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Pine v Seelite Windows & Doors Pty Ltd

Pine v Seelite Windows & Doors Pty Ltd

Case [2005] FCA 500 29 April 2005

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FEDERAL COURT OF AUSTRALIA
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500
WORKPLACE RELATIONS – payments of wages during industrial action – contravention inadvertent – no utility in imposing fine
Workplace Relations Act 1996 (Cth) ss 187AA, 187AD(1)
Barton v The Queen (1980) 147 CLR 75 cited
Director of Public Prosecutions v Humphrys [1977] AC 1 cited
Mills v Cooper [1967] 2 QB 459 cited
R v Jewitt [1985] 2 SCR 128 cited
Regina v Sang [1980] AC 402 cited
R Daw, “The ‘Public Interest’ Criterion in the Decision to Prosecute” (1989) 53 Journal of Criminal Law 485
J Vorenberg, “Decent Restraint of Prosecutorial Power” 94 Harvard Law Review 1521 (1981)
LISETTE PINE v SEELITE WINDOWS & DOORS PTY LTD
VID 1497 of 2004
FINKELSTEIN J
29 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1497 of 2004

BETWEEN:

LISETTE PINE
Applicant

AND:

SEELITE WINDOWS & DOORS PTY LTD
Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

29 APRIL 2005

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT Seelite Windows & Doors Pty Ltd contravened s 187AA of the Workplace Relations Act 1996 (Cth) when it paid wages to Graeme Bell, Martin Van Der Weele, Jay Hutchinson and Darrell Brownbill for the periods on 5 and 6 August 2003 when they had engaged in industrial action.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1497 of 2004

BETWEEN:

LISETTE PINE
Applicant

AND:

SEELITE WINDOWS & DOORS PTY LTD
Respondent

JUDGE:

FINKELSTEIN J

DATE:

29 APRIL 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

A judge has no role to play in deciding what action should, and what action should not, be prosecuted: Regina v Sang [1980] AC 402, 454. In addition, a judge does not have a discretion whether or not to hear a case which has been brought to court: Director of Public Prosecutions v Humphrys [1977] AC 1, 46 per Lord Salmon: (“[A] judge has not and should not appear to have any responsibility for the institution of proceedings; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought”). If an action has been regularly commenced in a court of competent jurisdiction, the judge to whom the case has been assigned must dispose of it according to its merits. On the other hand, a judge does have the right, which he can exercise only in limited circumstances, to stay an action whose commencement or prosecution is in abuse of the court’s processes: Mills v Cooper [1967] 2 QB 459, 467.
Contrary to popular belief, a prosecuting authority does not have to take action on every occasion that an offence has been committed. Indeed it has never been doubted that the power of the Attorney General or Director of Public Prosecutions…

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 Pine v Seelite Windows & Doors Pty Ltd

Details

AGLC: Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500
Case: [2005] FCA 500
Decision Date: 29 APRIL 2005

CaseChat Overview and Summary

In Pine v Seelite Windows & Doors Pty Ltd, Lisette Pine, an applicant, sought a declaration that Seelite Windows & Doors Pty Ltd had contravened the Workplace Relations Act 1996 (Cth). Specifically, the applicant alleged that the respondent had contravened s 187AA of the Act by paying wages to employees who were engaged in industrial action. The case was heard by Justice Finkelstein in the Federal Court of Australia. The legal issues before the court were whether the respondent had contravened s 187AA and whether a penalty should be imposed on the respondent for that contravention.

Justice Finkelstein found that the respondent had indeed contravened s 187AA of the Workplace Relations Act by paying wages to employees who were engaged in industrial action. However, the judge concluded that imposing a penalty on the respondent would be inappropriate. The contravention was inadvertent, there was no harm caused to anyone, and the amount of wages involved was insignificant. The judge also noted that the contravention was unlikely to occur again, given the steps taken by the respondent to ensure compliance with the Act in the future. Accordingly, the court declined to impose a penalty, but did declare that there had been a contravention of the Act.

Orders