Sheriff v JBS Australia - [2019] FCCA 2022

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERIFF v JBS AUSTRALIA

[2019] FCCA 2022

Catchwords:
PRACTICE AND PROCEDURE – Application in a Case for reinstatement – whether explanation for failure to appear satisfactory – whether substantive application has reasonable prospects of success – application dismissed.

PRACTICE AND PROCEDURE – Application in a Case for transfer of proceedings to Brisbane registry – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 351, 382, 383

Federal Circuit Court Rules 2001 (Cth), rr.8.01, 13.03C

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Forbes v Petbarn Pty Ltd [2018] FCA 256

Applicant:

ALANZO SHERIFF

Respondent:

JBS AUSTRALIA

File Number:

SYG 799 of 2019

Judgment of:

Judge Emmett

Hearing date:

24 July 2019

Date of Last Submission:

24 July 2019

Delivered at:

Sydney

Delivered on:

24 July 2019

REPRESENTATION

Applicant:

Appeared in person

Respondent:

No appearance

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 799 of 2019

ALANZO SHERIFF

Applicant

And

JBS AUSTRALIA

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 5 June 2019, the applicant failed to attend a directions hearing before this Court. Orders were made by me on that occasion dismissing the proceedings for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
By Application in a Case filed 5 June 2019, the applicant seeks an order to reinstate a proceeding commenced by him on 2 April 2019 seeking compensation and pecuniary penalty arising out of employment with the respondent between 20 December 2018 and 25 January 2019.
The applicant was unrepresented before the Court this morning.
The respondent sent a manager to represent the company who informed the Court that he is not a director of the respondent. The Court informed the manager that without leave of the Court, the respondent must be legally represented before the Court. I did not grant such leave to the manager.
I explained to the applicant that the two most critical issues in relation to the application for reinstatement was the explanation for his failure to appear on 5 June 2019 and the prospects of success of his substantive application (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7] and [8]).
The applicant filed an affidavit on 5 June 2019 in support of his application for reinstatement in the following terms:
“I was sick this morning couldn’t get up from bed and could not walk. I was in Court this afternoon at 2:50pm on 5 June 2009 at 80 William St Sydney. I do have a cardio problem, my blood pressure was very high. When I look at the notice of filing and hearing, I though my Court time was at 1:09 pm. It was only when I get at the Registry that I realised it was the wrong notice of filing. ”
(Errors in original)
The affidavit was not accompanied by any medical evidence or other corroborative evidence. The applicant had no medical evidence to provide to the Court…

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 Sheriff v JBS Australia

Details

AGLC: Sheriff v JBS Australia [2019] FCCA 2022
Case: [2019] FCCA 2022
Decision Date: 24 July 2019

CaseChat Overview and Summary

Sheriff v JBS Australia concerned an application by the Sheriff for the reinstatement of proceedings that had been dismissed for failure to appear, and a separate application for the transfer of proceedings to the Brisbane registry. The applications were heard by Emmett J in the Federal Court of Australia.

The primary legal issues before the Court were whether the explanation provided by the Sheriff for its failure to appear at the scheduled hearing was satisfactory, and whether the substantive application had reasonable prospects of success. Additionally, the Court was required to determine whether the proceedings should be transferred to the Brisbane registry.

Emmett J dismissed the application for reinstatement, finding that the explanation for the Sheriff's non-appearance was not satisfactory. His Honour also concluded that the substantive application lacked reasonable prospects of success, which was a further ground for refusing reinstatement. The application for transfer of proceedings to the Brisbane registry was also dismissed.

Orders