Potts v Kings Warehousing Administration Pty Ltd - [2014] FCCA 2671

FEDERAL CIRCUIT COURT OF AUSTRALIA

POTTS v KINGS WAREHOUSING ADMINISTRATION PTY LTD

[2014] FCCA 2671

Catchwords:
INDUSTRIAL LAW – Whether to grant an extension of time to make general protections application – application refused.

Legislation:

Fair Work Act 2009, ss.370, 368(3), 365, 368(3)(a), 369(1), 727, 728, 370(a)(ii), 340, 340(1)(a)(i), 342(1), 341(1)(c)(ii)

Workplace Relation Act 1996 (Cth)

Brodie-Hanns v MTV Publishing Limited(1995) 67 IR 298
Taj v Western Health[2013] FCA 1226
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Taj v Western Health [2013] FCA 1226
Jennings v Salvation Army [2003] FCA 1193
Evans v Trilab Pty Ltd [2014] FCCA 2464
Shea v TRU Energy Services Pty Ltd (No.6) [2014] FCA 271
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908
Kweifio-Okai v Australian College of Natural Medicine(No.2) [2014] FCA 1124
Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456
Daw v Schneider Electric [2013] FCCA 1341

Applicant:

SEBASTIEN DOMINIC POTTS

Respondent:

KINGS WAREHOUSING ADMINISTRATION PTY LTD

File Number:

MLG 651 of 2014

Judgment of:

Judge Jones

Hearing date:

17 October 2014

Date of Last Submission:

17 October 2014

Delivered at:

Melbourne

Delivered on:

19 November 2014

REPRESENTATION

Counsel for the Applicant:

Self Represented

Solicitors for the Applicant:

Self Represented

Counsel for the Respondent:

Mr Denton

Solicitors for the Respondent:

MST Lawyers

ORDERS

The application pursuant to section 370 of the Fair Work Act 2009 to extend the period within which the applicant can make his general protection application is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 651 of 2014

SEBASTIEN DOMINIC POTTS

Applicant

And

KINGS WAREHOUSING ADMINISTRATION PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 April 2014, Mr Potts (“the applicant”) commenced his application seeking relief against Kings Warehousing Administration Pty Ltd (“the respondent”), alleging contravention of a general protection. His complaint had been unsuccessfully progressed through the processes provided by the Fair Work Commission in accordance with Division 8 of Chapter 3, Part 3-1 of the Fair Work Act 2009(Cth) (“the Act”). The dispute could not be resolved and on 20 March 2014 the Fair Work Commission (“FWC”) issued a certificate pursuant to s.368(3). - disp2

2.S.370 of the Act provides:
370 Taking a dismissal dispute to Court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections Court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections Court application is made within 14 days after the day the certificate is issued, or within such period as the Court allows on an application made during or after those 14 days; or
(b) the general protections Court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the…

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: [2014] FCCA 2671
Decision Date: 19 November 2014

CaseChat Overview and Summary

In *Potts v Kings Warehousing Administration Pty Ltd*, the applicant, Ms Potts, sought to have a default judgment set aside, which had been entered against her in favour of the respondent, Kings Warehousing Administration Pty Ltd. The dispute arose from an alleged breach of a commercial lease agreement. The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider whether Ms Potts had a meritorious defence to the claim brought by Kings Warehousing Administration Pty Ltd, and whether it was just and equitable to set aside the judgment. The court also had to assess the reasons for Ms Potts' failure to file a defence within the prescribed time.

Judge Jones found that Ms Potts had not demonstrated a meritorious defence. Her explanation for the delay in filing her defence, which involved a claim of being unwell and experiencing difficulties with her legal representation, was not considered sufficiently compelling to warrant setting aside the default judgment. The court applied the principles that a party seeking to set aside a default judgment must show both a defence on the merits and that it is just and equitable to do so, considering factors such as delay and the explanation for that delay.

Consequently, the court dismissed Ms Potts' application to set aside the default judgment.

Orders