PRACTICE AND PROCEDURE - whether leave to appeal from declaratory order of Federal Circuit Court of Australia required - declaration of contravention of s 340(1) of the Fair Work Act 2009 (Cth) by adverse action following respondent's complaint - whether declaration in the nature of final or interlocutory relief - whether leave to appeal should be granted - application of principles for leave to appeal - leave granted
PRACTICE AND PROCEDURE - application for extension of time to seek leave to appeal - application filed outside time period for application for leave to appeal but within time period for filing a notice of appeal - application of principles for extension of time - genuine question as to whether leave to appeal required - where delay explained - extension granted
[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
AGLC
Power Ledger Pty Ltd v Griffiths [2021] FCA 624
Case
[2021] FCA 624
Decision Date
CaseChat Overview and Summary
Power Ledger Pty Ltd sought leave to appeal a decision of the Federal Circuit Court of Australia that declared it contravened s 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against Griffiths following a complaint he made. The application for leave to appeal was made outside the time period for such an application but within the period for filing a notice of appeal. The court had to decide whether leave to appeal was required, and if so, whether an extension of time to apply for leave should be granted. Additionally, the court had to determine on what grounds leave to appeal should be granted.
The court found that a genuine question existed as to whether leave to appeal was required, considering the nature of the declaration as either final or interlocutory relief. It considered the principles for granting leave to appeal and concluded that leave should be granted on certain grounds. The court also found that the delay in applying for leave to appeal was explained, and therefore, it granted an extension of time for the application.
In addition to the procedural issues, the court also addressed a hearsay objection related to the evidence. It made rulings on these objections as part of its considerations.
The court ordered that the time for filing an application for leave to appeal be extended to 11 January 2021. It granted leave to appeal on specified grounds, excluding one, as detailed in the proposed notice of appeal. The applicant was required to file and serve any notice of appeal by no later than 16 June 2021.
Orders
Orders of the court
1. The time for filing an application for leave to appeal from the declaratory order of the Federal Circuit Court of Australia made 30 October 2020 be extended to 11 January 2021.
2. The applicant have leave to appeal on grounds 1 to 10 inclusive (excluding ground 5) as set out in the proposed notice of appeal annexed to the application for an extension of time filed 11 January 2021, as particularised (with respect to ground 10) in the applicant's written reply submissions filed on 8 April 2021.
3. The applicant is to file and serve any notice of appeal by no later than 16 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.