournment dismissed.

Federal Magistrates Act 1999 (Cth), ss.3, 42
Federal Magistrates Court Rules 2001 (Cth), r.4.05
Workplace Relations Act 1996 (Cth), s.824

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Goodall v Nationwide News Pty Limited [2007] FMCA 218
Moussalli v Western Power (2009) 185 IR 241; [2009] FMCA 720

S.E. Marantelli, The Australian Legal Dictionary (Caulfield East: Edward Arnold Australia Pty Ltd, 1984)

Applicant:

REEF MOUSSALLI

Respondent:

WESTERN POWER

File Number:

PEG 64 of 2009

Judgment of:

Lucev FM

Hearing date:

26 May 2010

Date of Last Submission:

26 May 2010

Delivered at:

Perth

Delivered on:

26 May 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mrs E. Hartley

Solicitors for the Respondent:

Freehills

ORDERS

The application in a case filed by the respondent as a no case to answer application be treated as an application for summary dismissal of the applicant’s application.
The applicant’s application in a case dated 21 May 2010 be dismissed.
At the hearing of the matter on 8-10 June 2010, leave is granted to the applicant to make an application to adduce further oral evidence, and if that application is granted the respondent will have the right to adduce oral evidence.
The summary dismissal application be listed for hearing at 2:15pm on 2 June 2010.
Service of any documents required to be filed and served on the applicant, either by prior or subsequent order of this Court, by the respondent, be deemed to have been served if sent to the applicant at his address for service by ordinary pre-paid post.
If any application is to be made to adjourn any future proceedings in this matter by the applicant on medical grounds, that application is to be supported by affidavit evidence from:
(a)the applicant’s treating General Practitioner; or
(b)a medical specialist,
and that treating General Practitioner or medical specialist must appear in person to be cross-examined on the affidavit if the respondent so requests.
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 the transcript)

In this matter Western Power has made an application in a case[1] under the Federal Magistrates Court Rules 2001 (Cth),[2] submitting that Mr Moussalli’s case ought to be dismissed on the ground that there is no case to answer. As indicated in the course of the Court’s exchange with Counsel for Western Power, the Court is of the view that a no case…

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: [2010] FMCA 374
Decision Date: 26 May 2010

CaseChat Overview and Summary

Moussalli v Western Power (No.2) involved a legal dispute between the parties where the respondent, Western Power, initially filed a no case to answer application. The Federal Circuit Court was tasked with determining the proper procedural steps and legal principles applicable to the case. The court had to decide whether the respondent's application should be treated as a no case to answer application or if it should have been made for summary dismissal. Additionally, the court needed to consider an application for an adjournment and the principles to be applied in granting such an adjournment.

The court found that the respondent's initial application should have been for summary dismissal rather than a no case to answer application. The court granted leave to the applicant to amend the application accordingly. The court also dismissed the applicant's application for an adjournment, noting that any future applications for adjournment on medical grounds would need to be supported by affidavit evidence from the applicant's treating General Practitioner or a medical specialist, who would be required to appear in person for cross-examination if requested by the respondent.

The court's decision included several orders to manage the proceedings. The respondent's application was to be treated as one for summary dismissal, and the applicant's initial application was dismissed. Further, the court granted leave to the applicant to adduce further oral evidence if their application was approved, and the respondent would then have the right to present oral evidence. The summary dismissal application was scheduled for a specific hearing date, and service of documents was to be deemed effective if sent by ordinary pre-paid post. Medical adjournment applications would need to be supported by specific evidence and would require cross-examination. Lastly, the costs of the proceedings were reserved.

In summary, the court's ruling addressed procedural missteps and set out clear guidelines for future applications, ensuring that the legal process was followed correctly and efficiently.

Orders

Orders of the court

The application in a case filed by the respondent as a no case to answer application be treated as an application for summary dismissal of the applicant’s application.

The applicant’s application in a case dated 21 May 2010 be dismissed.

At the hearing of the matter on 8-10 June 2010, leave is granted to the applicant to make an application to adduce further oral evidence, and if that application is granted the respondent will have the right to adduce oral evidence.

The summary dismissal application be listed for hearing at 2:15pm on 2 June 2010.

Service of any documents required to be filed and served on the applicant, either by prior or subsequent order of this Court, by the respondent, be deemed to have been served if sent to the applicant at his address for service by ordinary pre-paid post.

If any application is to be made to adjourn any future proceedings in this matter by the applicant on medical grounds, that application is to be supported by affidavit evidence from:

(a) the applicant’s treating General Practitioner; or

(b) a medical specialist,

and that treating General Practitioner or medical specialist must appear in person to be cross-examined on the affidavit if the respondent so requests.

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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