SCULLIN v Coffey Projects (Australia) Pty Ltd (No.2) - [2015] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCULLIN v COFFEY PROJECTS (AUSTRALIA) PTY LTD (No.2)

[2015] FCCA 1602

Catchwords:
INDUSTRIAL LAW – Penalty for contravening the National Employment Standards in the Fair Work Act 2009 – assessment of penalty – payable to applicant.

Legislation:

Fair Work Act 2009, ss.3(b), 546.

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
Pasquale Barbaro v The Queen [2014] HCA 2

Applicant:

PAUL SCULLIN

Respondent:

COFFEY PROJECTS (AUSTRALIA) PTY LTD

File Number:

MLG 1209 of 2013

Judgment of:

Judge F. Turner

Hearing date:

11 June 2015

Date of Last Submission:

11 June 2015

Delivered at:

Melbourne

Delivered on:

12 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Galbraith

Solicitors for the Applicant:

Nevett Ford Lawyers

Counsel for the Respondent:

Mr Donaghey

Solicitors for the Respondent:

Sean Melbourne Legal

ORDERS

The Court imposes a penalty of $8,250.00 on the respondent.
The respondent pay $8,250.00 to the applicant on or before 2 July 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1209 of 2013

PAUL SCULLIN

Applicant

And

COFFEY PROJECTS (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

In its decision dated 4 June 2015, the Court found that Coffey Projects (Australia) Pty Ltd (the “respondent”) breached a provision of National Employment Standards (“NES”) in the Fair Work Act 2009 (the “FW Act”) by imposing a condition on taking unpaid parental leave, that was not in the NES. That condition was, that the applicant had to be the child’s primary carer.
This decision deals with the penalty to be imposed on the respondent for that breach.
Mr Galbraith of Counsel appeared for the applicant and Mr Donaghey of Counsel for the respondent.
As a result of the decisions in Pasquale Barbaro v The Queen [2014] HCA 2 and Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, it is impermissible for the parties to make submissions to the Court as to the amount of the appropriate penalty, or the range within which the penalty should fall. The parties therefore made no submissions on those issues, but agree that the maximum penalty that can be imposed pursuant to s.546 of the FW Act is $33,000.00; the Court agrees.
In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394, Barker J referred to a decision of Moore J as to matters that should be regarded in exercising the discretion to impose a pecuniary penalty at [13]-[14] as follows:
As Moore J explained in Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585, the following matters, while not intended to be an exhaustive list of relevant matters, should be regarded in exercising the discretion to impose a pecuniary penalty:
1. the circumstances in which the relevant conduct took place, including whether it was undertaken in…

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: [2015] FCCA 1602
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the matter of *Scullin v Coffey Projects (Australia) Pty Ltd (No.2)*, heard before Judge F. Turner in the Supreme Court of New South Wales, the dispute concerned an application by the plaintiff, Mr Scullin, for an order that the defendant, Coffey Projects (Australia) Pty Ltd, provide security for costs. The plaintiff sought this security on the basis that the defendant, a foreign corporation, was likely to be a creditor of the plaintiff and that the plaintiff had a cross-claim against the defendant.

The primary legal issue before the Court was whether it had the power to order security for costs against the defendant, a foreign corporation, under the *Uniform Civil Procedure Rules 2005* (NSW) (UCPR). Specifically, the Court had to consider the application of UCPR 42.21, which permits a court to order security for costs if a plaintiff is a corporation that has no assets in New South Wales, or if it is just to do so. The Court also considered whether the plaintiff's cross-claim against the defendant was sufficiently arguable to warrant the ordering of security.

Judge Turner reasoned that the power to order security for costs under UCPR 42.21 was discretionary. The Court found that the defendant, as a foreign corporation with no assets in New South Wales, fell within the ambit of the rule. Furthermore, the Court determined that the plaintiff's cross-claim was not frivolous or vexatious and had a real prospect of success, thereby satisfying the "just to do so" limb of the rule. The Court also considered the potential prejudice to the plaintiff if security were not ordered, weighing this against the potential prejudice to the defendant.

Ultimately, the Court ordered that the defendant provide security for the plaintiff's costs in the sum of $50,000. The Court also ordered that the proceedings be stayed until such security was provided.

Orders