Tarin v Georgiou Group Pty Ltd - [2014] FCCA 1712

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARIN v GEORGIOU GROUP PTY LTD

[2014] FCCA 1712

Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protection – redundancy.

PRACTICE AND PROCEDURE – Adjournment – failure of respondent’s former solicitor to inform of hearing dates – failure of respondent’s senior officers to make inquiries as to hearing dates – factors for consideration.

EVIDENCE – Objection – hearsay – source of knowledge not included.

EVIDENCE – Objection – lateness of filing of affidavit – content identical to another witness’s earlier affidavit – whether abuse of process.

Legislation:

Evidence Act 1995 (Cth), s.75

Fair Work Act 2009 (Cth), s.570(2)

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42
Federal Circuit Court Rules 2001 (Cth), r.1.03
Federal Court Rules 2011 (Cth), r.29.08

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Christie v Harvey & Hayward (1900) 2 WALR 146
Comcare v A’Hearn (1993) 45 FCR 441
New South Wales Crime Commission v Vu [2009] NSWCA 349
Crompton v Buchanan & Ors [2010] QCA 250
Doyle v Gillespie (2010) 173 ACTR 66; [2010] ACTSC 21
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Goodall v Nationwide News Pty Limited [2007] FMCA 218
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581
Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7
Salter Rex & Co v Ghosh [1971] 2 QB 597
Stephens v Australian Postal Corporation (2012) 202 IR 437; [2010] FMCA 1012
Tandoegoak & Anor v Margeruite Gerard Pty Ltd [2007] FMCA 621

Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28
Walsh v The Greater Metropolitan Cemeteries Trust [2014] FCA 383
Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949

Applicant:

SHAHEER TARIN

Respondent:

GEORGIOU GROUP PTY LTD

File Number:

PEG 242 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

1 August 2014

Date of Last Submission:

1 August 2014

Delivered at:

Perth

Delivered on:

8 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr J Blackburn (direct brief)

Counsel for the Respondent:

Mr A Davidson

Solicitors for the Respondent:

HWL Ebsworth Lawyers

ORDERS (made on 1 August 2014)

That the respondent’s interlocutory application for the trial of this matter set down for a 3 day hearing commencing on 6 August 2014 be vacated and adjourned to a date not before 3 September 2014 for a period of three days be dismissed.
The Court’s consent orders of 3 February 2014, as amended by consent on 17 April 2014 and 29 May 2014, be further amended by, in order (9) substituting “4 days on 6, 7, 8 and 15 August” in lieu of “3 days commencing 6 August”.
Reasons for Judgment to be published from Chambers at a later date.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

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: [2014] FCCA 1712
Decision Date: 8 August 2014

CaseChat Overview and Summary

The applicant, Tarin, alleged that the respondent, Georgiou Group Pty Ltd, contravened the general protections provisions of the *Fair Work Act 2009* (Cth) in relation to his redundancy. The matter came before Antoni Lucev J in the Federal Court of Australia.

The primary legal issue before the Court was whether Georgiou Group Pty Ltd had contravened the general protections provisions by making the applicant's position redundant for a prohibited reason. Ancillary to this, the Court was required to consider whether to grant an adjournment of the proceedings due to the respondent's former solicitor failing to inform them of the hearing dates, and the respondent's senior officers failing to make adequate inquiries regarding those dates. The Court also had to determine objections to evidence, including hearsay and an affidavit filed late that was identical in content to another witness's earlier affidavit, which the applicant argued constituted an abuse of process.

His Honour considered the factors relevant to an adjournment, noting the respondent's lack of diligence in ascertaining hearing dates despite the former solicitor's alleged failure. The Court also addressed the hearsay objection, finding that the source of knowledge was not sufficiently included in the affidavit. Regarding the late-filed affidavit, His Honour found that its identical content to a previous affidavit, coupled with the timing of its filing, raised concerns about an abuse of process. Ultimately, the Court dismissed the application for an adjournment and proceeded to hear the substantive application.

Orders