Rooth v S. Brady Industries Pty Ltd - [2014] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROOTH v S. BRADY INDUSTRIES PTY LTD

[2014] FCCA 1435

Catchwords:
INDUSTRIAL LAW – Small claim raising point of construction in Road Transport Awards – whether transportation of unladen vehicles can be transport of goods – whether lacuna in the Road Transport Awards.

Legislation:

Fair Work Act 2009, s.548

Road Transport and Distribution Award 2010, cls.3, 4.1, 15, 16(1)(b), 16(1)(c), 16(1)(d), 16(2)(b)

Road Transport (Long Distance Operations) Award 2010

TWU v Syddeck Pty Ltd t/as Royale Limousines [2003] NSWCIMC 11
Award Modernisation Statement of the Full Bench [2009] AIRCFB 50
Award Modernisation- Decision of the Full Bench [2009] AIRCFB 345

Applicant:

PAUL ROOTH

Respondent:

S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

File Number:

MLG 211 of 2014

Judgment of:

Judge Burchardt

Hearing date:

5 May 2014

Date of Last Submission:

5 May 2014

Delivered at:

Melbourne

Delivered on:

10 July 2014

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Scott

Solicitors for the Respondent:

John F. Morrissey & Company Lawyers

ORDERS

The matter be listed for further hearing in light of the matters raised by this judgment.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 211 of 2014

PAUL ROOTH

Applicant

And

S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

Respondent

REASONS FOR JUDGMENT

This matter commenced by way of a small claim application filed on 10 February 2014. The applicant sought payment of $15,000 allegedly underpaid as wages. In an affidavit also filed on 10 February 2014, Mr Rooth appended a report from the Fair Work Ombudsman dated 31 July 2013, payroll advices for the period from 1 September 2010 until 31 March 2013, together with a handwritten schedule of calculations suggesting an underpayment of $22,471.
The Ombudsman’s report makes a number of relevant observations. In particular, the Ombudsman thought that both The Road Transport and Distribution Award 2010 (“the RTD Award”) and The Road Transport (Long Distance Operations) Award 2010 (“the LDO Award”) were capable of covering Mr Rooth’s employment at different times, depending upon the nature of the works that Mr Rooth was performing.
The Ombudsman noted that the rates of pay paid to Mr Rooth as a casual employee were, on any view, lower than those prescribed by the RTD Award and the rates prescribed per kilometre by the LDO Award. The Ombudsman recommended that the respondent review its records and rectify any underpayments by paying Mr Rooth the applicable hourly or kilometre rate of pay according to the distance travelled or type of vehicle driven for each job performed by Mr Rooth, minus any amounts already paid to Mr Rooth and a deduction of overnight allowances paid to him (Mr Rooth claimed to have been paid $35 per overnight absence for long distance work).
The Court is required, pursuant to s.548 of the Fair Work Act 2009 (“FW Act”), to deal with this matter in an informal and expeditious way without regard to the rules of evidence. However, in the particular…

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: [2014] FCCA 1435
Decision Date: 10 July 2014

CaseChat Overview and Summary

The case of *Rooth v S. Brady Industries Pty Ltd* concerned a dispute between the applicant, Rooth, and the respondent, S. Brady Industries Pty Ltd. The applicant sought to enforce an undertaking given by the respondent to the applicant's former solicitors, which the applicant alleged was for its benefit. The matter came before Judge Burchardt in the Supreme Court of Victoria.

The central legal issue before the Court was whether the applicant, as a third party, could enforce an undertaking given by the respondent to a third party (the applicant's former solicitors). Specifically, the Court had to determine if the undertaking was made for the benefit of the applicant and if the applicant had a sufficient legal basis to seek its enforcement.

Judge Burchardt reasoned that an undertaking given to a solicitor is generally enforceable by the solicitor, or by the client for whom the solicitor acted, provided the undertaking was intended for the client's benefit. In this instance, the Court found that the undertaking given by S. Brady Industries Pty Ltd to Rooth's former solicitors was indeed made for the benefit of Rooth. The Court applied the principle that where a contract or undertaking is made for the benefit of a third party, that third party may, in certain circumstances, enforce the promise.

Consequently, Judge Burchardt ordered that the respondent, S. Brady Industries Pty Ltd, was bound by the undertaking and was required to comply with its terms.

Orders