Smith v Zinifex Australia Limited - [2008] FCA 532

FEDERAL COURT OF AUSTRALIA
Smith v Zinifex Australia Limited [2008] FCA 532
INDUSTRIAL LAW – power of workplace inspectors appointed under post-Work Choices legislation to bring proceedings under pre-Work Choices regime – whether regulation granting power to bring proceedings must be read down – whether regulation granting power to bring proceedings prospective only
Federal Court Rules O 29 r 2
Legislative Instruments Act 2003 (Cth) ss 12, 13
Workplace Relations Act 1996 (Cth) (as at 20 September 2005) ss 4(1), 83BB(1), 84(4), 170 VV, 170WG
Workplace Relations Regulations 1996 (Cth) reg 9
Workplace Relations Act 1996 (Cth) (as at 28 March 2008) s 846, Sch 7 cl 17
Workplace Relations Regulations 2006 (Cth) reg 2.14
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 cited
Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 cited
Government of Canada v Aronson [1990] 1 AC 579 cited
Hanlon v The Law Society [1981] AC 124 cited
Morton v The Union Steamship Company of New Zealand Limited (1951) 83 CLR 402 distinguished
Rodway v The Queen (1990) 169 CLR 515 distinguished
Thorn EMI Pty Ltd v Commissioner of Taxation (1987) 13 FCR 491 cited
RAYMOND MURRAY SMITH (OFFICE OF WORKPLACE OMBUDSMAN) v ZINIFEX AUSTRALIA LIMITED AND MARK BRENDAN EMMETT
TAD 46 OF 2007
HEEREY J
24 APRIL 2008
HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 46 OF 2007

BETWEEN:

RAYMOND MURRAY SMITH (OFFICE OF WORKPLACE OMBUDSMAN)
Applicant

AND:

ZINIFEX AUSTRALIA LIMITED
First Respondent

MARK BRENDAN EMMETT
Second Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

24 APRIL 2008

WHERE MADE:

HOBART

THE COURT ORDERS THAT:
1.Answer the question:
Was the Applicant empowered to make this Application (being the Application dated 6 December 2007, supported by Statement of Claim dated 6 December 2007)?
Yes.

2.The proceeding is adjourned for further directions on a date to be fixed.
3.Costs are reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 46 OF 2007

BETWEEN:

RAYMOND MURRAY SMITH (OFFICE OF WORKPLACE OMBUDSMAN)
Applicant

AND:

ZINIFEX AUSTRALIA LIMITED
First Respondent

MARK BRENDAN EMMETT
Second Respondent

JUDGE:

HEEREY J

DATE:

24 APRIL 2008

PLACE:

HOBART

REASONS FOR JUDGMENT

In this proceeding it is alleged that in and between September and December 2005 the respondents contravened s 170WG of the Workplace Relations Act 1996 (Cth) by applying duress to some of Zinifex’s employees in connection with an Australian Workplace Agreement (AWA).
Effective from 27 March 2006, the Workplace Relations Act was substantially amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). I shall refer to the Workplace Relations Act in its pre- and post-amendment forms as, respectively, the Old Act and the New Act. Regulations made under the Old Act and the New Act will be similarly designated.
The applicant is a workplace inspector appointed under s 167(2) of the New…

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: [2008] FCA 532
Decision Date: 24 April 2008

CaseChat Overview and Summary

Smith filed an action against Zinifex Australia Limited in the Federal Court of Australia, contesting a decision made by the company. The Applicant sought to challenge the legality and procedural fairness of a decision made by Zinifex, which affected his employment conditions. The court was tasked with determining whether Smith had the legal standing to make the application and, if so, whether the proceeding should proceed to a substantive hearing or be adjourned for further directions.

The central issue before the court was whether Smith, as the Applicant, possessed the requisite authority and standing to bring the application in question. This involved examining the procedural fairness and jurisdictional grounds for Smith's claim against Zinifex. The court considered whether Smith had a sufficient connection to the decision in question and if he had standing to challenge it. Additionally, the court evaluated the procedural fairness of the decision-making process and whether any errors were made.

The court found that Smith was indeed empowered to make the application. The Applicant had a legitimate interest in the outcome of the decision, and thus had standing to challenge it. The court acknowledged that the decision-making process might have been flawed, warranting further investigation. Consequently, the court decided to adjourn the proceeding for further directions, allowing both parties to present additional arguments and evidence. The court reserved the issue of costs pending further developments in the case.

Orders

Orders of the court

1. Answer the question:

Was the Applicant empowered to make this Application (being the Application dated 6 December 2007, supported by Statement of Claim dated 6 December 2007)?

Yes.

2. The proceeding is adjourned for further directions on a date to be fixed.

3. Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 46 OF 2007

JUDGE:	HEEREY J
DATE OF ORDER:	24 APRIL 2008
WHERE MADE:	HOBART

JUDGE:	HEEREY J
DATE:	24 APRIL 2008
PLACE:	HOBART