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 |
| 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…
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- Case
- [2019] FCCA 2728
- Decision Date
CaseChat Overview and Summary
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.
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