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…
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- Case
- [2014] FCCA 2671
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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