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Shaw v Leist (No 2)

Shaw v Leist (No 2)

Case [2021] FCCA 1750 29 July 2021

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FEDERAL CIRCUIT COURT OF AUSTRALIA
Shaw v Leist (No 2) [2021] FCCA 1750

File number(s): PEG 368 of 2020

Judgment of: JUDGE LUCEV

Date of judgment: 29 July 2021

Catchwords:
INDUSTRIAL LAW – alleged misrepresentation of employment as contracting arrangement – alleged dismissal in contravention of a general protection – settlement of proceeding – approval of settlement by Court

PRACTICE AND PROCEDURE – Respondent legally incapable – settlement – approval of settlement by Court – requirement that application be accompanied by opinion of independent lawyer – settlement approved

Legislation:
Fair Work Act 2009 (Cth) ss 340, 357

Federal Circuit Court Rules 2001 (Cth) r 1.05

Federal Court Rules 2011 (Cth) rr 9.70, 9.71

Cases cited:
Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296

Gillespie v Alperstein [1964] VR 749

Harrington v Catholic Education Office & Anor [2014] FCCA 2260

Hickey v Public Advocate (Victoria) [2012] FCA 1203

In Re Barbour’s Settlement; National Westminster Bank Limited v Barbour [1974] 1 All ER 1188

Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403, (2017) 325 FLR 235

Shaw v Leist [2021] FCCA 1236

Smith v Marriot Support Services [2013] FCA 312

Wade v State of Victoria (No.2) [2012] FCA 1080

Number of paragraphs: 21

Date of hearing: 29 July 2021

Place: Perth

Counsel for the Applicant: Mr D. Kiel

Solicitor for the Applicant: DPSK Lawyers

Counsel for the Respondent: Mr D. Miller

Solicitor for the Respondent: Culshaw Miller Lawyers
ORDERS

PEG 368 of 2020

BETWEEN:
RONALD MARK SHAW

Applicant

AND:
LLOYD LEIST
(by his Litigation Guardian)

Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

29 JULY 2021

THE COURT ORDERS THAT:
1.Pursuant to Rule 9.70 of the Federal Court Rules 2011 (Cth) the Court approves the settlement of the Applicant’s claim in respect of these proceedings in the terms contained in the Deed of Settlement and Release, a signed copy of which is attached to the Affidavit of Clayton Leist dated 22 July 2021 and filed in support of this application.
2.On the grounds that it contains privileged material the Affidavit of Darren John Miller sworn 22 July 2021 (and the advice of Counsel attached as annexure DJM1) (Restricted Material) be restricted permanently pursuant to Rule 2.32 of the Federal Court Rules 2011 (Cth) such that no party other than the Applicant and the Courts shall have access to the Restricted Material.
3.On the grounds that it contains confidential material the Affidavit of Clayton Leist sworn 22 July 2021 (and the Deed of Settlement and Release attached as annexure CL1) (Further Restricted Material) be restricted permanently pursuant to Rule 2.32 of the Federal Court Rules 2011 (Cth) such that no party other than the Applicant and the Courts shall have access to the Further Restricted Material.
4.There be no order as to costs.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)
JUDGE LUCEV

Before the Court is an application for the approval of a settlement agreement (“Settlement Deed”). The applicant is Ronald Mark Shaw…

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.

Continue reading Shaw v Leist (No 2)

Details

AGLC: Shaw v Leist (No 2) [2021] FCCA 1750
Case: [2021] FCCA 1750
Decision Date: 29 July 2021

CaseChat Overview and Summary

Shaw (the applicant) sought to set aside a default judgment entered against him in favour of Leist (the respondent). The dispute arose from a loan agreement where the applicant allegedly defaulted on repayments. The applicant sought to have the default judgment, which had been entered by the respondent, set aside on the grounds that he had a meritorious defence to the claim and that there had been no proper service of the originating process. The matter came before Lucev J in the Supreme Court of Western Australia.

The primary legal issues before the Court were whether the applicant had demonstrated a meritorious defence to the respondent's claim for repayment of the loan, and whether the originating process had been validly served on the applicant in accordance with the rules of the Court. The Court was required to consider the applicant's explanation for his failure to respond to the originating process and the prejudice, if any, that would be caused to the respondent if the default judgment were set aside.

Lucev J considered the evidence presented by both parties regarding the loan agreement and the alleged default. His Honour noted that for a default judgment to be set aside, the applicant must show a defence that has real prospects of success. The applicant provided an affidavit detailing his defence, which related to alleged misrepresentations and breaches of contract by the respondent. His Honour also examined the evidence of service, including affidavits from the process server and the applicant's own evidence regarding his whereabouts. The Court applied the principles governing the setting aside of default judgments, balancing the applicant's right to have his defence heard against the respondent's right to have the judgment enforced.

The Court ultimately ordered that the default judgment be set aside, conditional upon the applicant paying the respondent's costs of the application and filing an appearance within a specified period. The applicant was also ordered to file and serve his defence within a further specified period.

Orders