Smith v Landmark Products Pty Ltd

FEDERAL COURT OF AUSTRALIA

Smith v Landmark Products Pty Ltd [2018] FCA 88

File number:

QUD 737 of 2017

Judge:

LOGAN J

Date of judgment:

9 February 2018

Catchwords:

PRACTICE AND PROCEDURE – transfer of proceeding to Federal Circuit Court – s 32AB Federal Court of Australia Act 1976 – relevant considerations – whether Federal Circuit Court has sufficient resources – use of alternative dispute resolution - transferred

Legislation:

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth), s 32AB

Migration Act 1958 (Cth)

Date of hearing:

9 February 2018

Date of last submissions:

10 January 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

14

Solicitor for the Applicant

Susan Moriarty and Associates

Solicitor for the Respondent

MST Lawyers

ORDERS

QUD 737 of 2017

BETWEEN:

SHANE SMITH

Applicant

AND:

LANDMARK PRODUCTS PTY LTD

Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	9 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The applicant file and serve a Statement of Claim by 4.00pm on 9 March 2018.

2.By 4.00pm on 23 March 2017 the respondents file and serve a Defence to the Statement of Claim.

3.That the applicant file and serve any Reply to the Defence to the Statement of Claim within fourteen (14) days of service of the Defence.

4.Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) and r 28.02 of the Federal Court Rules 2011 (Cth), the matter be referred to mediation to be conducted by a Registrar of this Court, with such mediation to occur after the close of pleadings on such a date as a Registrar may appoint after consulting with parties. The Court costs of that mediation are in the first instance to be borne by the parties.

5.In the event that matter does not resolve at mediation, the proceeding is by this order transferred to the Federal Circuit Court.

6.Liberty to apply on three (3) days’ notice.

7.Costs be reserved.

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

REASONS FOR JUDGMENT
(Revised From Transcript)

LOGAN J:

1. Mr Shane Smith, who is the applicant, was from 2013, employed by Landmark Products Pty Ltd (Landmark Products), as its national marketing manager.  His claim is that, thereafter, he had the misfortune to suffer from leukaemia and, as a sequel, from a stroke.  The claim is that, collectively, these conditions resulted in his suffering of disability.  His further claim, which is made under the Fair Work Act 2009 (Cth) (Fair Work Act), is that he attempted to enter into a flexible working arrangement, with the respondent Landmark Products Pty Ltd, for a period, as a result of the disability said to result from his conditions. His further claim is that Landmark Products took what the Fair Work Act terms “adverse action” against him, because he exercised a workplace right.

2. The claim is that the adverse action is to be found in Landmark Products offering to employ…