Salsano v Cemento Group Pty Ltd - [2019] FCCA 2728

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALSANO v CEMENTO GROUP PTY LTD

[2019] FCCA 2728

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application to dismiss summarily proceeding in which applicant claims unpaid wages on the grounds the Federal Circuit Court of Australia has no jurisdiction to hear claim, the applicant commenced proceedings when an undischarged bankrupt, and statement of claim as pleaded discloses no reasonable cause of action – Federal Circuit Court of Australia has jurisdiction – applicant’s claim for wages is not “property” that vested in trustee in bankruptcy – statement of claim sufficiently pleads arguable causes of action – application for summary dismissal dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 116, 139J(a), 139L, 139P, 139U
Fair Work Act 2009 (Cth), ss.12, 542, 543

Cases cited:

Re Gillies; Ex parte Official Trustee v Gillies (1993) 42 FCR 571

Applicant:

BIANCO PAUL SALSANO

Respondent:

CEMENTO GROUP PTY LTD

File Number:

SYG 1853 of 2019

Judgment of:

Judge Manousaridis

Hearing date:

18 September 2019

Date of Last Submission:

18 September 2019

Delivered at:

Sydney

Delivered on:

27 September 2019

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

Ms U Zafiris of Urania Zafiris Solicitors

THE COURT ORDERS THAT

The respondent’s application to summarily dismiss the proceeding is dismissed.
E & S Projects Pty Ltd is substituted for Cemento Group Pty Ltd as the respondent.
By 25 October 2019 the applicant file and serve an affidavit made by him, all other affidavits, and other documents on which he intends to rely.

THE COURT NOTES THAT

In his affidavit the applicant is required to file and serve pursuant to order 3, the applicant should do the following:
(a)Set out the evidence the applicant will submit constitutes the agreement pursuant to which the applicant commenced the employment alleged in paragraph 5 of the statement of claim. If the agreement is said to have been made, or partly made, in a conversation or in conversations, the affidavit should identify the persons who participated in the conversation or conversations, the date or dates on which the conversation or conversations occurred, the place at which the conversation or conversations occurred, and set out in direct speech the effect of the words spoken. To the extent the applicant alleges the agreement is in writing or partly in writing, the affidavit should describe the contents of the writing and, if in the applicant’s possession, the writing should be annexed to the affidavit.
(b)Set out the evidence the applicant will submit constitutes the agreement to pay alleged in paragraph 6 of the statement of claim. If the agreement is said to have been made, or partly made, in a conversation or conversations, the affidavit should identify the persons who participated in the conversation or conversations, the date or dates on which the conversation or conversations occurred, the place at which the conversation or conversations occurred, and set out in direct speech the effect of the words spoken. To the extent the applicant alleges the agreement is in writing…

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 2728
Decision Date: 27 September 2019

CaseChat Overview and Summary

In *Salsano v Cemento Group Pty Ltd*, the applicant, Mr Salsano, commenced proceedings in the Federal Circuit Court of Australia seeking unpaid wages. The respondent, Cemento Group Pty Ltd, applied for summary dismissal of the proceedings on three grounds: that the Court lacked jurisdiction, that Mr Salsano had commenced proceedings while an undischarged bankrupt, and that the statement of claim disclosed no reasonable cause of action.

The central legal issues before Judge Manousaridis were whether the Federal Circuit Court possessed jurisdiction to hear the claim for unpaid wages, whether Mr Salsano's claim for wages constituted "property" that vested in his trustee in bankruptcy, and whether the statement of claim, as pleaded, disclosed arguable causes of action.

Judge Manousaridis determined that the Federal Circuit Court had jurisdiction to hear the claim. His Honour reasoned that a claim for unpaid wages, being a personal entitlement arising from employment, did not fall within the definition of "property" that automatically vests in a trustee in bankruptcy under the *Bankruptcy Act 1966* (Cth). Furthermore, the Court found that the statement of claim sufficiently pleaded arguable causes of action, meaning the claim was not so obviously without merit as to warrant summary dismissal. Consequently, the application for summary dismissal was dismissed.

Orders