Rees v Worthington Services Pty Ltd - [2017] FCCA 2245

FEDERAL CIRCUIT COURT OF AUSTRALIA

REES v WORTHINGTON SERVICES PTY LTD & ANOR

[2017] FCCA 2245

Catchwords:
INDUSTRIAL LAW – General protections claim alleging adverse action by former employer.

PRACTICE AND PROCEDURE – Application by employer for leave to file a cross-claim out of time – consideration of discretionary factors.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 352, 570

Federal Circuit Court Rules 2001 (Cth), rr.1.05, 1.06, 28.04
Federal Court Rules 2011 (Cth), rr.15.04, 15.05, 15.06, 16.02, 28.04

Cases cited:

Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCCA 2206

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Austral Dutch Kaolin Pty Ltd v Hanjin P&C Co Ltd (No.2) [2011] FCA 1241
CFMEU v Director of the Fair Work Building Industry Inspectorate (No.2) (2013) 209 FCR 464; [2013] FCAFC 25
Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59
Re Wakim; Ex parte McNally (1999) 198 CLR 511; [199] HCA 27
St George Bank Ltd v MJK Pty Ltd [1999] FCA 1752
Trade Practices Commission v Allied Mills Industries Pty Ltd & Ors (No.2) (1980) 33 ALR 127
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281

Applicant:

JOEL REES

First Respondent:

WORTHINGTON SERVICES PTY LTD

Second Respondent:

BRAD WORTHINGTON

File Number:

SYG 1087 of 2016

Judgment of:

Judge Barnes

Hearing date:

27 July 2017

Delivered at:

Sydney

Delivered on:

15 September 2017

REPRESENTATION

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Applicant:

Mr Kane

Solicitors for the Respondents:

Yates Beaggi Lawyers

Counsel for the Respondents:

Mr Martin

ORDERS

The First Respondent’s Application in a Case filed on 10 May 2017 be refused.
Any further application by the First Respondent for leave to file a cross-claim be filed within 21 days of today’s date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1087 of 2016

JOEL REES

Applicant

And

WORTHINGTON SERVICES PTY LTD

First Respondent

BRAD WORTHINGTON

Second Respondent

REASONS FOR JUDGMENT

On 3 May 2016 the Applicant, Mr Rees, commenced proceedings in this court against his former employer, Worthington Services Pty Ltd (Worthington BMW) and against Mr Worthington under the general protections provisions of the Fair Work Act 2009 (Cth) (the Act). He alleged contraventions of ss.340 and 352 of the Act and seeks declarations, compensation and pecuniary penalties. He filed a statement of claim on 10 June 2016. The Respondents filed a Response and a Defence on 21 September 2016.
On 10 May 2017 Worthington BMW filed an Application in a Case seeking leave to file a cross-claim in the form annexed. In support of such application Worthington BMW relied on an affidavit of Mr Worthington of 18 April 2017 and an affidavit of Tamara Rabadi (a solicitor employed by its solicitors) sworn 13 July 2017.
Mr Rees opposed the grant of leave. He relied on an affidavit of his solicitor, Simon Obee, affirmed 16 June 2017.
Leave to file a cross-claim is necessary because the cross-claim was not included in Worthington BMW’s Response or…

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: [2017] FCCA 2245
Decision Date: 15 September 2017

CaseChat Overview and Summary

Rees (the applicant) brought a general protections claim against Worthington Services Pty Ltd (the respondent), alleging that the respondent had taken adverse action against him. The respondent sought leave to file a cross-claim out of time. The matter came before Judge Barnes in the Federal Court of Australia.

The primary legal issue before the Court was whether to grant the respondent leave to file its cross-claim, which was sought after the expiry of the relevant time limit. This required the Court to consider the discretionary factors relevant to such an application, balancing the prejudice to the applicant against the respondent's reasons for the delay and the merits of the proposed cross-claim.

Judge Barnes considered the established principles governing applications for leave to file out of time, including the length of the delay, the reasons for the delay, the applicant's knowledge of the proposed claim, the merits of the proposed claim, and the potential prejudice to the parties. The Court found that the respondent had not provided a satisfactory explanation for the significant delay in filing the cross-claim and that granting leave would cause substantial prejudice to the applicant.

Consequently, the Court dismissed the respondent's application for leave to file the cross-claim out of time.

Orders