Quincolli Pty Ltd v Fair Work Ombudsman

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FEDERAL COURT OF AUSTRALIA

Quincolli Pty Ltd v Fair Work Ombudsman [2013] FCA 321

Citation: Quincolli Pty Ltd v Fair Work Ombudsman [2013] FCA 321
Appeal from: Fair Work Ombudsman v Quincolli Pty Ltd & Anor [2013] FMCA 17
Parties: QUINCOLLI PTY LTD ACN 003 371 097 and JUDITH MADGE POTTER v FAIR WORK OMBUDSMAN
File number: NSD 249 of 2013
Judge: YATES J
Date of judgment: 11 April 2013
Catchwords: PRACTICE AND PROCEDURE – stay pending an appeal – stay granted on conditions
Legislation: Fair Work Act 2009 (Cth)
Federal Court Rules 2011
Workplace Relations Act 1996 (Cth)
Date of hearing: 5 April 2013
Place: Sydney
Division: GENERAL DIVISION
Number of paragraphs: 25
Counsel for the Appellants: Mr R D McCrudden
Counsel for the Respondent: Ms C Howell
Solicitor for the Respondent: Bartier Perry

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 249 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

QUINCOLLI PTY LTD ACN 003 371 097
First Appellant

JUDITH MADGE POTTER
Second Appellant

AND:

FAIR WORK OMBUDSMAN
Respondent

JUDGE:

YATES J

DATE OF ORDER:

11 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Orders 1 to 39 inclusive (in respect of the first appellant) and orders 40 to 45 inclusive (in respect of the second appellant) made by the Federal Magistrates Court of Australia in proceeding no SYG1898 of 2010 on 18 February 2013 be stayed pending the final determination of the appellants’ appeal, on condition that the first appellant pays into Court the sum of $20,762 on or before 19 April 2013. 

2.Within 3 days of the sum being paid into Court, the Registrar notify each party in writing that the sum has been received.

3.The stay take effect on and from the date that the said sum is paid into Court.

4.Subject to further or other order, the said sum be paid into the Litigants’ Fund pursuant to r 2.42(1)(b) of the Federal Court Rules 2011.

Note:  Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 249 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

QUINCOLLI PTY LTD ACN 003 371 097
First Appellant

JUDITH MADGE POTTER
Second Appellant

AND:

FAIR WORK OMBUDSMAN
Respondent

JUDGE:

YATES J

DATE:

11 APRIL 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 18 February 2013, the Federal Magistrates Court of Australia (the Federal Magistrates Court) made orders that the first appellant, Quincolli Pty Limited, pay certain identified persons various sums which, in aggregate, total $193,419.36, representing underpayments of wages and other entitlements under an industrial instrument known as the Clerical NAPSA.  The effect of the orders is that these payments are to be made by 19 April 2013.  The Federal Magistrates Court also found that the first appellant and the second appellant, Judith Madge Potter, had contravened the Workplace Relations Act 1996 (Cth)…

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Details
Case
[2013] FCA 321
Decision Date

CaseChat Overview and Summary

In the case of Quincolli Pty Ltd v Fair Work Ombudsman, the appellants sought a stay of enforcement of certain orders made by the Federal Magistrates Court of Australia in relation to their liability for unpaid employee entitlements. The dispute centred on the enforcement of payments to employees at the Nowra Call Centre and the associated penalty orders. The matter was before the Court of Appeal, where the respondent, the Fair Work Ombudsman, argued against the granting of a stay.

The central legal issue before the court was whether the orders made by the Federal Magistrates Court should be stayed pending the outcome of the appellants' appeal. The court had to balance the interests of the parties, including the financial implications for the appellants and the employees' entitlement to timely payment of their owed wages. The court also had to consider the conditions under which a stay should be granted, if at all.

The court concluded that a stay should be granted on the condition that the first appellant paid $20,762 into Court by a specified date. The court reasoned that while a stay would delay the payment of entitlements, the financial position of the appellant made it unlikely that the employees would receive their owed payments in any event. The court also considered that if the appellants made the payments and subsequently succeeded in their appeal, it would be difficult to obtain repayment of the sums in question. The court decided that ordering the funds to be paid into Court was the better course, reflecting the appellant's uncertain prospects of success in the appeal. The penalty orders were also stayed on the same condition, as the outcome of the severity appeals appeared to hinge on the appeal concerning the first appellant's liability to pay its former employees.

The orders made by the court included a stay of the enforcement of orders 1 to 39 (in respect of the first appellant) and orders 40 to 45 (in respect of the second appellant), on the condition that the first appellant paid $20,762 into Court by a specified date. The court also directed that the Registrar notify each party once the sum was received and that the stay would take effect from the date of payment. The sum was to be paid into the Litigants’ Fund in accordance with the Federal Court Rules 2011.

Orders

Orders of the court

1. Orders 1 to 39 inclusive (in respect of the first appellant) and orders 40 to 45 inclusive (in respect of the second appellant) made by the Federal Magistrates Court of Australia in proceeding no SYG1898 of 2010 on 18 February 2013 be stayed pending the final determination of the appellants’ appeal, on condition that the first appellant pays into Court the sum of $20,762 on or before 19 April 2013.

2. Within 3 days of the sum being paid into Court, the Registrar notify each party in writing that the sum has been received.

3. The stay take effect on and from the date that the said sum is paid into Court.

4. Subject to further or other order, the said sum be paid into the Litigants’ Fund pursuant to r 2.42(1)(b) of the Federal Court Rules 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent submits that it faces the prospect of having to conduct an appeal and incur substantial costs, in circumstances where there is, on the appellant’s evidence, little prospect of the orders of the Federal Magistrates Court being complied with. The respondent also submits that employees at the Nowra Call Centre, who have been long out of pocket, would face still further delays in receiving any of the money they are owed, if a stay is granted. The respondent also submits that neither the first appellant’s nor the second appellant’s impecuniosity is a reason to grant a stay.CONSIDERATION Taking all these matters into account, I am persuaded that a stay of orders 1 to 33 inclusive made by the Federal Magistrates Court concerning payments to the employees at the Nowra Call Centre should be granted, but only on condition that the first appellant pays into Court the sum of $20,762 on or before 19 April 2013. The funds are to be held pending the determination of the appeal and then disbursed as the Court shall order. In coming to this determination, I have endeavoured to balance the interests of all those affected by the bringing of the appeal. I appreciate that a stay in respect of the orders concerning the employees at the Nowra Call Centre will delay the payment of their entitlements (or some part of them), as presently determined. However, it would be unrealistic for me not to take into account the parlous financial position of the first appellant and the practical likelihood that those employees will not receive a timely payment in any event. On the other hand, should the first appellant make the payments, or some part of them, and subsequently succeed in its appeal, it may be difficult for it to obtain repayment of the sums in question. Although the appellants offered an undertaking to the Court not to dispose of any assets of the first appellant pending the determination of their appeal, in my view, the better course is to order that the funds be paid into Court as a condition of granting a stay. This reflects my view that the first appellant’s prospects of success in the appeal are not strong insofar as they concern these orders. Given that, on the material before me, the outcome of the appellants’ severity appeals appears to be dependent on their appeal in relation to the first appellant’s liability to pay its former employees, it seems to me to be appropriate that the penalty orders made by the Federal Magistrates Court also be stayed on the same condition.