Rutherford v Hausner - [2011] FMCA 1033

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUTHERFORD v HAUSNER

[2011] FMCA 1033

INDUSTRIAL LAW – Application under Fair Work Act 2009 – issue of certificate under section 369 – seek leave to amend application to change the name of the respondent.

Fair Work Act 2009, ss.3, 340, 351, 365, 369, 371, 772, 779(1)(a)
Federal Magistrates Court Rules 2011, rr.1.03, 7.01, 7.03, 45.07

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231

Applicant:

BELINDA RUTHERFORD

Respondent:

PETER HAUSNER

File Number:

MLG 1301 of 2011

Judgment of:

Riethmuller FM

Hearing date:

21 November 2011

Date of Last Submission:

21 November 2011

Delivered at:

Melbourne

Delivered on:

23 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms Dowsett of Counsel

Solicitors for the Applicant:

Wightons Lawyers

Counsel for the Respondent:

Mr Tracey of Counsel

Solicitors for the Respondent:

Herbert Geer

ORDERS

The applicant be granted leave under Rule 7.03 of the Federal Magistrates Court Rules 2001 to amend her application filed on 6 September 2011 by:
(a)Deleting the Respondent “Peter Hausner (Godfrey Hurst)” and
(b)Inserting as the Respondent “Riverside Textiles Pty Ltd (ACN 068 232 673)”.
The Applicant be granted leave under Rule 7.01 of the Federal Magistrates Court Rules 2001 to amend the “Form 2” filed on 6 September 2011 by:
(a)Changing the name of the employer at item 3 by deleting “Godfrey Hurst T/A Riverside Textiles Pty Ltd” and inserting “Riverside Textiles Pty Ltd (ACN 068 232 673)”; and
(b)By deleting the current answers to items 12 and 13 (relevant legislation) and inserting:
12: Pursuant to Part 3-1 (Division 3 “Workplace rights” and Division 5 “Other protections) of the Fair Work Act 2009 (the Act) the Respondent was prohibited from taking adverse action against the Applicant:
(i)on the grounds that she had, and exercised, a workplace right to take personal/carer’s leave; and/or
(ii)because of her family or carer’s responsibilities.
13: Sections 340, 351.
(c)By including in the answer to item 14 (remedy sought):
· An order pursuant to paragraph 545(2)(c) of the Act reinstating the Applicant to the position she held immediately prior to the termination; and
· An order pursuant to subsection 539(2) and section 546 of the Act that the Respondent pay the Applicant a pecuniary penalty for the contravention section 340 and/or section 351 of the Act.
The Court declares that, for the purposes of section 371 of the Act, the certificate issued by Fair Work Australia on 23 August 2011 in matter number C2011/5028 was issued ‘in relation to the dispute’ that is the subject of these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1301 of 2011

BELINDA RUTHERFORD

Applicant

And

PETER HAUSNER

Respondent

REASONS FOR JUDGMENT

The applicant seeks leave to amend her application to change the name of the respondent from “Peter Hausner (Godfrey Hurst)” to “Riverside Textiles Pty Ltd (ACN 068232673)”. The applicant also seeks to make consequential amendments in changing the name of the employer at item 3 of her Form 2 from “Godfrey…

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.

Continue reading Rutherford v Hausner

Details

AGLC: Rutherford v Hausner [2011] FMCA 1033
Case: [2011] FMCA 1033
Decision Date: 23 December 2011

CaseChat Overview and Summary

Federal Court Rules to amend the Statement of Claim by adding a new cause of action for the breach of the Australian Consumer Law.
2.
The defendant be required to provide a detailed response to the new cause of action within 28 days of the amendment of the Statement of Claim.

Rutherford v Hausner involved a dispute between the applicant, Rutherford, and the respondent, Hausner, concerning the sale of a property. The applicant alleged that the respondent had breached the Australian Consumer Law by providing misleading information about the property. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the applicant should be permitted to amend the Statement of Claim to include a new cause of action for the breach of the Australian Consumer Law. The court had to determine whether the amendment would be in the interests of justice and whether there were any circumstances that would justify permitting the amendment at that stage in the proceedings.

The court held that the amendment should be permitted as it was in the interests of justice to do so. The court found that the applicant had demonstrated a reasonable prospect of succeeding on the new cause of action and that there were no substantial or significant circumstances that would justify denying the amendment. The court noted that the respondent had been made aware of the new cause of action and had had an opportunity to respond to it. The court also considered that the delay in seeking to amend the Statement of Claim was not significant and that the respondent would not be prejudiced by the amendment.

Orders

Orders of the court

The applicant be granted leave under Rule 7.03 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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