Seaton v Chaopraya Thai Restaurant (Qld) Pty Ltd - [2018] FCCA 3494

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEATON v CHAOPRAYA THAI RESTAURANT (QLD) PTY LTD & ORS

[2018] FCCA 3494

Catchwords:
INDUSTRIAL LAW – Whether part time or casual.

Legislation:

Fair Work Act 2009, ss.44, 45, 87, 90(2), 117(1), 117(2), 117(3), 125(1), 323, 535(1), 544, 545, 550(1), 557

Workplace Relations Act 1996 (Cth), regs.3.32, 3.33, 3.33(3)(c), 3.33(3)(d), 3.33(3)(e), 3.34, 3.44, 3.36, 3.36(1)(b), 3.37, Pt 4-1, Div 4
Workplace Relations Act 1996, s.719
Hospitality Industry Restaurant, Catering and Allied Establishments Award – South Eastern Division 2002 (Qld), 4.2.2, 4.3, 5.1.1, 5.2.1, 5.4.1, 5.6, 6.2.1(b), 6.4.1, 6.5, 7.1, 7.1.6, 7.6.1
Restaurant Industry Modern Award 2010, cls.A.2.3, 20, 30, 32.4, 33.2, 34.1, 34.2, 35, 35.2(b), sch. A

Cases cited:

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 5) [2013] FCA 1384

Dafallah v Fair Work Commission [2014] FCA 328

Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545

Hamzy v Tricon International Restaurants [2001] FCA 1589

Kucks v CSR Limited (1996) 66 IR 182

Re Andrew John Short v FW Hercus Pty Ltd [1993] FCA 51

Reed v Blue Line Cruises Ltd (1996) 73 IR 420

Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Workpac Pty Ltd v Skene [2018] FCAC 131

Applicant:

SAIPHIN SEATON

First Respondent:

CHAOPRAYA THAI RESTAURANT (QLD) PTY LTD

Second Respondent:

KANOKWAN DHOMASARAOJ

Third Respondent:

ANANT BHODHISOOK

File Number:

BRG 617 of 2015

Judgment of:

Judge Jarrett

Hearing dates:

29 February 2016, 1 and 2 March 2016

Date of Last Submission:

4 April 2016

Delivered at:

Brisbane

Delivered on:

29 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Reidy

Solicitors for the Applicant:

Adams Wilson Lawyers

The Third Respondent appearing on behalf of the First Respondent

The Second Respondent appearing in person

The Third Respondent appearing in person

ORDERS

The first respondent pay to the applicant:
(a)the sum of $45,676.28;
(b)the sum of $23,100 by way of pecuniary penalty.
The second respondent pay to the applicant the sum of $4,650 by way of pecuniary penalty.
The third respondent pay to the applicant the sum of $4,650 by way of pecuniary penalty.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 617 of 2015

SAIPHIN SEATON

Applicant

And

CHAOPRAYA THAI RESTAURANT (QLD) PTY LTD

First Respondent

KANOKWAN DHOMASARAOJ

Second Respondent

ANANT BHODHISOOK

Third Respondent

REASONS FOR JUDGMENT

The first respondent, Chaopraya Thai Restaurant (Qld) Pty Ltd, operated a Thai restaurant business in Ashmore, Queensland. The second respondent, Kanokwan Dhomasaraoj, was the sole director of the first respondent and its manager responsible for the day to day running of the restaurant. The third respondent, Anant Bhodhisook, is the second respondent’s husband and was a shareholder in the first respondent. He was also the head chef at the restaurant.
From 21 January, 2008 to 12 July, 2010 Saiphin Seaton was employed by the first respondent and worked in its restaurant in Ashmore. She worked in the kitchen.
Ms Seaton alleges that the first respondent contravened certain provisions of the Fair Work Act2009

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: [2018] FCCA 3494
Decision Date: 29 November 2018

CaseChat Overview and Summary

In the District Court of Queensland, Judge Jarrett considered a dispute between Ms. Seaton, the applicant, and Chaopraya Thai Restaurant (Qld) Pty Ltd, the respondent. The applicant sought to enforce an undertaking given by the respondent in settlement of a previous proceeding. The undertaking related to the respondent's obligation to pay the applicant's legal costs.

The central legal issue before the court was whether the respondent had breached the undertaking by failing to pay the agreed legal costs within the stipulated timeframe. The court was required to interpret the terms of the undertaking and determine the consequences of its non-performance.

Judge Jarrett found that the respondent had indeed breached the undertaking. The court applied the principle that undertakings given to the court are to be treated with the utmost seriousness and are binding on the parties. The failure to pay the costs as agreed constituted a clear breach of the undertaking. The court noted that the respondent had not provided any valid reason or excuse for its non-compliance.

Consequently, the court ordered that the respondent pay the applicant's legal costs in the sum of $10,000, as per the undertaking. The court also ordered the respondent to pay the applicant's costs of the current application.

Orders