Slondia Nominees Pty Ltd v Moore

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FEDERAL COURT OF AUSTRALIA

Slondia Nominees Pty Ltd v Moore [2013] FCA 351

Citation: Slondia Nominees Pty Ltd v Moore [2013] FCA 351
Appeal from: Moore v Slondia Nominees Pty Ltd [2012] FMCA 273
Parties: SLONDIA NOMINEES PTY LTD v SANDRA MOORE
File number: SAD 290 of 2012
Judge: MANSFIELD J
Date of judgment: 18 April 2013
Catchwords:

JUDGMENTS AND ORDERS – reasons for judgment – additional reasons given after delivery of initial reasons – whether the additional reasons were, in the circumstances, permissible – whether it is permissible to have regard to the additional reasons in appeal from the initial judgment

EVIDENCE – where Federal Magistrate made a finding contrary to the evidence of witnesses – where Federal Magistrate made no adverse finding as to those witnesses’ credit – whether Federal Magistrate gave adequate reasons for his conclusion – whether Federal Magistrate considered all the evidence

INDUSTRIAL LAW – whether quantum and distribution of pecuniary penalty for contravention of a civil penalty provision was appropriate

Legislation:

Fair Work Act 2009 (Cth) ss 340, 360, 361, 539, 545, 546, 570, 611
Cases cited:

Moore v Slondia Nominees Pty Ltd [2012] FMCA 273
Moore v Slondia Nominees Pty Ltd (No 2) [2012] FMCA 989
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14
Board of Bendigo Regional Institute of Technical Education v Barclay [2012] HCA 32
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437
Hy-Tec Industries Pty Ltd v Constable (No 3) (2006) 233 ALR 323
Bailey v Marinoff (1971) 125 CLR 529
Bar-Mordecai v Rotman [2000] NSWCA 123
DJL v The Central Authority (2000) 201 CLR 226
Bromley v Bromley [1965] P 111
Todorovic v Moussa (2001) 53 NSWLR 463
Lam v Beesley (1992) 7 WAR 88
Palmer v Clarke (1989) 19 NSWLR 158
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union (2008) 177 IR 243
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181
Date of hearing: 7 February 2013
Place: Adelaide
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 86
Counsel for the Appellant: R Manuel
Solicitor for the Appellant: Fox Tucker
Counsel for the Respondent: T Bourne
Solicitor for the Respondent: Bourne Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

SAD 290 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SLONDIA NOMINEES PTY LTD
Appellant
AND:

SANDRA MOORE
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

18 APRIL 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made by the Federal Magistrates Court on 31 October 2012 are set aside.

3.The…

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Details
Case
[2013] FCA 351
Decision Date

CaseChat Overview and Summary

In the case of Slondia Nominees Pty Ltd v Moore, the parties were Slondia Nominees Pty Ltd, a retail business, and Ms Moore, a former employee. The dispute centred on whether Slondia had contravened the Fair Work Act 2009 by terminating Ms Moore's employment due to her exercising a workplace right by lodging a claim for underpaid wages. The matter was initially heard in the Federal Magistrates Court, with Ms Moore subsequently appealing the decision to the Federal Court. The appeal involved several issues, including whether the Federal Magistrate's additional reasons for judgment, provided after the initial reasons were delivered, were permissible and could be considered in the appeal. Additionally, the court examined whether the Federal Magistrate adequately considered the evidence and provided sufficient reasons for his conclusion regarding the contravention of the Fair Work Act.

The Federal Court addressed the issue of whether the additional reasons provided by the Federal Magistrate were permissible and could be considered in the appeal. The court found that while there is a strong public interest in the finality of litigation, the principles governing the alteration of judgments do not directly apply to this situation. The court referred to cases where ex tempore reasons for judgment were altered in the final version or expanded upon an orally delivered reserved decision. The court concluded that the Federal Magistrate's additional reasons could be considered in the appeal.

Furthermore, the court examined whether the Federal Magistrate adequately considered the evidence and provided sufficient reasons for his conclusion. The court found that the Federal Magistrate did not make an adverse finding as to the credit of the witnesses and did not adequately explain why he preferred the evidence of some witnesses over others. The court held that the Federal Magistrate did not consider all the evidence and did not provide adequate reasons for his conclusion.

The Federal Court allowed the appeal, set aside the orders made by the Federal Magistrates Court, and remitted the matter to the Federal Magistrates Court to be differently constituted for rehearing. The court made no order on the cross-appeal and did not order costs for the appeal or the cross-appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made by the Federal Magistrates Court on 31 October 2012 are set aside.

3. The matter is remitted to the Federal Magistrates Court to be differently constituted for rehearing.

4. There is no order on the cross-appeal.

5. There be no order as to the costs of the appeal or the cross-appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Moore cross-appeals from the penalty judgment. She says the penalty imposed should have been $30,000, and that the whole of the pecuniary penalty should have been paid to her.The evidence Some of the evidence was not contested. It can be noted shortly. In South Australia, Slondia has two outlets in the West Lakes Shopping Centre and one at the Tea Tree Plaza Shopping Centre. Ms Moore worked almost entirely at the West Lakes outlets. The second outlet at West Lakes opened only in August 2010. In April 2010, Ms Moore had complained that her hourly rate should have been $22.50 rather than the $18 she was being paid. She was then paid $22.50 per hour until her employment was terminated. There was no adjudication that that was the correct rate; Slondia simply agreed to pay it. The underpaid wages claim was brought on 24 November 2010, and represents the difference between those two hourly rates between June 2009 and April 2010. The underpaid wages claim was ultimately accepted, and Ms Moore has been paid the amount in dispute. That claim was served on Slondia on about 1 December 2010, so Slondia had been aware of it for almost a month by 29 December 2010. The only issue was whether Ms Moore’s employment was terminated because of, or for reasons one of which was, the underpaid wages claim: s 360 of the FW Act. Section 361 of the FW Act provides:(1)If:(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or for a particular intent; and(b)taking that action for that reason or with that intent would constitute a contravention of this Part;it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person provides otherwise. Consequently, Slondia had to prove that the underpaid wages claim was not the reason, or one of the reasons, why it terminated Ms Moore’s employment. It was not in dispute that the termination of employment was adverse action, or that the underpaid wages claim was the exercise of a workplace right. Clearly the onus of proof to be discharged is on the balance of probabilities: see per Lander J in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 at [195] (Barclay FC). To discharge the onus of proof, Slondia called three witnesses: its Managing Director Mr Mercanti; its South Australian State Manager Mr Davies; and its Victorian State Manager Mr Zaharijevski, who had in 2010 been visiting Adelaide on a regular basis to assist Mr Davies in his role due to his experience. The business operated on the basis that its individual retail outlets operated as separate units, and each outlet obtained its supplies from a “wholesale” unit within the business. Consequently, the various outlets collectively built up significant trade debts to the wholesale supply division. Mr Davies’ evidence was that the three Adelaide stores were under financial pressure in the latter part of 2010. Mr Mercanti had been limiting the stock they could acquire from the “head office” to reduce costs. In consultation with Mr Zaharijevski he had decided in late December 2010 to reduce the hours of all his full-time staff and to cease the employment of Ms Moore. He said he did so because she was the only part-time employee engaged as a stitcher and shoe repairer. His decision was motivated only by the need to cut back for financial reasons; the underpaid wages claim played no part in it. He said in about late December 2010 he had employed a casual employee at the Tea Tree Plaza store, but she was employed for her sales skills and was not a stitcher.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

His Honour accepted that the exercise of that power should not be a proxy for “an underlying intention to award costs”, as s 570 directs when costs may separately be awarded. As the penalty provided for both general and specific deterrence; and for the significant impact of the contravention on Ms Moore, in his discretion the Federal Magistrate ordered one half of the penalty be paid to the Commonwealth and one half to Ms Moore.Consideration The first issue which arose was whether the penalty judgment, and in particular what was said at [39] and quoted above at [33], could be taken into account when considering whether there was error in the conclusion in the contravention judgment. The Orders page of the contravention judgment indicates that the Federal Magistrate had completed his reasons for his conclusion. It reads:UPON NOTING that the Court is satisfied that the respondent had contravened the civil remedy provisions referred to in s 539 of the Fair Work Act 2009 in the manner specified in the Application filed on 24 February 2011and then an order is made adjourning the matter to a date to be fixed to determine the pecuniary penalty and compensation claims. There is, of course, authority to support the proposition that there is a strong public interest in the finality of litigation so that a losing party should not be permitted to re-open a case because better evidence about some matter in dispute is available and might have changed the result: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437. In Hy-Tec Industries Pty Ltd v Constable (No 3) (2006) 233 ALR 323 Raphael FM considered whether he had the power to remove from a published judgment, by a corrigendum, some findings adverse to a solicitor for one of the parties after the solicitor had complained of them because the Federal Magistrate accepted that they may unfairly reflect on the ability of that solicitor. The Federal Magistrate concluded that he did not have the power to do so. Clearly, that circumstance is different from the present, because the final orders had been drawn up and sealed. The principles laid out in Bailey v Marinoff (1971) 125 CLR 529 at 530 and 539, and in DJL v The Central Authority (2000) 201 CLR 226 at [38], and applied by Raphael FM do not directly apply to the present question. Raphael FM also referred to decisions in which either ex tempore reasons for judgment had been altered in the revised final version (Bar-Mordecai v Rotman [2000] NSWCA 123 and Bromley v Bromley [1965] P 111) or had been altered by adding to an orally delivered reserved decision: Todorovic v Moussa (2001) 53 NSWLR 463 (Todorovic). Clearly, the decision in Todorovic is closest to the present circumstances, although the description of when a change or expansion of orally delivered reasons is permitted in the three cases is not significantly different. In Todorovic, the trial judge had preferred the evidence of one witness over that of another. One ground of appeal was that that conclusion was inconsistent with incontrovertible evidence and with other findings. Another complained of the adequacy of the reasons. Another complained that the trial judge, after the oral reasons delivered in a reserved judgment, had added a finding that he did not accept the witness as an accurate witness whereas he had simply described that evidence in his reserved judgment delivered orally.