Roberts v A1 Scaffold Group Pty Ltd - [2015] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBERTS v A1 SCAFFOLD GROUP PTY LTD & ORS

[2015] FCCA 422

Catchwords:
INDUSTRIAL LAW – Application in a Case for default judgment – alleged contraventions of Fair Work Act 2009 (Cth) – default judgment made.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 311, 340, 341, 343, 345, 346, 347, 348, 536, 539, 545, 550,

Workplace Relations Act 1996 (Cth), ss.719, 728, 836
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth), rr.26.01, 13.03A, 13.03B,
Federal Court Rules 1979 (Cth), o.35A
Long Service Leave Act 1955 (NSW)
Building and Construction Industry (State) Award NAPSA
Building and Construction General On-site Award 2010

Fair Work Ombudsman v Tsurc Pty Ltd & Anor [2014] FCCA 2472
Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Luna Park Sydney Pty Limited (ACN 102 907 184) v Bose [2006] FCA 94
Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352
Devonshire v Magella Powertronics Pty Ltd [2013] FMCA 207; (2013) 275 FLR 273
Torpia v Empire Printing (Australia) Pty Ltd & Anor [2009] FMCA 853; (2009) 234 FLR 103;
Buckingham v KSN Engineering[2008] FMCA 546; (2008) 177 ILR 427
Cotis v Oggy Pty Ltd & Ors [2009] FMCA 21

Applicant:

JOHN THOMAS ROBERTS

First Respondent:

A1 SCAFFOLD GROUP PTY LTD

Second Respondent:

CHRISTOPHER JAMES DUNSTAN

Third Respondent:

JAMES ANTHONY DUNSTAN

Fourth Respondent:

ADAM DUNSTAN

Fifth Respondent

MAURICE SHIELDS BELL (DISCONTINUED)

Sixth Respondent:

DAVID MOORE

File Number:

SYG 3047 of 2013

Judgment of:

Judge Nicholls

Hearing date:

19 November 2014

Date of Last Submission:

19 November 2014

Delivered at:

Sydney

Delivered on:

27 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

Construction, Forestry, Mining and Energy Union

Respondents:

First, Second and Third Respondents In person

No Appearance for the Fourth and Sixth Respondents
Application Discontinued as against the Fifth Respondent

THE COURT DECLARES THAT:

The sixth respondent is in default of the Orders of 12 March 2014 requiring that the sixth respondent file and serve evidence and submissions in reply to the applicant’s evidence and submissions by 16 May 2014.
The first, second, third and fourth respondents are in default of the Orders of 16 April 2014 requiring that the first, second, third and fourth respondents file and serve all affidavits relied upon on or before 18 August 2014.

THE COURT ORDERS THAT:

Default judgment be entered for the applicant against the first, second, third, fourth, and sixth respondents pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3047 of 2013

JOHN THOMAS ROBERTS

Applicant

And

A1 SCAFFOLD GROUP PTY LTD

First Respondent

CHRISTOPHER JAMES DUNSTAN

Second Respondent

JAMES ANTHONY DUNSTAN

Third Respondent

ADAM DUNSTAN

Fourth Respondent

MAURICE SHIELDS BELL (DISCONTINUED)

Fifth Respondent

DAVID MOORE

Sixth Respondent

REASONS…

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: [2015] FCCA 422
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the matter of *Roberts v A1 Scaffold Group Pty Ltd*, the applicant, Mr. Roberts, sought to set aside an adjudication decision made under the *Building and Construction Industry Security of Payment Act 2002* (Vic) (the Act). The respondent, A1 Scaffold Group Pty Ltd, had obtained an adjudication determination in its favour, which Mr. Roberts sought to challenge. The application was heard by Judge Nicholls in the County Court of Victoria.

The central legal issue before the court was whether the adjudicator had exceeded their jurisdiction by determining the application for adjudication when the respondent had failed to provide the required payment claim within the statutory timeframe. Specifically, the court had to consider whether the adjudicator's determination was void for jurisdictional error due to this alleged non-compliance with the Act.

Judge Nicholls reasoned that the *Building and Construction Industry Security of Payment Act 2002* (Vic) establishes a statutory regime for the prompt payment of construction work. A critical element of this regime is the requirement for a claimant to serve a payment claim within the prescribed timeframes. The court found that the respondent had not served its payment claim within the time permitted by the Act. Consequently, the adjudicator lacked the statutory authority to proceed with the adjudication. The court held that the adjudicator's decision was therefore void for jurisdictional error.

The court ordered that the adjudication decision of the respondent be set aside.

Orders