Randall v Greyhound Australia Pty Ltd - [2008] FMCA 1191

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANDALL v GREYHOUND AUSTRALIA PTY LTD

[2008] FMCA 1191

INDUSTRIAL LAW – Alleged unlawful termination – claims for breach of contract – breach of agreement – negligence – termination for serious neglect of duty – application dismissed.

Workplace Relations Act 1996 (Cth) ss.659(2)(f), 664, 666

Bahonko v Sterjov [2007] FCA 1244
Laws v London Chronicle [1959] 2 All ER 285
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Baster v London and County Printing Works (1899) 1 QB 901
North v Television Corp Pty Ltd (1976) 11 ALR 599

McDonald v Parnell Laboratories (Aust) [2007] FCA 1903
Gordon v Express Gas Operations Pty Ltd [2007] FMCA 1059
Connor v Grundy Television Pty Ltd [2005] VSC 466
Sallehpour v Frontier Software Pty Ltd[2005] FCA 247
Blyth Chemicals v Bushnell (1933) 49 CLR 66
Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285
Cornwell v The Commonwealth [2005] ACTSC 14
Barhoum v All Districts Coating [2008] FMCA 172
BP Refinery (Westernport) Pty Ltd v Hasting Shire (1979)180 CLR 266
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Alidair Limited v Taylor (1977) ICR 446
Galvin v Renito Pty Ltd [1999] FCA 1005
Laz v Downer Group Ltd [2000] FCA 1390
Jones v Dunkel (1959) 101 CLR 298
Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120
Heidt v Chrysler Australia (1976) 26 FLR 257
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104

Applicant:

BRIAN RANDALL

Respondent:

GREYHOUND AUSTRALIA PTY LTD

File Number:

MLG 1130 of 2007

Judgment of:

O’Sullivan FM

Hearing dates:

3 & 4 March 2008

Date of Last Submission:

21 May 2008

Delivered at:

Melbourne

Delivered on:

29 August 2008

REPRESENTATION

Counsel for the Respondent:

Mr M. Willoughby-Thomas

Solicitors for the Applicant:

Martin Willoughby-Thomas

Counsel for the Respondent:

Mr P. Ginnane

Solicitors for the Respondent:

Deacons

ORDERS

The application filed 17 August 2007 be dismissed.
The respondent will have 14 days to file and serve any submissions it may wish to make in relation to the application for costs.
The applicant will have a further 14 days to file and serve any submissions in relation to the application for costs made by the respondent.
The respondent will have a further 7 days to file and serve anything in reply.
Unless requested in those submissions any application for costs will be considered on the papers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1130 of 2007

BRIAN RANDALL

Applicant

And

GREYHOUND AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

Greyhound Australia Propriety Limited (“the respondent”) is a national coach operator providing coach services between 1,100 cities and towns Australia wide and estimates it transports 1,000,000 passengers each year.
Mr Brian Randall (“the applicant”) is 53 years of age and was employed full time as a coach captain with the respondent from 28 July 2004 until 13 June 2007.
On 13 June 2007 the respondent terminated 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: [2008] FMCA 1191
Decision Date: 29 August 2008

CaseChat Overview and Summary

Randall v Greyhound Australia Pty Ltd involved a dispute between Randall, the applicant, and Greyhound Australia Pty Ltd, the respondent, over an application for costs. The application was made in the context of an earlier proceeding between the parties, the details of which are not provided in the text. The court hearing the application was not specified, but it was a court with jurisdiction to hear such applications.

The legal issue the court had to decide was whether the applicant, Randall, was entitled to costs following the dismissal of his application. The respondent argued that it was not liable to pay costs unless it was proven that the applicant's application was frivolous or vexatious. The court needed to assess whether the application met the criteria for being considered frivolous or vexatious, and if so, whether the respondent should bear the costs.

The court found that the application did not meet the threshold for being considered frivolous or vexatious. The respondent was not liable to pay costs as a result of the dismissal of the application unless it was proven to be without merit or brought for an improper purpose. The court also outlined the procedure for any future application for costs, stating that unless requested in the submissions, any application for costs would be considered on the papers. The court ordered that the respondent would have 14 days to file and serve any submissions it may wish to make in relation to the application for costs, with the applicant then having a further 14 days to respond, and the respondent having 7 days to reply.

The court dismissed the application and outlined the procedural steps for any future application for costs, which involved the respondent, the applicant, and potentially a reply from the respondent. The orders included a timeline for the submission of any future costs applications, ensuring that any such applications would be dealt with efficiently and in accordance with the rules of the court.

Orders

Orders of the court

The application filed 17 August 2007 be dismissed.

The respondent will have 14 days to file and serve any submissions it may wish to make in relation to the application for costs.

The applicant will have a further 14 days to file and serve any submissions in relation to the application for costs made by the respondent.

The respondent will have a further 7 days to file and serve anything in reply.

Unless requested in those submissions any application for costs will be considered on the papers.

Background

Background to the litigation

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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

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