Saad v Ada Evans Chambers Pty Ltd - [2019] FCCA 1101

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAAD v ADA EVANS CHAMBERS PTY LTD & ANOR

[2019] FCCA 1101

Catchwords:
INDUSTRIAL LAW – Submissions on the quantum of compensation payable for contravening s.45 of the Fair Work Act2009 (Cth) found in the judgment of Saad (No 1) – application for compensation for economic loss and non-economic loss pursuant to s.545 of the Fair Work Act 2009 (Cth) – claims for compensation for economic loss and non-economic loss not accepted – sum of damages in compensation refused.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 545

Legal Services Award 2010, cl.8

Cases cited:

Saad v Ada Evans Chambers Pty Ltd & Anor [2018] FCCA 1832

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

Australian Licenced Aircraft Engineers Association v International Aviations

Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011)

63 AILR 101-330; (2011) 205 IR 392

Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275

Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; (1990)

49 ALJR 350; (1990) 92 ALR 545; (1990) Aust Torts Reports 81-022

Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee)

[2016] FCA 430; (2016) 259 IR 47

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82;

(2014) 223 FCR 334; (2014) 312 ALR 285; (2014) 244 IR 277

Applicant:

PATRYCIA SAAD

First Respondent:

ADA EVANS CHAMBERS PTY LTD ACN 065 856 260

Second Respondent:

MICHAEL JOHN MAXWELL

File Number:

SYG 820 of 2014

Judgment of:

Judge Nicholls

Hearing date:

9 July 2018

Date of Last Submission:

15 March 2019

Delivered at:

Sydney

Delivered on:

29 April 2019

REPRESENTATION

Solicitors for the Applicant:

Segelov Taylor Lawyers

Legal Representative for the Applicant:

Mr D. Taylor

Counsel for the Respondents:

Mr A. Britt

ORDERS

The application for compensation pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 820 of 2014

PATRYCIA SAAD

Applicant

And

ADA EVANS CHAMBERS PTY LTD ACN 065 856 260

First Respondent

MICHAEL JOHN MAXWELL

Second Respondent

REASONS FOR JUDGMENT

In Saad v Ada Evans Chambers Pty Ltd & Anor [2018] FCCA 1832 (“Saad (No 1)”) the Court made the following declarations (at [256]):
“a. The first respondent breached s.45 of the FWA by contravening cl.8 of the Award.
b. The second respondent is taken to have breached s.45 of the FWA through a contravention of cl.8 of the Award, pursuant to s.550 of the FWA.”

As a consequence, the Court found as follows:
“257. In this light, it is appropriate that the respondents pay to Ms Saad compensation in respect of the contravention of the Award. As was submitted by Ms Saad, determination of appropriate compensation, and any penalties, are matters to be determined separately. I will give the parties the opportunity to make submissions on compensation, and, if pressed, hear the parties on penalties.”

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: [2019] FCCA 1101
Decision Date: 29 April 2019

CaseChat Overview and Summary

In *Saad v Ada Evans Chambers Pty Ltd*, the Federal Circuit and Family Court of Australia was asked to determine the quantum of compensation payable to the applicant, Mr Saad, for contraventions of section 45 of the *Fair Work Act 2009* (Cth). The applicant sought compensation for both economic and non-economic loss pursuant to section 545 of the Act.

The central legal issue before the Court was whether the applicant had established a claim for economic or non-economic loss arising from the contraventions found in a prior judgment, *Saad (No 1)*. The Court was required to assess the evidence presented by the applicant to support these claims and determine the appropriate amount of compensation, if any, to be awarded.

Judge Nicholls found that the applicant had not adduced sufficient evidence to establish either economic or non-economic loss. Consequently, the Court refused to award any damages in compensation to the applicant.

Orders