Stork v ABN Group - [2024] FedCFamC2G 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Stork v ABN Group [2024] FedCFamC2G 186

File number: MLG 1956 of 2023

Judgment of: JUDGE RILEY

Date of judgment: 1 March 2024

Catchwords: INDUSTRIAL LAW – Fair Work – application for an extension of time in which to file a general protections claim – application for other relief – applicant failing to appear at a directions hearing.

Legislation:
Administrative Decisions (Judicial Review) Act 1977

Fair Work Act 2009, ss.340, 343, 345, 351, 362, 368, 370, 536CA, 536D(2), 550, 557A, 557B

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r.13.06(1)(c) and (e)

Occupational Health and Safety Act 2004 (Vic), ss.78C, 78D, 130

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss.75(1)(a), 92, 93, 103(1), 104(1), 105(1), 107(1), 179, 292, 575, 581(2), 585, 601, 608

Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Meredith v Chad Group Australia Pty Ltd [2021] FCCA 415

Division Division 2 General Federal Law

Number of paragraphs: 59

Date of last submissions: 2 February 2024

Place: Melbourne

Advocate for the Applicant: No appearance

Solicitor for the Applicant: None

Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Ingmar Taylor SC

Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: WA Workplace Law Pty Ltd

Solicitor Advocate for the Tenth Respondent: Jessica Voglis

Solicitors for the Tenth Respondent Gallagher Bassett

Counsel for the Eleventh Respondent: Stephanie Cheligoy

Solicitors for the Eleventh Respondent Maddocks

Counsel for the Twelfth Respondent: Siobhan Kelly

Solicitors for the Twelfth Respondent Victorian Government Solicitor’s Office

Solicitor Advocate for the Thirteenth Respondent: Matthew Jorgensen

Solicitors for the Thirteenth Respondent Australian Government Solicitor

ORDERS

MLG 1956 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PERRY STORK

Applicant

AND:
ABN GROUP (VIC) (COMPANY)
(ACN 130 382 188)

First Respondent

AIDEN HOOPER
Second Respondent

DALE ALCOCK
Third Respondent

(and others named in the schedule)

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

1 MARCH 2024

THE COURT ORDERS THAT:
1.Pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application filed on 16 November 2023 be dismissed for non-appearance.

Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
JUDGE RILEY:

Before the court is an application that is somewhat confusing but seems to be primarily seeking:
(a)an extension of time under s.370(a)(ii) of the Fair Work Act 2009 (“the FWA”) in which to file an application alleging breaches of the…

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: [2024] FedCFamC2G 186
Decision Date: 1 March 2024

CaseChat Overview and Summary

Stork was the applicant, and ABN Group was the respondent in a proceeding within the Federal Circuit and Family Court of Australia. The nature of the dispute was an application by the applicant to extend the time in which to file a general protections claim, as well as an application for other relief. The applicant also sought to have the respondent serve a defence to the general protections claim. The matter was heard in the Court’s Division 2, which has general federal law jurisdiction.

The legal issues before the Court were whether the applicant’s failure to attend a directions hearing was sufficient to dismiss the application, and whether the application ought to be dismissed on the merits. The Court was also required to consider whether there were any other grounds for dismissal.

The Court held that the applicant’s failure to attend the directions hearing was a sufficient ground for dismissing the application. The Court noted that the applicant was required to attend the directions hearing and that this was a mandatory requirement. The Court held that the applicant’s failure to attend the directions hearing was a serious matter that warranted dismissal of the application. The Court also held that the application ought to be dismissed on the merits because the applicant had failed to provide any evidence to support the application for an extension of time. The Court held that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time.

The Court dismissed the application on the basis of the applicant’s non-appearance at the directions hearing and on the merits. The Court did not consider it necessary to consider any other grounds for dismissal.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application filed on 16 November 2023 be dismissed for non-appearance.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLG 1956 of 2023
Judgment of:	JUDGE RILEY
Date of judgment:	1 March 2024
Catchwords:	INDUSTRIAL LAW – Fair Work – application for an extension of time in which to file a general protections claim – application for other relief – applicant failing to appear at a directions hearing.
Legislation:	Administrative Decisions (Judicial Review) Act 1977 Fair Work Act 2009, ss.340, 343, 345, 351, 362, 368, 370, 536CA, 536D(2), 550, 557A, 557B Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r.13.06(1)(c) and (e) Occupational Health and Safety Act 2004 (Vic), ss.78C, 78D, 130 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss.75(1)(a), 92, 93, 103(1), 104(1), 105(1), 107(1), 179, 292, 575, 581(2), 585, 601, 608
Cases cited:	Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Meredith v Chad Group Australia Pty Ltd [2021] FCCA 415
Division	Division 2 General Federal Law
Number of paragraphs:	59
Date of last submissions:	2 February 2024
Place:	Melbourne
Advocate for the Applicant:	No appearance
Solicitor for the Applicant:	None
Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents:	Ingmar Taylor SC
Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents:	WA Workplace Law Pty Ltd
Solicitor Advocate for the Tenth Respondent:	Jessica Voglis
Solicitors for the Tenth Respondent	Gallagher Bassett
Counsel for the Eleventh Respondent:	Stephanie Cheligoy
Solicitors for the Eleventh Respondent	Maddocks
Counsel for the Twelfth Respondent:	Siobhan Kelly
Solicitors for the Twelfth Respondent	Victorian Government Solicitor’s Office
Solicitor Advocate for the Thirteenth Respondent:	Matthew Jorgensen
Solicitors for the Thirteenth Respondent	Australian Government Solicitor

MLG 1956 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PERRY STORK Applicant
AND:	ABN GROUP (VIC) (COMPANY) (ACN 130 382 188) First Respondent AIDEN HOOPER Second Respondent DALE ALCOCK Third Respondent (and others named in the schedule)

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	1 MARCH 2024