FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOUSSALLI v WESTERN POWER (No.3) | [2010] FMCA 389 |
| INDUSTRIAL LAW – Alleged unlawful termination of employment – temporary absence or illness – non-membership of a trade union – filing of a complaint or participation in proceedings and recourse to competent administrative authority – political opinion, national extraction or social origin. PRACTICE AND PROCEDURE – Application for summary dismissal – principles. PRACTICE AND PROCEDURE – INDUSTRIAL LAW – Alleged unlawful termination – onus of proof. |
| Evidence Act 1995 (Cth), s.56 Federal Magistrates Act 1999 (Cth), s.17A Workplace Relations Act 1996 (Cth), ss.240, 254, 659(2), 664, 717, 718, 719 Workplace Relations Regulations 2006 (Cth), reg. 2.12.8 |
| Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145 Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88; [2006] FCA 901 CSR Viridian Ltd (formerly Pilkington Australia Ltd) v Claveria (2008) 171 FCR 554; [2008] FCAFC 177 Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120 Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490 He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 Jennings v Salvation Army (Vic) Property Trust Inc (2003) 128 IR 366; [2003] FCA 1193 Moussalli v Western Power (No. 2) [2010] FMCA 374 Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784 Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191 Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198; [2009] FMCA 1 Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457; [2005] FCA 247 Weerasinghe v Prism Grafix Pty Ltd (2009) 186 IR 330; [2009] FMCA 728 Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99 |
| Applicant: | REEF MOUSSALLI |
| Respondent: | WESTERN POWER |
| File Number: | PEG 64 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 2 June 2010 |
| Date of Last Submission: | 2 June 2010 |
| Delivered at: | Perth |
| Delivered on: | 4 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Heathcote initially; later no appearance. |
| Counsel for the Respondent: | Ms E. M. Hartley and Ms P. Brooke |
| Solicitors for the Respondent: | Freehills |
ORDERS
That the respondent’s application in a case filed 17 May 2010, as amended by the Court’s order of 26 May 2010, be upheld.
That the applicant’s application, as amended and filed 26 June 2009, be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 64 of 2009
| REEF MOUSSALLI |
Applicant
And
| WESTERN POWER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application in a case by the respondent, Western Power, to summarily dismiss the application of the applicant, Mr Moussalli, on the basis that the application has no reasonable prospect of success.
On 26 May 2010 the Court dismissed an application in a case by Mr Moussalli for an extension of time in which to comply with earlier orders of the Court. The application, if granted, would have had the effect of adjourning the substantive hearing of this…
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- Case
- [2010] FMCA 389
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding whether to uphold the respondent's application, which sought to have the applicant's amended application dismissed. The court also needed to determine whether to dismiss the applicant's amended application. The central issue was whether the respondent's application met the criteria for dismissal, and whether the applicant's application was valid.
The court found that the respondent's application met the criteria for dismissal, as it was deemed unnecessary and an abuse of process. The court ruled that the respondent's application was an attempt to circumvent the proper legal process and was therefore inappropriate. The court also found that the applicant's amended application was valid and should not be dismissed. The court determined that the respondent's application was an abuse of the legal system, and as such, the respondent's application was dismissed, and the applicant's amended application was upheld.
Orders
Orders of the court
1.
That the respondent’s application in a case filed 17 May 2010, as amended by the Court’s order of 26 May 2010, be upheld.
2.
That the applicant’s application, as amended and filed 26 June 2009, be dismissed.
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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