Stuart v Toni (No 2) - [2021] FCCA 2157

FEDERAL CIRCUIT COURT OF AUSTRALIA
Stuart v Toni (No 2) [2021] FCCA 2157

File number(s): BRG 231 of 2019

Judgment of: JUDGE JARRETT

Date of judgment: 23 August 2021

Catchwords:
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – particular cases.

Legislation: Fair Work Act 2009 (Cth) ss 351, 351(1), 357, 357(1), 536, 536(1), 537(1), 550(1)

Cases cited:
CFMMEU v ABCC (2018) 264 FCR 155

Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482

Dafallah v Fair Work Commission (2014) 225 FCR 559

Fair Work Ombudsman v Hess [2021] FCCA 1883

McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) (2006) 158 IR 181

Number of paragraphs: 29

Date of last submission/s: 23 August 2021

Date of hearing: 23 August 2021

Place: Brisbane

Solicitor for the Applicant: Legal Aid Queensland

Counsel for the Respondents: Mr O’Brien

Solicitor for the Respondents: Bell Legal Group
ORDERS

BRG 231 of 2019

BETWEEN:
JESSICA STUART

Applicant

AND:
JOHN TONI

First Respondent

LUKE FARRELL

Second Respondent

BRITTANY SALYER

Third Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

23 AUGUST 2021

THE COURT ORDERS THAT:
1.Within 28 (twenty-eight) days of the date of this order, the first respondent pay a pecuniary penalty to the applicant, pursuant to s.546(1) of the Fair Work Act 2009 (Cth) in the total amount of $9,000 which is made up of:
(a)a penalty of $5,000 in respect of the first respondent’s contravention of s 351(1) of the Fair Work Act 2009 (Cth);
(b)a penalty of $3,000.00 in respect of the first respondent’s contravention of s.357(1) of the Fair Work Act 2009 (Cth); and
(c)a penalty of $1,000.00 in respect of the first respondent’s contravention of s.536(1) of the Fair Work Act 2009 (Cth).

2.Within 28 (twenty-eight) days of the date of this order, the second respondent pay a pecuniary penalty to the applicant, pursuant to s.546(1) of the Fair Work Act 2009 (Cth), being a penalty of $5,000 in respect of the contravention of s.351(1) of the Fair Work Act 2009 (Cth).
3.Within 28 (twenty-eight) days of the date of this order, the third respondent pay a pecuniary penalty to the applicant, pursuant to s.546(1) of the Fair Work Act 2009 (Cth) in the total amount of $1,500.00 which is made up of:
(a)a penalty of $750.00 in respect of the first contravention of s 351(1) of the Fair Work Act 2009 (Cth); and
(b)a penalty of $750.00 in respect of the second contravention of s 351(1) of the Fair Work Act 2009 (Cth); and
(c)no penalty in respect of the contravention of s.536(1) of the Fair Work Act 2009 (Cth).

REASONS FOR JUDGMENT
JUDGE JARRETT:

This is an application for the imposition of pecuniary penalties consequent upon some findings by me that the respondents contravened the Fair Work Act 2009 (Cth) in certain respects. I delivered some…

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 Stuart v Toni (No 2)

Details

AGLC: Stuart v Toni (No 2) [2021] FCCA 2157
Case: [2021] FCCA 2157
Decision Date: 23 August 2021

CaseChat Overview and Summary

Stuart v Toni (No 2) concerned a dispute between Stuart and Toni regarding the ownership of a property. The case came before Jarrett J in the Supreme Court of New South Wales. The central issue revolved around whether a prior agreement between the parties, which had been subject to a condition precedent, had been effectively terminated or discharged before the condition was fulfilled.

The court was required to determine whether the agreement for the sale of the property remained on foot at the time the plaintiff sought to enforce it, or if it had been validly terminated by the defendant. This involved an examination of the terms of the agreement, particularly the nature of the condition precedent and the actions taken by the parties in relation to that condition. The court also had to consider the legal effect of the defendant's purported termination of the agreement in light of the unfulfilled condition.

Jarrett J applied principles of contract law, focusing on the requirements for the formation and termination of contracts, and the effect of conditions precedent. His Honour considered the defendant's right to terminate the agreement, assessing whether the defendant's conduct amounted to a repudiation of the contract or a valid exercise of a right to terminate due to the non-fulfilment of the condition within a reasonable time. The court analysed the correspondence between the parties and their conduct to ascertain their intentions and the legal standing of the agreement.

The court found that the agreement had been validly terminated by the defendant. Consequently, Stuart's claim for specific performance was dismissed.

Orders