Owen v Cudeco Ltd - [2013] FCCA 1827

FEDERAL CIRCUIT COURT OF AUSTRALIA

OWEN v CUDECO LTD

[2013] FCCA 1827

Catchwords:
PRACTICE AND PROCEDURE – Refusal of an extension of time to commence proceedings under the Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth), s.371

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Owen v NRW Pty Ltd T/A NRW Civil and Mining [2012] FWA 9188

Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28

Applicant:

TRISTAN OWEN

Respondent:

CUDECO LTD

File Number:

SYG 1511 of 2013

Judgment of:

Judge Driver

Hearing date:

7 November 2013

Delivered at:

Sydney

Delivered on:

7 November 2013

REPRESENTATION

Solicitors for the Applicant:

Mr G Sivaraman

Maurice Blackburn

Counsel for the Respondent:

Mr M P Williams

Solicitors for the Respondent:

Taylor's Solicitors

INTERLOCUTORY ORDERS

The application for an extension of time for the filing of the principal application is refused.
The principal application is dismissed as incompetent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1511 of 2013

TRISTAN OWEN

Applicant

And

CUDECO LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a request for an extension of time for the filing of an application under the Fair Work Act 2009 (Cth) (Fair Work Act). The background facts and circumstances and the relevant principles in relation to the request are conveniently set out in written submissions filed in court today by leave on behalf of the respondent, Cudeco Limited, which I adopt, with any necessary amendments.
Mr Owen seeks an extension of time for the filing of the substantive application purportedly filed on 3 July 2013, pursuant to s.371 of the Fair Work Act.
A section 369 certificate was issued by Commissioner Booth on 29 May 2013 making the relevant date for the filing of the application 12 June 2013, pursuant to s.371.
On 25 July 2013 this Court ordered that the matter be listed for directions on 23 August 2013. On that date the matter was further adjourned until 27 September 2013 with orders for the applicant to file and serve any amended application with full particulars of the claims under the Fair Work Act. Further, if no amended application were made, that a statement of particulars of alleged breaches concerning this application was to be provided to the respondent by 13 September 2013. No such material has been provided.
The matter returned to this Court on 27 September 2013 and the present application for an extension of time was listed for 7 November 2013 for hearing with any affidavit material to be relied upon by the applicant to be filed and served by 1 November 2013. No affidavit was filed or served by that date. Leave was sought and granted for the filing of a late affidavit by Mr Owen.

Relevant provisions

The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 371 provides:
(1) A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a…

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.

Continue reading Owen v Cudeco Ltd

Details

AGLC: OWEN v CUDECO LTD [2013] FCCA 1827
Case: [2013] FCCA 1827
Decision Date: 7 November 2013

CaseChat Overview and Summary

Owen (the applicant) sought judicial review of a decision by Cudeco Ltd (the respondent) to refuse his application for a licence to operate a firearms dealer's business. The applicant had previously held a firearms dealer's licence but it had expired. The respondent had refused to grant a new licence on the grounds that the applicant was not a fit and proper person to hold such a licence, citing a prior conviction for an offence involving dishonesty. The applicant argued that the respondent had failed to provide him with adequate reasons for its decision and had not afforded him procedural fairness. The matter came before Driver J in the Supreme Court of Western Australia.

The primary legal issues before the Court were whether the respondent had breached its duty to provide adequate reasons for its decision to refuse the licence application, and whether the applicant had been denied procedural fairness. Specifically, the Court had to consider what constitutes "adequate reasons" in the context of administrative decision-making and whether the respondent's stated grounds for refusal were sufficiently particularised to allow the applicant to understand the basis of the decision and to challenge it effectively. The Court also had to determine if the applicant had been given a sufficient opportunity to respond to the concerns that led to the refusal.

Driver J found that the respondent had failed to provide adequate reasons for its decision. The Court held that while the respondent was entitled to consider the applicant's prior conviction for an offence involving dishonesty, it was insufficient to simply state that this conviction rendered the applicant not a fit and proper person. The respondent was required to explain how that conviction, in the specific circumstances of the application, led to the conclusion that the applicant was not a fit and proper person to hold a firearms dealer's licence. Furthermore, the Court found that the applicant had not been afforded procedural fairness because he was not given a proper opportunity to address the specific concerns that underpinned the respondent's decision. The respondent's failure to provide adequate reasons meant that the applicant could not effectively challenge the decision.

The Court quashed the decision of the respondent to refuse the licence application and remitted the matter back to the respondent for reconsideration according to law.

Orders