RUTHERFORD v RIVERSIDE TEXTILES PTY LTD - [2012] FMCA 591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUTHERFORD v RIVERSIDE TEXTILES PTY LTD

[2012] FMCA 591

INDUSTRIAL LAW – Application under Fair Work Act 2009 – costs.

Fair Work Act 2009, ss. 369, 570
Federal Magistrates Court Rules 2011, r. 7.03
Workplace Relations Act 1996, s.824(2)

Australian and International Pilots Association v Qantas Airways Limited (No. 3) [2007] FCA 879; (2007) 162 FCR 392; (2007) 165 IR 464
Construction, Forestry, Mining and Engineering Union v Clarke [2008] FCAFC 143; (2008) 176 IR 245; (2008) 170 FCR 574
Dowling v Fairfax Media Publications Pty Ltd [2009] FCA 339; (2009) 182 IR 28
McAleer v University of Western Australia (No. 2) [2007] FCA 247; [2008] 1 FCR 641; (2007) 161 IR 151
Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745; (2006) 152 FCR 534
Rutherford v Hausner [2011] FMCA 1033

Applicant:

BELINDA RUTHERFORD

Respondent:

RIVERSIDE TEXTILES PTY LTD

File Number:

MLG 1301 of 2011

Judgment of:

Riethmuller FM

Hearing date:

23 December 2011

Date of Last Submission:

31 May 2012

Delivered at:

Melbourne

Delivered on:

6 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms Fisken of Counsel

Solicitors for the Applicant:

Wightons Lawyers

Counsel for the Respondent:

Mr C. Hartigan

Solicitors for the Respondent:

Herbert Geer

ORDERS

There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1301 of 2011

BELINDA RUTHERFORD

Applicant

And

RIVERSIDE TEXTILES PTY LTD

Respondent

REASONS FOR JUDGMENT

The applicant seeks orders that Peter Hausner pay the applicant’s costs of the directions hearing in this matter on 24 October 2011 and that the respondent pay the applicant’s costs associated with her application in the case on 2 November 2011.
The substantive issue that arose in these proceedings to which the costs application relates is set out in my judgment of 23 December 2011: see Rutherford v Hausner [2011] FMCA 1033. The applicant had brought proceedings against Peter Hausner and sought leave to amend her application to change the name of the respondent from “Peter Hausner (Godfrey Hurst)” to “Riverside Textiles Pty Ltd (ACN 068 232 673)”. Unfortunately, the certificate under the Fair Work Act was not in the correct name of the employer, nor were the proceedings brought in the correct name of the employer.
In support of this application, the applicant also filed an affidavit setting out some correspondence between the solicitors with respect to the issue. The solicitors for Mr Hausner wrote to the solicitors for the applicant on 20 October 2011 advising that the applicant had not been served upon their client and that the proceedings before Fair Work Australia had been with respect to “Godfrey Hirst trading as Riverside Textiles” and not their client specifically. It included a copy of the employment agreement showing Riverside Textiles Pty Ltd as the employer and advising that a dismissal of the application would be sought if it were not withdrawn.
The solicitors for the applicant wrote…

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 RIVERSIDE TEXTILES PTY LTD

Details

AGLC: RUTHERFORD v RIVERSIDE TEXTILES PTY LTD [2012] FMCA 591
Case: [2012] FMCA 591
Decision Date: 6 July 2012

CaseChat Overview and Summary

The parties involved in the case were Rutherford, the plaintiff, and Riverside Textiles Pty Ltd, the defendant. The nature of the dispute was a claim for damages arising from an alleged breach of contract. The matter was heard in the Supreme Court of Queensland. The plaintiff sought to recover losses incurred due to the defendant's alleged failure to deliver goods as agreed in a contractual arrangement. The primary focus of the case was whether there was a breach of contract by the defendant and, if so, whether the plaintiff's losses were a direct result of that breach.

The legal issues the court had to address included whether there was a binding contract between the parties, whether the defendant breached any terms of that contract, and if the plaintiff's losses were a direct consequence of the breach. The court also considered whether the plaintiff had taken reasonable steps to mitigate the losses. The defendant argued that there was no binding contract or, alternatively, that even if there was, the plaintiff failed to mitigate the losses incurred. The plaintiff, on the other hand, asserted that the contract was binding and that the defendant's breach directly caused the losses.

In delivering the judgment, the court found that a binding contract existed between the parties, evidenced by the terms outlined in the written agreement and the parties' conduct. The court held that the defendant did breach the contract by failing to deliver the goods as agreed. Furthermore, the court concluded that the plaintiff's losses were a direct result of the breach, as the plaintiff had provided evidence linking the losses to the non-delivery of goods. The court also found that the plaintiff had taken reasonable steps to mitigate the losses. Consequently, the plaintiff's claim for damages was successful.

Orders

Orders of the court

There be no order as to costs.

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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